20090916 TZHC Dar es Salaam

· IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 39 OF 2008 . . (Originating from District Court at Temeke · Application No. 37of 2007 Before Ngasoma PD M) BERGER PAINTS (T) ....................................... ~~APPELLANT 1 VERSUS ALFORD S.KWEKA ....................................... . RESPONDENT Date of last" Order 10/ 8/ 09 Date of Judgment 16/ 07I 09 JUDGMENT Mwarija, 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 I ~- ', 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 2 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 I determ~ned by the minister for execution. He cited the case of I Dar es Isalaam Water & S~werage 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 int_o an error in the way she treated the matter. A decision of the 3 r. minister under the Security of Employment Act, cap.387 RE 200~ (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 ac:c9.mpanieci 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 Kaziyabure v. Tanzania 4 Posts & Telecommunications [ 1994] TLR 1). Like. 1n 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 de_cide 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 entertain•ed 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 a·side. 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. +IYi A.G!'Mwarija JUDGE 16/9/09 5 Date 16/9/2009 Coram: A.G.Mwarija, J. For the ~ppellant : Absent · For the Respodn~nt: Present in person CC: Butahe Judgment delivered . \ C) A.Giarija JUDGE 16/9/2009 6