DAVID KAMUGISHA MULIBO v BUKOP LTD - BUKOBA 1994 TLR 217 (CA)

 DAVID KAMUGISHA MULIBO v BUKOP LTD - BUKOBA 1994 TLR 217 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Omar JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 14 OF 1994 B

(From the ruling of the High Court of Tanzania at Mwanza, Masanche, J) C

Flynote

Civil Practice and Procedure - Change of judge before concluding the trial - Whether

proper - Order 17 Rule 10 of the Civil Procedure Code 1966.

Labour Law - Summary dismissal of employee - Meaning of `employee' in cases of

summary dismissal - Sections 4 and 28(1) of the Security of Employment Act 1964 as

D amended by Act No 45 of 1969.

Labour Law - Meaning of `employee' under the Security of Employment Act 1964 -

Whether the opinion of the Labour Officer is binding on the court. E

-Headnote

The appellant sued the respondent for wrongful termination of employment. At the

commencement of the trial the respondent had raised a preliminary objection to the

effect that the trial court had no jurisdiction because the appellant had been

summarily dismissed. The trial judge ordered the trial to be stayed so that the F

opinion of the labour officer could be obtained regarding whether or not the

appellant was employed in the management of the business of the employer, and

therefore not an `employee' under the Security of Employment Act 1964. That

opinion was obtained and given to the court. The matter was then called before

another judge who proceeded to strike out the case `as incompetent in law'. G

On appeal:

Held:

(i) It was highly irregular and unprocedural for the matter, which was

initially before a judge who had stayed his ruling pending the opinion of the labour

officer, to be heard and determined by another judge; H

(ii) The opinion of the labour officer that the appellant was not a member

of the respondent's management team was no more than a mere opinion which the

court was not bound to follow;

(iii) As there was a triable issue before the court, ie whether or not the

appellant was wrongly terminated by the respondent, the suit was in no way

incompetent. I

1994 TLR p218

Case Information

A Case remitted to the High Court to proceed by the Judge before whom it was

initially heard.

No case referred to.

B Nasimire, for the appellant.

Katabalwa, for the respondent.

[zJDz]Judgment

Mnzavas, JA, delivered the following considered judgment of the Court: C

The appellant, David Kamugisha Mulibo, filed a suit in the High Court against his

former employer, Bukop Ltd - Bukoba, claiming damages for wrongful termination of

his appointment.

D When the case came up for hearing on 14 August 1990 Mr Katabalwa, learned

defence Counsel for the respondent/defendant, raised a preliminary objection to the

effect that the Court had no jurisdiction to hear the case as, it was argued, the

appellant was summarily dismissed. He quoted the provisions of s 28(1) of the

Security of Employment Act 1964 and case law in support of his submission. E

In rebuttal the appellant/plaintiff argued that the suit was for claim of damages and

that he was not questioning his dismissal. In his ruling the High Court (Sekule, J) said

inter alia: F

`... This is therefore a case of summary dismissal and the jurisdiction of this

Court is ousted by Section 28(1) of the Security of Employment Act 1964. The matter

however does not end here because for the jurisdiction of this Court to be ousted, the

second requirement must be met. That is, the plaintiff must show to have been an

employee within the meaning of Section 28(1) of the said Security of Employment

Act, 1964. G

According to Section 2 of the Security of Employment (Amendment) Act

1969, employees who are employed in the management of their employer's business

are exempted from the provisions of the Act and are not therefore employees within

the meaning of Section 28 of the H Security of Employment Act, 1964. The issue

therefore is, was the plaintiff in this case employed in the management of the business

of his employee'.

Act No 45 of 1969 - The Security of Employment (Amendment) Act 1969 amends s 4

of the principal Act regarding the definition of I

1994 TLR p219

MNZAVAS JA

`employee' by adding para (e) which says that an employee also means `any A

employee who, in the opinion of the labour officer is employed in the management of

the business of his employer'.

In deciding on the question whether or not the appellant/plaintiff was employed in

the management of the business of his employer of the High Court (Sekule, J) said

inter alia: B

`... I am inclined to the view that this is a fit case for the labour officer to give

his opinion in terms of section 4(e) as amended by the Security of Employment

(Amendment) Act, 1969 as to whether or not in his opinion the plaintiff was

employed in the management of the business of C his employer. In this regard, I

would adopt the approach of this Court in the case of Walter Jager v Cordura Ltd t/a

Tanganyika Tourist Hotels and Oyster-Bay Hotels (1972) HCD 133: and stay the suit,

and leave it open to either party to this suit to obtain the opinion of the labour officer

under Section 4(e) of the Security of Employment Act as amended by the Security of

D Employment (Amendment) Act No 45/1969 i.e. whether or not the plaintiff was

employed in the management business of his employer. It was so ordered'.

This was on 7 March 1991. On 15 January 1993 the District Magistrate minute to

Sekule, J was to this effect: E

`This suit was stayed, pending opinion of the Labour Officer. The same has

now been obtained and the case is referred back to your Lordship for your

action/advice'. F

Sekule, J in reply to the minute said:

`Let the parties be informed of the Labour Officer's opinion, And the case

should be fixed for hearing or mention so that the effect of the opinion could be

formally dealt with in the presence of the parties'. G

On 24 February 1993 the case came before Masanche, J. On that day the

appellant/plaintiff was present but the defendant was not. The record does not show

whether or not he had been served with notice of hearing. The appellant/plaintiff is

recorded to have told the Court: `I am suing Bukop for dismissing me without

following procedure'. H

The Court (Masanche, J) retorted -

`But the record shows that it has been resolved that you were not a member of

management team. Again, in terms of s 28(1) of the I

1994 TLR p220

MNZAVAS JA

A Security of Employment Act, 1964 Cap 574 this Court would have no

jurisdiction to entertain the case'.

The appellant/plaintiff replied:

B `My Lord I think you can take my case. I think there is an authority of the

Court of Appeal that says that such cases can be entertained. It is the case of Kaijago'.

The Court fixed the 1 September 1993 as the day the ruling would be delivered. It was

indeed delivered on that day and the High Court (Masanche, J) found that the C

Court had no jurisdiction to entertain the case and `struck it out as incompetent in

law'. Aggrieved by the ruling the appellant has come to this Court.

Before us Mr Nasimire and Mr Katabalwa, learned Counsel appeared for the appellant

and the respondent respectively.

D Mr Nasimire, Learned Counsel, argued, after direction from the bench, that the

High Court should have called the labour officer as a court witness to elaborate on his

report that the appellant was not employed in the management of his employer's

business before acting on the report to the detriment of his client, the appellant. It

was also Mr Nasimire's submission that as Sekule, J had stayed the E proceedings

pending an opinion from the labour officer the matter should have been dealt with by

the same judge after the opinion of the labour officer was received. The fact that the

case was placed before Masanche, J was said to be F irregular and we were ordered

that the case be continued to completion before Sekule, J.

In rebuttal Mr Katabalwa, learned Counsel for the respondent, was apparently of the

same view - adding that the whole matter was in confusion as Sekule, J did not finish

his ruling. With respect to the learned Counsel we agree that it was highly irregular

and unprocedural for the matter (which was initially before Sekule, G J who had

stayed his ruling pending an opinion from the labour officer) to be heard and

determined by another judge.

The record is totally silent as to why Sekule, J did not conclude the trial after the

opinion of the labour officer was received. H

Order 17 Rule 10 of the Civil Procedure Code 1966 says:

`Where a Judge or magistrate is prevented by death, transfer or another cause

from concluding the trial of suit, his successor may deal with any evidence or

memorandum taken down or made by the foregoing rules as if such evidence or

memorandum had been taken down or made by him or under his direction under the

said rules and I

1994 TLR p221

MNZAVAS JA

may proceed with the suit from the stage of which his predecessor left it'. A

As none of the impediments mentioned above were present to prevent Mr Justice

Sekule from concluding the trial of the suit, the trial of the suit by Mr Justice

Masanche went counter to the clear provisions of Order 17 Rule 10 of the Civil B

Procedure Code - above mentioned. It is also not irrelevant to mention, if only in

passing, the remark by Masanche, J to the plaintiff - `But the record shows that it has

been resolved that you were not a member of the management team' - (emphasis

supplied). If the learned judge meant that the opinion of the labour C officer had

resolved the issue that the plaintiff was not a member of the management team (and

we think that is what he meant), it is our view that the labour officer's opinion was

mere opinion. It was not evidence, and the Court was not bound to follow it. D

Another observation is that in his concluding remarks Masanche, J said - `I order that

his case be struck out as incompetent in law'. With respect, the suit was in no way

incompetent. There was a triable issue i.e. whether or not the appellant/plaintiff was

wrongfully terminated by the respondent/defendant from his employment, and the

Court proceeded and tried the suit. E

In view of the glaring irregularity mentioned above we have no alternative but to

quash the decision by Masanche, J; and the order thereto is hereby set aside.

The case is remitted to the High Court and hearing should continue before Sekule, J

from where it was stayed and the opinion of the labour officer be put to the parties. F

1994 TLR p222

A