KLM ROYAL DUTCH AIRLINES v JOSE XAVIER FERREIRA 1994 TLR 230 (CA)

KLM ROYAL DUTCH AIRLINES v JOSE XAVIER FERREIRA 1994 TLR 230

(CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Mfalila JJA and Lubuva JJA G

CIVIL APPEAL NO. 23 OF 1993

11 November, 1994

(From the decision of the Court of Tanzania at Dar es Salaam, Bahati, J) H

Flynote

Labour Law - Jurisdiction - Summary dismissal - Ouster of the jurisdiction of the

court - Section 28 of the Security of Employment Act, 1964. I

1994 TLR p231

Labour Law - Jurisdiction - Summary dismissal - Whether the court can split suit into

A compartments so as to exclude claims based on summary dismissal.

Civil Practice and Procedure - Amendment of cause of action - Whether judge can

amend pleading without application of the parties. B

-Headnote

This is an appeal against the decision of the High Court of Tanzania which, having

accepted a preliminary objection that the court had no jurisdiction to hear the suit

because it concerned summary dismissal, the court nevertheless proceeded to split the

entire suit into separate compartments and held that as not all reliefs C claimed were

based on summary dismissal, the court had jurisdiction to hear and determine those

claims which were not based on summary dismissal.

Held:

(i) Section 28 of the Employment Act, 1964, ousts the jurisdiction of the

court in cases of summary dismissal, proposed summary dismissals D and salary

deductions as a disciplinary penalty; since the three situations have nothing to do

with one another, they can be taken independently of each other;

(ii) The court cannot split a claim once it is partly found to be based on

summary dismissal and the claims in this case were so interwoven on their

foundation; E

(iii) The court cannot take upon itself, without application from the parties,

to amend the basis of the cause of action merely to take the claim away from the

ouster clause of s 28 of the Security of Employment Act.

Case Information

Appeal allowed. F

Cases referred to:

(1) Kitundu Sisal Estate v Shingo and Others [1970] EA 551.

(2) Mohamedi and Others v Manager, Kunduchi Sisal Estate [1971] HCD

430. G

(3) Allimasi v MS Kerewala Ltd, [1974] LRT 39.

Majithia, for the appellant.

Mbuya, for the respondent.

[zJDz]Judgment

Mfalila, JA, delivered the following considered judgment of the Court: H

The respondent, Jose Xavier Ferreira, sued his erstwhile employers, Royal Dutch

Airlines, otherwise popularly known as KLM by its acronym, claiming an assortment

of reliefs including unpaid salary, transport and meal allowances and other

reimbursements plus in- I

1994 TLR p232

MFALILA JA

A terest at 31 per cent per annum from the date these payments were due to the

date of judgment and at a further 31 per cent interest on the damages from the date of

filing the suit to the day of judgment. The basis of these claims is contained in

paragraph 6 of the plaint which is in the following terms:

B `Furthermore, the defendant willfully and without any notice, cause or

justification in contravention to the defendant's regulations as contained in the

aforesaid conditions of employment - Local Staff Tanzania, unilaterally stopped the

plaintiff from attending to his duties with affect from 20th November 1986 and until

to-date has not lawfully terminated plaintiff's employment'. C

In his written statement of defence and at the beginning of the trial in the High

Court, the defendant, the present appellant, raised preliminary points challenging the

jurisdiction of the Court dn that the plain disclosed no cause of action. In D support

of the preliminary point, Mr Majithia argued on the High Court that as this was a case

of summary dismissal, the jurisdiction of the Courts was ousted by s 28 of the Security

of Employment Act. The High Court (Bahati, J) agreed with Mr Majithia that this was

a summary dismissal case and that therefore the jurisdiction E of the court was

ousted by s 28 of the Security of Employment Act. After making this finding, the trial

judge then proceeded to recategorize the entire suit into separate compartments and

held that as not all the reliefs claimed are based on summary dismissal, the court has

jurisdiction to hear and determine those claims which are not based on summary

dismissal. He said: F

`But not all the claims in this case are based on summary dismissal. In

paragraph 5 of the plaint there are claims for remuneration from March 1984 to-date,

reimbursement of money G paid by plaintiff to purchase tickets, failure by defendant

since 1985 to honour fully the plaintiff's free and reduced fare air travel facilities.

These claims are not based on summary dismissal because they are from 1984 whereas

summary dismissal was in November 1986. These claims have, therefore nothing to

do with summary dismissal and as such they cannot be excluded by Section 28 from

the jurisdiction of this Court'. H

The judge therefore held that the jurisdiction of the Court was not ousted by s 28 and

he ordered the case to be heard and determined on merits. Against this ruling, the

appellant Airline lodged this appeal complaining that the learned judge having found

that there was summary dismissal, erred in not rejecting the plaint and I

1994 TLR p233

MFALILA JA

dismissing the suit and that therefore the learned judge erred in ruling that the A

Honourable Court had jurisdiction to entertain claims based on summary dismissal.

At the hearing of the appeal, Mr Majithia, learned counsel who advocated for the

appellant, submitted that having determined that this was a case of summary B

dismissal, the judge should not have decided to proceed with the case on merits on

the basis that some of the claims which he enumerated were not claims which he said

were not summary dismissal flowed directly from such summary dismissal.

In reply, Mr Mbuya, learned counsel who appeared for the respondent, argued that C

the definition of summary dismissal enunciated in Kitundu Sisal Estate v Shingo and

Others (1) is erroneous because it defined summary dismissal without taking into

account the definition given in the Act itself namely that under the Act, termination

becomes summary dismissal if there is intention to take disciplinary D action, and

that since in the present case the only intention was to terminate the respondent's

services with the appellant, such termination could not be summary dismissal ousting

the jurisdiction of the courts under s 28 of the Security of Employment Act. Mr

Mbuya concedes that the High Court was bound by the E definition in the Kitundu

case but he said that this court is not. He supported the judge's action of severing the

claims into those falling under the prohibition of s 28 and those which do not. He

argued that claims available prior to the termination are not interwoven with the

summary dismissal hence they can be severed. F

We start with Mr Mbuya's second argument that this was not a summary dismissal

case because no disciplinary action was envisaged. Mr Mbuya based this argument no

doubt on the wording of s 28 of the Security of Employment Act which provides as

follows: G

`28 - (1) No suit or other civil proceeding (other than proceedings to enforce a

decision of the Minster or the Board on a reference under this part) shall be

entertained in any Civil Court with regard to summary dismissal or proposed

summary dismissal or a deduction by way of disciplinary penalty from wages of an

employee'. H

If Mr Mbuya sat back and reflected, he would no doubt find as we do that this section

bars three types of situations from being actionable in Civil Courts. First, all summary

dismissals, second all proposed summary dismissal and thirdly all deductions as

disciplinary penalties from wages of employees. It is quite obvious that I

1994 TLR p234

MFALILA JA

A the first two situations have nothing to do with the third situation in which an

employer deducts a sum from the wages of his employee as a disciplinary measure.

Since the three situations have nothing to do with one another, they can be taken

independently of each other. Hence, the Court of Appeal in the Kitundu case could

not have defined summary dismissal with reference to the disciplinary action

envisaged under a different situation. B

We return to the High Court finding that since not all the respondent's claims can be

regarded as flowing from the summary dismissal, then these other claims which do

not are actionable in a Civil Court. According to the learned judge, these include all

those claims which arose before the summary dismissal in November 1986. C

In our view the first objection against this line of reasoning is that it conflicts with

two earlier decisions of the case Court, decisions with which we are in agreement.

The effect of these two decisions is that you cannot split the claim once it is found to

be based on summary dismissal. The first of these cases is Mohamedi & D Others v

Manager Kunduchi Sisal Estate (2).

In that case fifty six persons who were employed by the Kunduchi Sisal Estate, sued

their employer claiming Shs 81,741/= as compensation because of E termination of

their services without notice. This sum comprised of severance, leave and travel

allowances as well as month's wages in lieu of notices. The Court held that the basis

of the claim was summary dismissal and that by s 28 of the Security of Employment

Act Cap 574 the jurisdiction of the Court was ousted. In his own words Onyiuke, J

held: F

`When an employee is dismissed summarily without justification he has a

cause of action against the employer, that is to say he can bring an action of summary

dismissal against the employer. Usually it takes the form of action for damages. These

damages may be general or G special depending on whether the employee is

claiming a specified amount such as severance allowance or annual leave pay (special)

or is asking the Court to assess his loss such as the claim for reasonable notice

(general). These claims have to be founded on the cause of action . . . . Assuming

without deciding the point that Section 32(b) provided an alternative remedy, the fact

still remains that the cause of action is basically one for summary dismissal'. H

Similarly in the present case, the claims which the learned judge attempted to sever

from the rest, are all founded or based on the wrong described in paragraph 6 of the

plaint namely that the defendant (present appellant) `willfully and without any

notice, cause of justi- I

1994 TLR p235

MFALILA JA

fication . . . unilaterally stopped the plaintiff (present respondent) from attending to

A his duties with effect from 20th November 1986....'.

The second case is Allimasi v M S Kerewala Ltd (3). That case commenced in the

District Court as a result of a report submitted by the Labour Office Mtwara to the

District Court under s 132 of the Employment Ordinance. The appellant was a B

driver by calling. The respondent was a limited liability company carrying on

quarrying operations among other activities in Mtwara/Mikindani. The appellant's

case was that he was employed by the respondent in 1959 as a driver on a monthly

wage of Shs 250/= and that he had worked continuously for the C respondent up to

20 October 1971 when his employment was terminated without notice, and without

payment in lieu of notice. He claimed Shs 250/= being one month's wage in lieu of

notice and Shs 1,625/= being severance allowance for fifteen years continuous service.

D

The trial magistrate treated the appellant's claim as one of summary dismissal holding

that since the plaintiff was neither given a notice nor paid in lieu of notice, then his

termination in law is that if summary dismissal and that therefore he had no

jurisdiction under s 28 of the Security of Employment Act. Against this decision E

the appellant appealed to the High Court where one of the points raised in his favour

was whether the appellant's claims could be treated separately so that his claim for

severance should have been entertained in the Court below, and that if this was

possible the learned judge should not have dismissed that part of the appellant's

claims for want of jurisdiction. Sections 3, 4 and 11 of the Severance F Allowance

Act Cap 487 were cited in support of this submission. Section 3 provides:

`3 - Subject to this Act where an employee has been in the continuous

employment of an employer for a period of three months or more and, on or after the

twenty fifth day of June 1962: G

(a)(1) The employment is terminated by the employer ... the employer shall

pay to the employee a severance allowance'.

Section 4(1) of the Act provides: H

`An employer shall not be liable to pay any severance allowance to or in

respect of any employee who:

(a) Immediately before the cessation of his employment was

(1) -

(2) A casual employee

(b) Was summarily dismissed for lawful cause. I

1994 TLR p236

MFALILA JA

A And s 11 provides as follows:

`The amount of any severance allowance which an employer is required to

pay to or in respect of an employee, may be recovered by the employee or in the

event of his death by any of his dependants by suit as a debt to such employee or to

such dependants'.

B Onyiuke, J held as follows:

`I do not think that Section 11 of the Severance Allowance Act can be sued to

bypass the mandatory provisions of Section 28 of the Security of Employment Act.

The basis of the C appellant's claim whether in respect of the one month's wage or in

lieu of notice or of severance allowance was that his employment was wrongfully

terminated, that is to say summary dismissal for lawful cause and that he was

therefore entitled to his claims. But for Section 28 of the Security of Employment Act

the Court would have to inquire into the issue of D wrongful dismissal. The effect of

Section 28 however is to oust the jurisdiction of the Court to do just that. I hold that

the appellant's claims are so interwoven that they fall within the ambit of prohibitory

provisions of Section 28 of the Security of Employment Act and that the learned

Magistrate was justified in dismissing his claim for lack of jurisdiction'. E

We are also able to say in this case that all the respondent's claims are so interwoven

on their foundation that they fall within the ambit of the prohibitory provisions of s

28 of the Security of Employment Act. We are satisfied that had the F decisions in

these two cases been brought to the attention of the learned judge, he would most

certainly have followed their powerful reasoning and conclusions.

The second objection to the learned judge's reasoning is procedural. The learned

judge's approach amounted to amending the plaint at that stage of the G proceedings

and indeed that is what Mr Mbuya was asking us to do. The learned judge could not

take it upon himself to amend the basis of the cause of action without application

from the parties merely to take the claim away from the prohibitory provisions of s

28. It is even more remote in this Court. H

Since as the learned judge found the respondent's claims were based on summary

dismissal, the jurisdiction of the courts was ousted by s 28 of the Security of

Employment Act, the learned judge should have allowed the preliminary objection

and dismissed the claim.

Having so decided on the question of jurisdiction, we feel it is I

1994 TLR p237

unnecessary to consider the second limb of the appellant's preliminary objection A

namely whether the respondent's plaint disclosed a cause of action.

For these reasons we allow the appeal and order that the respondent's claim be

dismissed for want of jurisdiction. The appellant will have their costs both in this

Court and in the Court below. B

1994 TLR p237

D