20010711 TZHC Dar es Salaam

I 4 IN THE - HIGh COURT OF TANZANIA AT DARES SALAAM CIVIL CASE NO.289 OF 1998 JOSEPH NTOGWISANGU ) FIDELIS M. MASEKE AND OTHERS ).........PLAINTIFFS (SUING IN REPRESENTATIVE CAPACITY) VERSUS THE PRINCIPAL SECRETARY MINISTRY OF FINANCE........................................1ST RESPONDENT THE ATTORNEY GENERAL.................................2ND RESPONDENT JUDGMENT MSUMLJK: With the leave of the Court, the two plaintiffs are suing in the representative capacity for and on behalf of their colleagues and themselves. Prior to the filing of this suit plaintiffs and their colleagues were employed by the Ministry of Finance holding different positions. By copies of the letter dated 30/14/96 plaintiffs and their colleagues were notified that their services had been terminated on public interest. Because they are of the opinion that the said act of tennination is unlawful, plaintiffs have filed this suit against the defendants. The substantive reliefs sought in this suit are: 1.. Declaration that the purported retirement of their service is unlawful. 2. Declaration that throughout the material time the plaintiffs .7 2 were and continued to be employees and are still serving their services to the first defendant without loss of their entitlements. The defendants are against the grant of these reliefs. In their joint Written Statement of Defence defendants are contending that the services of the plaintiffs were properly terminated. Consequent to the conflicting stands of the parties the following issues were agreed upon: Whether the decision to retire the plaintiffs on public interest was done by the President. Whether it was necessary that plaintiffs should have been given reasons for the retirement on public interest and if so whethet the same were given to the plaintiffs. Whether. the notice of retirement given to the plaintiffs was legally compefent. To what reliefs are the parties entitled. The following is the case for the plaintiffs as testified by both of them. At the material time both plaintiffs were employed by the first defendant Ministry of Finance. Each of them on 30/4/96 received the letter written by the first defendant notifying them that their service had been terminated on public interest. The termination was effective from 3 0/6/96. According to the letter the said retirement 3 - had been effected under Article 36(2) of the Constitution of the United Republic of Tanzania read together with section 19(3) of Civil Service Act No.16 of 1989 and Government Standing Orders No.41 and F.31. Despite the wording of the letter, plaintiffs are contending that the alleged retirement did not originate from the decision of the President hence it is unlawful. In response, defendant called one witness one Frank Mganga who is the Director of Administration and Personnel in the Ministry of Finance. Basically this is what the witness told the court. In 1996 the Government issued a Circular on the retrenchment of 20,000 public servants. A copy of the said circular was produced by the plaintiffs as Exh P2: The integrity, experience and honesty of the employees were the factors to be taken into account in their selection for retrenchment. In other words those with doubtthl qualifications on these factors were to be included in the retrenchment list. Based on this guidelines the first defendant compiled of list of such employees who included the plaintiffs and submitted it to the President with a proposal that they be retired on public interest. In total they were 600 employees. A copy of the said proposal with endorsement of the President bearing the word "Nalcubali" was produced as Exh D4. It is consequent to this endorsement that the first defendant issued the retirement letter in question. However, as directed by the retrenchment circular, because of their doubtful conducts, which included dishonesty, plaintiffs were retired on public 7 $ lip 4 interest rather than being retrenchéd. The Government formed a committee which reviewed the retirement. decisions in respect of those who complained against them. Consequent to such review some employees were reinstated. As for the plaintiffs their complaints were considered but the committe dismissed them. What the plaintiffs are basically contending is that the decision to retire them on public interest was unlawful because it was not done by the President. Alternatively they are contending that even if the decision was made by the President still it is unlawful because the President gave no reasons for his decision. Starting with the first limb of the argument that the decision was not made by the President. In response to the proposal submitted to him by the first defendant; the President. endorsed it by the word "Nakubali" and his signature. This is a legally recognised format by which the decision of the President is communicated. The effect of this format is to constitute the proposal made to him to be his decision. This view is in harmony with the decision of the Court of Appeal in Agro Industries Ltd V. Attorney General [1994] TLR 43 in which the Court observed: The decision to revoke the right of occupancy was made by the President when he wrote "Nakubali" that is "I agree" to the minute sent to him recommending revocation, and that what the Minister subsequently did was not to revoke himself but merely to signify the revocation made by the President. - 7 4- C 5 Similarly when he issued the letters of tetmination to the plaintiffs the first defendant, was executing the decision of the President and not conveying his own decision. Accordingly the answer to the first question is that the decision to retire the plaintiffs on. public interest was done by the President. - It is true that the statutory provisions under which the decision of the President was made do not require him to give reasons for the said decision. However, there are a number of judicial pronouncements to the effect that whoever is empowered to make a decision which adyersely affect the rights of other persons, it is consonant to the principles of natural justice that such decisions are supported by reasons. In other words it is mandatory that the affected persons should be told' the reasons on which the decisions against their right have been made. This requirement also covers the decisions made by the President - James E, Gwagilov. Attorney General Civil Case No.23 of 1993 Dodoma Registry (unreported) and Misc. Case No.3 of 1996 D'Salaam Registry (unreported) Saidi Juma v. Attorney General. It is evident that in the present case the decision is based on the reasons contained in the proposal submitted to him by the first defendant. However, these reasons were never communicated to the plaintiffs. This omission deprived the plaintiffs of the right to be informed of the reasons why they were retired on public interest. Hence the answer to the second issue is that it was necessary that plaintiffs should have been informed of the reasons for I 141 their retirement in public interest butthis was not done. With this finding it is necessarily follows that the notice of retirement given to the plaintiffs was i1awfl. Like. reliefs of prero.gative orders, courts have discretion, in certain circumstances, to decline issuing declaratory order even if the cause of the application for such relief has been proved. The categories of circumstances which may justify the exercise of this discretion is unexhaustive. In the book titled de Smith's Judicial Review of Administrative Action, Fourth Edition, the learned author, at page 512, says: "apart from those classes of cases in which the courts have jurisdiction to grant a declaration, the broad judicial discretion may be exercised in determining whether a case is one in which declaratory relief ought to be awarded. The reported cases contain no exhaustive catalogue of the factors to which the courts should have regard in exercising their discretion, but broad principles have merged. Thus a declaration will be reftised if the proceedings are an abuse of the process of the court, and is likely to be reftised if the award of declaration would be inequitable, or would lead to serious public inconvenience, or would in any other respect be contrary to public policy, or if compliance with its terms would be 7 impracticable". In deciding whether or not declaratory reliefs should be granted in this case the court has been influenced by the following factors. The decision to retire the plaintiffs is the implementation of broad Government policy of reducing government budget on wage bill. In the execution of this policy a total of 20,000 public servants were retrenched during the first phase. This number has increased to over 50,000 employees to date. The retirement of the plaintiffs is part of the said exercise. Relevant to the consideration of propriety of granting declaratory relief in this case is the fact that it is now almost five years since the retrenchment exercise has been effected. As a result of this decision, Government budget on wage bill has been proportionately reduced. Another relevant factor is the . fact that apparently the number of employees irregularly retired on public interest is quite sizeable; about 500 or more. It is thus highly probable that a grant of declaratory reliefs in this case may open a flood gate for numerous cases of similar nature. Hence taking into account all these factors cumulatively, I think the interest of justice restrains the court in this case from awarding the sought declaratory reliefs. Such award would be inequitable, against public policy and practically impossible 'Ic F C i• . e 8 to' implement. Accordingly the prayers for declaratory reliefs are refused with no' order as to costs. •. sumi JAJIE KIONGOZI 11/7/2001 For the Applicants: Mkali. For the Respondents: Ntimbwa.