20010713 TZHC Dar es Salaam

. •1 .~ ,. p I IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION N0.24 OF 1999 BANK OF TANZANIA ...................... APPLICANT Versus MUKOLAKAA E.J. NKURLU ) AND 5 OTHERS ) ............. RESPONDENTS RULING CHIPETA, J.: -· In these proceedings for leave to appeal to the Court of App(!.alfon : .·; ·; ;--~,_a),.,. I' . . points law, both sides are seeking such leave as both were dissatisfied\wiµi:. . · · · \ the decision of this Court (Kimaro, P.R.M Extended Jurisdiction - as she ' then was). The background of the matter is that a report of the Labour I Commissioner. was filed in Jlala District Court, as Employment Cause no. 5 · of 1996, entitled "Miscellaneous Civil Application no. 5 of 1996".. ·'Th~, · 0 .: • complainants/plaintiffs in the case were:- ME.J. Nkurlu, A.A. Sltarif/,1,C C : '· Tibaijuka, P.M Magigita, O.P.M Dindili, and W.P. Ndeonio. All these. •, had been employed by the respondent/applicant, Bank of Tanz~a,. off-'·.:~.-:.· different dates and diverse jobs. · ·· ' ·; . Out of the six plaintiffs, only ME.J. Nkurlu and P.M Dindili. ga~e 1'· evidence. The evidence of these two witnesses was that in 1993;~ the;r.Qa~l(~'. , : -~;. of Tanzania retrenched some of its workers, including the two witnesses, effective 3J'~, December; 1993. However, the two witnesses were r~queste~; _ ~:•>,! . > .l: : L~· ' j f i·~ • • : ,. /r 9 i • 1 ~1 I by the Bank to continue with their employment until 3P1 January, 1994 within which period they had to hand over their duties. The two witnesses th were paid all their tenninal benefits on 10 January, 1994. In addition, the two were also paid for the month of January, 1994, and it happened that the Bank had by then increased the salaries of its employees. The two were paid as per increased salaries of the employees of the Bank. The other four witnesses did not testify in the case on their own behalf. No reasons were given when the plaintiffs' case was closed. ,,.. On the evidence of the two witnesses, the learned trial magistrate entered judgment for all the plaintiffs, including those who did not give evidence. On appeal to this Court, this court took the view that since the other plaintiffs did not testify, judgment should only have been entered in respect of those two who testified. There was also a question whether the twe employees or ~11 of them. must be taken to have been in continuous.employment up to 31 st January, 1994 and so were entitled to the new rates. This court so held. The employees wish to challenge the decision to the effect that those who did not testify were not entitled to any relief. The Bank, on the other. hand, would like to challenge this Court's decision to treat- the two employees (or all of them) as having been in continuous employment by reason of the fact that they were requested to stay on until 31 st January, 1994. In my view, both questions qualify to be certified as points of law fit · for consideration by the Court of Appeal. The first question is:· in an employment cause in which no representative suit is filed, -can the evidence of some employees only be relied upon in determi111i1g the rights of thos~ who did not testify? The second question is: since the date of termination should have been 31 st December, 1993, what was the legal effect of st requesting the employees to stay on until 31 January, 1994? 2 : ... ' ',••' l ' For these reasons, I grant both applications and accordingly certify the . two points stated above. Costs shall be it ~ cause. (//)~~ B. D. CHIPETA JUDGE 13/7/2001 Coram: F.S.K. Mutungi-DR For the Appellant: Mr. Kishaluli for Mrs Kato rd For the Respondents: lsi and 3 Respondent only CC: Lazarous Court: Ruling read this 13/7/2001 in Court before F.S.K. Mutungi-DR in the presence of Mr. Kisltaluli for Mrs Kato and in the presence of 1st and 3rd Respondents, but in the absence of 2,4,5 and 6th Respondent, who shall g~t them copies of the Requisite Ruling from the Registry. (Sgd): F.S.K. MUTUNGI DISTRICT REGISTRAR 13/7/2001 3