20070206 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC.CIVIL CAUSE NO. 50 OF 2004 AKIBA COMMERCIAL BANK LTD VERSUS C 1. THE MINISTER FOR LABOUR 2. THE ATTORNEY GENERAL ......... RESPONDENTS 3. ALLY KICHAWELE Date of last Order 4/1/2007 Date of Ruling 6/2/2007 RULING ORIYO,J. The facts which led to the application for an order of CERTIORARI are brief and are not in dispute. On 18/2/2000, the third respondent, Ally Kichawele was employed by the applicant bank as a Microfinance Officer. Two years later, on 23/4/2002, through the applicants letter to the third respondent titled SALARY REVIEW, the latter was informed of the terms of the Contract of Service with the applicant. One of the terms was the right of either party to terminate the contract. About 7 months thereafter, on 30/11/2003 the applicant terminated the services of the third respondent without assigning any reasons thereof. . ". ,.. The third respondent was aggrieved and made a reference to the Ilala District Conciliation Board on 5/12/2002 against the applicants action of terminating him without reasons. The reference was made through the Workers' Union; TUICO, Ilala, Dar es Salaam . .. ; The decision of the Board was delivered on 24/3/2003 by ordering the applicant to reinstate the third respondent and pay him all salary arrears and other dues as entitled. The reason given for the Board Decision was that the applicant had failed to inform the third respondent the reasons for the termination of employment. The applicant felt unhappy with the Board's decision and appealed to the Minister for Labour, the first respondent. The Minister upheld the decision of the Conciliation Board and for the same reasons; on 4/11/2003. The applicant lodged the application for the order of Certiorari to remove to this Court and quash the Minister's decision of 4/11/2003; for two reasons. The first reason was termed "Jurisdiction Ultra Vires" in that the Board decided a reference made to it beyond the 14 days statutory period; that is the Board had no jurisdiction to determine the matter. Similarly it was argued that the Minister had no jurisdiction to determine and confirm the decision of the Board made Ultra Vires. The second reason was "Unreasonableness" The argument was made on two limbs. The 2 first limb of unreasonableness of the decision of the Minister was to determine a matter which had been referred to the Board out of time. The second limb was that the Ministers decision confirmed the Boards decision despite the fact that the applicant had a right to terminate the third respondent's employment by virtue of the letter of the applicants letter dated 23/4/2002 (supra) to the third respondent. Before going into the merits of the application, let me make one observation here. It is trite law that submissions are mere arguments and not evidence. In this application the evidence is found in the affidavits and/or the annextures there on. So when the applicant alleged in its STATEMET at paragraph 6 (a) that the reference to the Board was made on 18/2/03 after the expiry of 14 days, the third respondent disputed the allegation in his counter affidavit dated 11/6/2006. By paragraph 7 of the counter affidavit the third respondent stated that the dispute was referred to the Board on 5/12/2002 and not 18/2/2003 as alleged. To fortify what was stated, the third respondent attached Annexture "A" which was "Karatasi Na 4A"dated 5/12/2002 filed before the Board by TUICO Ilala District on behalf of the third respondent. The applicant did not file an affidavit in Reply to controvert the contents of paragraph 7 above. So the applicant's last opportunity to dispute that the reference was not filed on 5/12/2002 was lost; and it remained as a 3 fact on record that the reference was made to the Board on 5/12/2002 and not otherwise. Now on the merits of the application for the order of certiorari to issue. On the first ground of Jurisdictional Ultra Vires; it has been pointed out that according to the record, the reference to the Board was made on 5/12/2002 which was only 6 days after the termination of employment. Therefore the third respondent reference to the board was made within time and the Board had correctly exercised its jurisdiction to determine the dispute which was properly before it. If the matter was properly before the Board for determination; then the issue of illegality or lack of jurisdiction by the Minister to determine and uphold the Board decision does not arise. Both the Minister and the Board had jurisdiction to determine the matter as they did. So the first ground lacks merit and fails. The first limb on the ground of unreasonableness has already failed because it was based on lack of jurisdiction. The second limb was based on the applicants contractual right to terminate the third respondent. It was not in dispute that the applicant had a right to terminate and dismiss summarily as per letter of 23/4/2002. What was in dispute was the applicant's failure to five the third respondent the reasons for his termination. It is a cardinal principle of law that no one should be condemned without being heard. The third respondent was denied the right to be heard because he was not 4 It given the reasons for the termination. The applicant's decision _to terminate employment without revealing the reasons thereof were contrary to the· rules of natural justice and therefore illegal. c The second ground also lacks merit and fails. On the basis of the foregoing, the~ applicant has failed to -~ establish any instance of contravention of the law by the Minister's decision. Therefore the Ministers decision of 4/11/2003 was legally issued and valid. In the event, the order of certiorari is not issued as there are no grounds upon which it can be issued. ~· The application is dismissed with costs. 1 K.K~ Judge C::{~AJDl-- 5