berger paints t vs alford s kweka 2009 tzhc 130 16 september 2009

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL NO. 39 OF 2008 (Originating from District Court at Temeke * Application No. 37of 2007 Before Ngasoma PDM) BERGER PAINTS (T) ......................................... APPELLANT VERSUS ALFORD S.KW EKA........................................RESPONDENT Date o f last Order 10/ 8/ 09 Date o f Judgment 16/07/09 JUDGMENT Mwariia, J. In the district Court of Temeke the respondent filed an application for execution of the decision of the Minister for Labour. In the Minister’s decision, the decision of the Conciliation Board which reinstated the respondent was reversed thereby terminating him from the appellant’s employment. The Minister further decided that the respondent be paid his terminal benefits. Upon the respondent’s application for execution, the district court proceeded to hear the matter as if it were a suit wherein the applicant was interchangeably referred to as the plaintiff. After those proceedings, the learned Principal District Magistrate passed what she termed as a judgment and awarded shs. 1,621,000,000/= to the respondent as his outstanding salary payable in compliance with the Minister’s decision. She later however unprocedurally corrected ' that amount to shs, 1,621,000/= in the subsequent ruling which arose from an application for stay of execution. The appellant through Mr. Muganyizi, learned Counsel preferred an appeal against the decision and the procedure adopted by the learned Principal District Magistrate. In the grounds of appeal, he essentially raised two grounds; that the District Court did not have jurisdiction to hear the application filed by the respondent and that the presiding magistrate erred in ordering execution of unsubstantiated claims. In his submissions, Mr Muganyizi argued that the execution ought to have bear done according to the provisions of S. 27 (1) (c) and (2) of the Security of Employment Act. He said that the respondent was supposed to have filed the decision of the Minister in Court which should have issued an order for re-instatement of the respondent.' Upon failure by the appellant to comply with the order, then parties, had to be heard and alternatively, damages could then be awarded. The learned Counsel concluded by stating that it was wrong on the part of the presiding Magistrate to rely on the calculated amount arrived at by the respondent as if it was the amount determined by the minister for execution. He cited the case of Par es 'Salaam Water & Sewerage v. Dorah Shemdolwa Civil Appeal No. 163 of 2001 to substantiate his submissions regarding a proper procedure. Responding to the submissions by the learned counsel for the appellant, the respondent supported the procedure adopted by the learned Principal District Magistrate. He said that the decision of the Minister was correctly executed and therefore prayed for dismissal of the appeal. Having gone through the execution proceedings and after having considered the submission by the parties, it is a glaring fact that the learned Principal District Magistrate went into an error in the way she treated the matter. A decision of the minister under the Security of Employment Act, cap.387 RE 2002 (herein referred to as “the Act”) is enforceable as if it is a court decree. That is provided for under. S:28 (1) (c) and (2) of the Act. It was therefore wrong to treat execution proceedings' as it was a suit. The Minister’s decision ought to have been treated as a decree of the court. What is to be executed in that decision, however, concerned payment of terminal benefits. There was no order for re-instatement of the respondent as understood by Mr. Muganyizi. As said earlier, the Minister reversed the decision of the conciliation Board which ordered that the respondent be reinstated and instead it was ordered that he should be terminated and be paid his terminal benefits. The proper procedure for execution was for the respondent to file a copy of the Minister’s decision accompanied with the calculations of the terminal benefits prepared by a Labour Officer for execution. The execution should then be proceeded with in accordance with the provision of O.XXI r. 20 of the Civil Procedure Code, Cap. 33 RE.2002 (see the case of Juma Ally Kazivabure v. Tanzania 4 Posts & Telecommunications [1994] TLR 1). Like in the execution of a decree, in case of any dispute on the calculated amount of the terminal benefits, the court would hear the parties and then decide on the proper amount. The execution would then proceed according to the law as stated above. Since the execution of the Minister’s decision was erroneously entertained as found above, the proceedings in the District Court were a nullity. Accordingly, I hereby allow the appeal on the two grounds stated above. The said proceedings are quashed and the purported judgment and the orders arising there from are set aside. The respondent is at liberty to apply afresh for execution of the Minister’s decision in the manner stated in this judgment. I order no costs. JUDGE 16/9/09 5 Date 16/9/2009 Coram: A.G.Mwarija, J. For the Appellant : Absent For the Respodnent : Present in person CC: Butahe Judgment delivered JUDGE 16/9/2009 6