19820608 TZHC Dar es Salaam

IN TEE HIGH COUR"P M '11/i'\\T7f,l',ll~ , JtT DAR FB. SA.LA.AM : MISCELLANEOUS CIVIL Cl~USE NO •. 5 OF 1982 ln the matter of an_ application by A.C. MWil.KYUSA for / leave to apply for an Order of Certiorari an~ Prohibition and In the matter of the·· decision of Permanent Labour Tribunal in labour Dispute No. 12 of 1981 Between A.C. MWAK.YU~A • • . . . . . . . . • • APPLICLNT and ~-,~---- . . . . . . . . . . RESPONDENT RULING MAPIGANO, J.- This· is an application for o~ders of Certiorari,' prohibition and Mandamus. The applicant was an employee of the Tanza:r1?-a Housipg Bank and at the material time he held the post of Deputy Zonal Manager at Mwanza. On 8/11/78 he was dismissed from his employment for what his employer called negligence that .caused loss .of shs. 30,000/=. Aggrieved by the dismissal he caused the matter to· be ref erred to the Permanent Labour Tribunal, ·with a view to re-engagement. Sitting at Mwanza with two assessors,. the Deputy .Chairman heard the evidence and the ar~ents tha~·were pre~ented.by the,parties. The tribunal gave'-:i.-.ts/debision on 10/10/81, finding for the employer ' \ ' on the quespion of negligence. But the tribunal reduced -the penalty, 'so tt> speak, to one of termination with full benefits. The applicant is still aggrieved, hence this application.· As I have said,:, the reason for the termination of his employment was th~~ he suffered from negligence. It happened tba t he an(! a Mr.· Rweyemamu had authorised payrp.ent of shs. 33, 745/75 being "reimbursement as per 'cashier•·-~ cash analysis" ville a :payment voucher. S~bsegu.ehtlJ" a "'6h~qhe bearing no. 00870Q'was drawn and signed by the accountant~ Mr. Bihemo. . .• /2 - .. . ' : . ' 2 ,, ) The other mgnatory, the Zonal Manager Mr •. Mchaki, had . . already subscribed his signature thereon before he went on leave on 8/12/77. Unfortunately the cheque WS?B discrepant. · It was inflated and read shs. 63,745/75 instead of shs. 33,745/75. It was cashed with the National Bank of Commerce, Kenyatta Road Branch, and the difference, shs. 30,.000/=, was not accounted for. A charge was preferred against Mr. Bihemo fort he disappearance of that amount. Mr. Mchaki was on leave up to 12/1/78. Before he started his leave he entrusted to the applicant, as the Acting Zonal Manager, , seventeen cheque folios which he had nllank-signed", w_i th the direction that the applicant would . issue the folios to Mr. Bihemo for subscribing his signature and writing the necessary particulars, should the office require moneys from the National Bar,ik of Commerce during his absence. When he resumed his duties on 13/1/78 thirteen folios out of the lot had been issued to Mr .. Bihemo. The question posed whether folio no. 008700 was one of the thirteen. The tribunal answered that question in the affirmative and was of the opinion that as Acting Zon~ -Manager the applicant deserved blame fo~ feulitlg to superintend the writing of the cheque, notwithstanding that the applicant was not a signatory. ' . Assuming for a moment that this.court has jurisdiction ±o; review the decision of the tribunal, the question is whether · the discretionary remedies asked for can be properly granted: Five grounds are urged in support of this application, namely:- (a) that the decision of the tribunal displays manifest errors of law on its face in that both the relevant payment voucher and the cheque were made out on 17/1/78 when the Zonal Manager himself was present on duty, and not on 7/1/78 when the applicant was Acting Zonal Manager; (b) that the said tribunal failed to act judicially in that the applicant had nothing to do with the signing of the cheque; (c) that the tribunal's decision and a ward is against natural justice as the applicant is penalized for a mistake, action or omission of someone else; ·' ·, .. I ' • J 3 I • t (d) that the tribunal misdirected itself in . ' cons id.ering that the cheque was made out while the applicant was Acting Zonal Manage~ j.e. .,, between 8/12/77 and 12/1/78; and (e) that there was no~ or alternatively insufficient, ev:i;lience t·o" support . the finding tba t t_he cheq~e was made out while the applicant was .Acting . Zo_!i~l Manager~ _, With regard it.a grounds (a), (d) and (e), I think the question whether the payment voucher and the_ cheque were made ·out wben Mr. Mchaki be.d resumed his duties was obviously one of· fact. It might be that this. court llOuld have arrived at a different finding.. However~ factual . . a findings of a tribunal cannot be impugned by· courts,· µnless. they are clearly lacking any reasonable· basis •. With respect, I do not think that the finding of the tribunaJ. on th2,t point was so baseless. The rest of the grounds concern the question of . negligence·. I think I am right in regarding negligence as an infere'nce of fact. Certainly it is a question on which reasonable.men may arrive at different conclusions on the evidence before them. I think that unless a factual inference is perverse it cannot be asserted in court on~ .. , review. Having said t.ha t, :r must consider the point whether thi·s ccurt has any jurisdiction at all to entertai~ this application. I J'ef~r to the sta tu.te. U~der · silbsection ( 1 ) of section 27, oft he Permanent Labour Tribunal Act of 1967, every decision oft he Tribunal "shall be· final and shall not b_e liabl<1 to be challenged, reviewed; ·questioned or called in question in any court save on grounds of lack of jurisdiction." It seems to me that this is one of the instances of the legislature limiting-· the prerogative power of the High Cow-1; as well as the right of the subject to have recourse to it. I think the wording of that proVi$ion is clear enoi,.gh: th~ 3urisdiction of tnis cou~t to review the val:idi ty of, the decision of t_ he J?e:rmanent Labour Tribunal has been ousted, exce-:pt where the question of 'lack of - jurisdiction arises, wJ'lich is not the case in this application. . ... /4' \ rt>i ·w~\$.~' 'l -have st'ated ·herein above, I will dismiss , -·th~ ·al)plication ·. ·and grant costs to the Tanzania Housing Bank. .It is ordered accordingly. Deliyered and Dated at Dar es Salaam this 8th day of June, 1 982.· ... 'Ii • (D. P. MJ;.PIGANO) JUDGE p . J .