20170214 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) Civil Appeal No. 10 of 2015 DODOMA MUNICIPAL COUNCIL .................... APPELLANT VERSUS REHEMA CHITINDE KIMBOKA RESPONDENT JUDGMENT 29/12/2016 & 14/02/2017 SEHEL, J. This appeal arises from the decision of the District Court in Civil Case No. 41 of 2013 wherein the appellant was ordered to pay the respondent her pensions; all entitlements to the LAPF; unspecified amount for general damages; interest at compounded rate; and costs of the suit. The facts that gave rise to the present appeal are such that the respondent was an employee of the appellant till 2012 when she decided to resign from her work. After, her resignation, she started to make a follow for her pensions and found out that no money had been deposited to LAPF. The respondent decided to institute the present suit claiming among other thihgs a declaratory order that 1 the appellant be ordered to pay all entitlements of the respondent to the LAPF. The trial court decided in favour of the respondent by granting all the prayers prayed in the plaint. Dissatisfied with the decision, the appellant appealed to this Court. with six grounds of appeal. The six grounds were merged by the appellant in its written submission into two. The first ground dealt with jurisdiction of the trial court and the second ground dealt with the contents of the judgment. By order of this Court, the appeal was . disposed by way of written submissions. On issue of jurisdiction, the appellant in its written submission stated that since the respondent's claim in her plaint was in respect of payment of her entitlements ensued from termination of her employment contract then she ought to file her dispute at the Commission for Mediation and Arbitration (CMA) and not to institute a civil suit. For the second ground it was argued that the trial court failed to make analysis and evaluation of evidence since if does not contain points for determination The respondent in her submission replied in respect of the first ground that the trial court had jurisdiction since the controversy was not about labour matter rather it was about payment of pension which is a civil claim. For the second ground, she submitted that the judgment issued by the trial court complied with the provisions of Order XX Rule 4 of the Civil Procedure Act, Cap.33. I prefer to start with the second ground. The complaint on this ground is that the trial Court failed to analyse and evaluate the evidence adduced. The proceedings of the trial Court shows that the trial Court framed and recorded issues which the right decision of the case will depend. The framed issues are: Whether the Plainfiff is entitled for payment of Tshs. 1,297,500/= being transport fee for luggage after being resigning from employment; Whether the Plaintiff is entitled for payment of Tshs. 168,000/= being transport allowance for four people; 3 Whether the Plaintiff is entitled to be paid Tshs. 4,115,000/= being salary for ten months from Jan. 2013 to the date of judgment; Whether the Plaintiff owes the Defendant Tshs. 8,802,800/= being revenues collected from taxi parking fees for the year 2009/2010 and 2010/2011. To what relief the parties entitled to. The above framed issues in terms of Order XIV Rule 5 of the Civil Procedure Act, Cap. 33 were the basis upon which parties led their evidences and produce documents so that the trial Court could give its decision. The framed issues were not considered and determined by the trial magistrate in her decision. She instead, during the composition of the judgment, framed two different issues, which parties were not given chance to address them. The new farmed issues are whether the Plaintiff is liable for the said theft; and whether the Plaintiff is entitled with any relief. I am aware that amendment of the issues is in the discretion of the trial court (See the case of Tanganyika Cheap Store Limited & 2 Others Vs. The National 4 Bureau be Change Ltd, Civil Appeal No. 93 of 2003 (Unreported Court of Appeal). However, parties have to be given right to be heard by bringing evidence and produce documents for the issues added. The right to be heard, that is, the audi alteram partem rule, has been emphasized by the Court of Appeal of Tanzanici in a number of cases, among them, Ndesamburo versus Attorney General [1997] T.L.R 137 and the National HoUsing Corporation versus Tanzania Shoes and Others [1995] T.L.R 251. Where there is breach or violation, of the right to be heard then the whole proceedings and decisions and/or orders become nullity even if the same decision would have been reached had the parties been heard (See the case of l.P.T.L. Vs. Standard Chartered Bank (Hongkong) Ltd. Civil Revision No.] of 2009 (unreported)). In the matter at hand, parties were not given a chance to be heard on the two framed issues. Since they were not given a chance of being heard then the proceedings, judgment and decree issued are a nullity. I proceed to quash and set them aside. As this ground suffices to dispose the whole appeal proceeding to determine other ground will be for academic purpose. The appellant is to'have its costs. it is so ordered. DATED this 14th day of February, 2017. I - - RNI JUDGE -I - // - -7 14/02/2017 11