ac mwakyusa vs tanzania housing bank 1982 tzhc 24 8 april 1982

IN THE HIGH COUK'T re? »pwv ft*’*• AT DAR BS SALAAM MTRn^TiTiATTEOUS CIVIL CAUSE NO. 5 OF 1982 In the matter of an application by A.C. MWAKYUSA for leave to apply for an Order of Certiorari and Prohibition and 9 In the matter of the decision of Permanent Labour Tribunal in Labour Dispute No. 12 of 1981 Between A.C. MWAKYUSA . . . . . . . . APPLICANT and TANZANIA HOUSING.BANK . . . . KSSPONDENT RULING MAPIGANO, J.- This is an application for orders of Certiorari, prohibition and Mandamus, The applicantt was an employee of the Tanzania Housing 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 l'oss of shs. 30,000/=. Aggrieved by the dismissal he caused the matter to fie referred 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 arguments that were presented by the ,parties. The tribunal gave its decision on 10/10/81, finding for the employer on the question 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 thqtf he suffered from negligence. It happened that he anil & Mr. Rweyemamu had authorised payment of shs. 33,745/75 being "reimbursement as per cashier’s cash analysis" vi$e a payment voucher. SttbeequMiflj a cheque bearing no. 0(^700'was drawn and signed by the accountant , Mr. Bihemo. /2 - 2 - The other signatory, the Zonal Manager Mr. Mchaki, had already subscribed his signature thereon before he went on leave on 8/12/77. Unfortunately the cheque wee 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 for the 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 "fclaalc-signed”, with 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 Bank 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 Zonal Manager the applicant deserved blame fov fselling to superintend the writing of -the cheque, notwithstanding that the applicant was not a signatory. Assuming for a moment that this.court has jurisdiction to 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; , . . / 3 - 3 - ) that the tribunal misdirected itself in theT ^ thG °heqUe WaS made out while pplleant was Acting Zonal Manager A.e. between 8/12/77 and 12/1/78; and (e) that there was no, or alternatively insuffiri^+ evidence to support the finding that the cheque ’ Z o n a l the aPPli0Snt WaS wnetner the payment (a)> (a)voucher“ * ( me d )- 1 u made out when Mr Mcbaki h * cheque were iiz, actiaki had resumed hin rh,+4 a„ obviously one of feet. It might be that +* have a rriv ed a t a d i f f e r e n t f l r t - ^ co u rt « ,u ld f in d in g s o f a t r ih , „ •. f “ d“ 6 . However, f a c t u a l tribunal cannot be imptumed- w 1 they are clearly lacking mpugned by courts, unless t A . lacking any reasonable basis w-i+v, ■* - « « r - * - a s an in fe r e n c e of f a c t . C er ta in ly i “ e e l i « enoe which r . a a . r t x e men may a r r lv e ^ * *» * “ <**»» on on th e evid en ce before L „ !k d;Lffere,lt co n clu sio n s in fe r e n c e l s p e r m it - * , ^ review . l t 0aMOt be a sse r te d in court on a H aving s a id t h a t , I o u s t c o n sid e r th e »„■ o c u r t has any j u r is d ic t io n at a l l t„ 1 ! . ^ th iS a p p lic a t io n . I , ef e r to th e s t a t u t e u V ”1 ^ Of section 27 of the Permanent lab ’ m subsection (1 ) 1967, every decision „ f ffc T tribunal Act of shall not be liable to be c h a l l e ^ d "Shail b° f“ al and or called in question in any c o u ^ ^ I v r ^ 6”64' <JUestione<s lack of jurisdiction » t + grounds of °f the instances of the , ^ ttot t U s is <*» power Of the High Court as81* ™ tUr8 linit:toe the Prerogative t o have r e c o u r se to lt I “ b* « * i s c le a r enough: th o j u r is d ie + i * VOrilne ot th a t P r o v is io n the ^ ^ i t y of.the d e ™ 0:1 , : , : ^ 8 » « • h as been o u ste d , ex cep t where the ’™anent la b o u r T ribunal j u r is d ic t io n a r i s e s , T L T is 2 T * °* ^ °f application. oase in tkis • * « / 4 tr&a$ I -have stated herein above, I will dismiss the application and grant costs to the Tanzania Housing Bank, .It is ordered accordingly. Delivered and Dated at Dar es Salaam this 8th day of June, 1982, (D. P. MAPIGAM)) JUDGE