20120917 TZHC Dar es Salaam

,' 4... 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPEAL NO~ 12 OF 2008 CORAM: A. SHANGWA, J., MURUKE, J. AND JUMA, J. ALUMINIUM AFRICA LIMITED . . . . . . . APPELLANT Vs 1. ANANDUMI MBISE . . . . . . . . . 1 sT RESPONDENT 2. MOHAMED OMARI . . . . . . . . . 2No RESPONDENT Date of last order - 21/ 9/ 2011 Date of Judgment- 17/9/2012 JUDGMENT Shangwa, J. This is an appeal against the decision of the Industrial Court in Revision No. 25 of 2007 dated 15 th October, 2008. Counsel for the Appellant Ms. Hamida Sheikh listed ten grounds of appeal but in our view the 2nd, 3 rd and 7 th grounds of appeal are sufficient to dispose of this appeal. These grounds read as follows and we quote: 2 "2. The Industrial Court of Tanzania erred in law and in fact itt rewarding the Respondents beyond the amounts allowed under the law. 3. The Industrial Court of Tanzania erred in law in granting orders that the Respondents had never prayed for. 7. The Industrial Court had failed to state its reason for coming to its decision". These grounds were argued by counsel on both sides by way of written submissions as ordered by this Court. Ms. Hamida Sheikh appeared for Appellant and Mr. Biseko appeared for Respondent. 3 On ground 2, learned Counsel for the Appellant contended that the awards granted by the Industrial Court of Tanzania are punitive, out of proportion with the amount allowed by law and that are like the proceeds of a lottery. He submitted that it seems the Respondents were awarded for their wrong doing and that what was awarded by the Industrial Court in its revisional jurisdiction is against the principles of fairness, equity and natural justice. In reply, Counsel for the Respondents submitted that the Revisional Court properly and fairly varied the decision of the trial court for awarding three years salaries instead of only one year. He con tended that by so doing, the Revisional Court was not over generous as the Respondents were supposed to be reinstated and paid all their benefits for six years at the time of the decision and that varying the three years award downward would be unfair to the Respondent. 4 In rejoinder, counsel for the Appellant submitted that the presiding Vice-Chairman's order that the Respondents (employees) be paid a twelve months salary in lieu of reinstatement was 1n accordance to the provisions of section 40 A (5) and · 40 A (5) (b) of the Security of Employment Act Chapter 574. The issue to be considered on the 2 nd ground of appeal 1s whether or not the awards which were granted to the Appellants are punitive, out of proportions or over generous. In its revisional judgment, the Industrial Court awarded the Respondents the following reliefs:- 1. Three years salary from (3/8/2003 up to 2/8/2006) instead of one year salary awarded by a single Vice- Chairman Samba as he then was. 2. One months salary in lieu of notice. 5 3. Subsistence allowance in accordance with their gross salary per month from date of judgment until final satisfaction of the Awards. 4. Fare from Dar es Salaam to their places of domicile for each Respondent, his wife and four children if any plus costs for transportation of their domestic goods from Dar es Salaam to their places of domicile. For the reasons to be given 1n the course of this judgment, we agree with learned counsel for the Appellant that the awards granted by the Revisional Court to the Respondents are punitive, out of proportions and over generous. Ms. Hamida Sheikh well described them to be like the proceeds of a lottery. We so agree with Ms. Hamida Sheikh because the Respondents were summarily dismissed from employment by their employer (Appellant) due to gross misconduct causing their employer to suffer ' ' 6 loss of Tshs.30 Million which arose from theft of G.I. roofing sheets the property of their em player through conspiratorial devices. Although upon inquiry, it was found by the Industrial Court that the Respondents dismissal was unlawful, the awards given to them by the Revisional Court were out of proportions. We think therefore that the 12 months salary from the date they were dismissed i.e. from 4/8/2003 to 3/9/2004 and severance benefits awarded by the Industrial. Court in the exercise of its original jurisdiction were quite enough. Thus, we quash the awards which were granted by the Revisional Court and restore the award which was given by the Industrial Court in the exercise of its original jurisdiction. On ground 3, learned counsel for the Appellant contended that the Revisional Court's Order did not correspond to the Respondents' prayers. She said that the 7 Respondents had prayed for re-employment and not reinstatement in their application for revision. Learned counsel for the Respondents did not make any reply to the submissions by counsel for the Appellant in respect of the 3 rd ground of appeal. This means that he conceded to her submission that it was an error on the part of the Revisional Court to order for reinstatement instead of re-employment. On our part, we hold that the Revisional Court erred 1n awarding a prayer which had not been asked for. On ground 7, · learned counsel for the Appellant submitted that the Revisional Court did not give reasons for changing the award from what she said was reasonable to what she said was over generous. She contended that it was not sufficient for the Revisional Court to hold that awarding 12 months salary to the Respondents was not enough. ' \ ' 8 At page 6 of his written submissions, learned counsel for the Respondent submitted that the reasons for the decision appealed from are well stated in the decision of the Revisional Court. That is, that the twelve months salary is not enough to compensate employees whose dismissal was invalid. However, the Revisional Court did not give any reason as to why in its judgment, the award of twelve months salary was not enough. The said court did not expressly state that the award of twelve months to the Respondents is not enough on grounds that their dismissal was invalid as presented by counsel for the Respondents. In brief, no reasons were given by the Revisional Court for stating that the afore said award was not enough. The need for any decision maker to give reasons for his or her decision cannot be over-emphasized. The authorities to that effect are legion. fj I 9 In conclusion, we allow this appeal. However, each party has to bear its own costs. ~ A.Shangwa JUDGE z~OF-} 17/9/2012 c; ,..,, • '\ ,. <to.' ICT t,~G'',, JUDGE 17/9/2012 -t I. H. Juma JUDGE 17/9/2012 10 Delivered in open court in the presence of the Respondents and 1n the absence of counsel for the Appellant with notice of her absence this 17 th day of September, 2012. ~ A.Shangwa JUDGE .. :;;,:-:-- :t Of r c; 17/9/2012 -..,. 7 i ~ I ~· '\~'r' ICr t.~G'~ · JUDGE 17/9/2012 -l I. H. Juma JUDGE 17/9/2012