Mtenga v. University of Dar es Salaam Civ. Case 39-D-71; Biron J.

Mtenga v. University of Dar es Salaam Civ. Case 39-D-71; Biron J.

The plaintiff claimed damages for wrongful dismissal. He was engaged as an administrative assistant by the University of Dar es Salaam on probation for one year. Under regulations covering the terms and conditions of service the plaintiff’s appointment could be confirmed by the Principal after one year or he could be confirmed by the Principal after one year or he could at (regs. 14 and 15) his discretion extend the period of probation. A probationary appointment could be terminated by the Principal giving three months’ notice to an employee (reg. 16). The plaintiff who was appointed in June 1968, was given an increment of Shs. 60/= in January 1969. On the 15^th August 1969, the Principal wrote to him extending his probation up to December 31, 1969. Plaintiff received another increment of Shs. 60/= in January 1970. On 2^nd May 1970, the Principal by letter terminated the plaintiff’s appointment with immediate effect and offered one month’s salary in lieu of notice. Plaintiff commenced proceedings which were heard by the Permanent Labour Tribunal arguing that he had been confirmed in his appointment and was entitled to three months’ notice before dismissal. The Permanent Labour Tribunal found that he plaintiff had been confirmed and that he was entitled to three months’ salary in lieu of notice, but that it was not in the interests of industrial harmony to order reinstatement. Plaintiff then filed this suit. The defences of the University were that; (a) the court had no jurisdiction to hear the suit; and alternatively (b) the plaintiff’s employment was lawfully terminated.

Held: (1) “The ground or basis for the submission that the Court has no jurisdiction is section 27(1) of the Permanent Labour Tribunal Act, 1967 which reads: “27.-(1) Every award and decision of the Tribunal shall be final and shall not be liable to be challenged, reviewed, questioned or called in question in any court save on the grounds of lack of jurisdiction.” The plaintiff’s case was referred to the Permanent Labour Tribunal by the Labour Commissioner under s. 10 of the Permanent Labour Tribunal Act and under s. 27 of the same Act the Tribunal could make an award, report or decision or give advice. “Although ‘award’ is defined in section 3 of the Act as;- “’award’ means an award made by the Tribunal and includes a negotiated agreement or a voluntary agreement which is registered by the Tribunal as an award;” neither ‘decision’ nor ‘advice’ is defined, and the court has to decide on and define these terms.” (Learned State attorney for the University had argued that before the Tribunal gave its advice it came to a decision on the facts and therefore according to section 27, the court had no jurisdiction) …….. “The cardinal principle of interpretation and the most elementary canon of construction is that in construing a statute or a written agreement words should be given their natural and ordinary meaning. I find it incomprehensible how anybody could equate … an advice wit either an award or a decision. It is trite to observe that a court is, and has to be for the protection of the public, jealous of its jurisdiction, and will not lightly find its jurisdiction ousted. The legislature may, and often does I am afraid, far too often oust the jurisdiction of the court in certain matters, but for the court to find hat the Legislature has ousted its jurisdiction, the legislature must so state in no uncertain and in the most unequivocal terms……. The jurisdiction of the court is no ousted by an advice given by a Labour Tribunal in a dispute referred to it under section 10.” (2) “I have perused the Regulations … but nowhere could I find any provision as to how confirmation is effected and how, or , rather, in what manner, confirmation is notified to an employee… when the plaintiff was asked why he took no steps when he received the letter from the Principal dated the 15^th of august 1969 extending his probationary period, he said he simply ignored it because, having already received an increment, he considered himself as having been confirmed … Reading and re-reading these Regulations, (14,15 and 16) I cannot spell out from them that the fact that the plaintiff was kept on after the expiry of the probationary period as laid down, and that an increments or increments has or have been paid, ipso facto establishes that the officer, who was originally appointed on probation, has in fact been confirmed by the Principal, for, as is crystal clear from the Regulations, it is only the Principal who has the power to confirm an officer in his appointment.” (3) The plaintiff’s appointment was lawfully terminated. (4) Claim dismissed.