20150615 TZHC Dar es Salaam

1 . ·( ~N THE HIGH COURT OF TANZANIA . AT DAR ES SALAAM MISC. CIVIL APPEAL NO. 4 OF 2009 Coram. A.Shangwa, I.D. Aboud, B. Mutungi, JJJ M. R. BARAK.A .........-................................... APPELLANT v. MUHIMBILI NATIONAL HOSPITAL ............ RESPONDENT Mutungi, J. JUDGMENT The parties herein M.R. Baraka Appellant represented by Mr. Mhina and Muhimbili National Hospital Respondent dully represented by Mr. Mwalongo having filed their pleadings were ordered by this court to submit their written submissions for ..... ,, f, .,., _;, ,, \ 2 · and against the appeal filed. The appeal itself had the following grounds raised by the Appellant:- 1. That, the honourable Industrial Court of Tanzania erred in law in holding that the withdrawal of the first letter of termination of his employment by mere note, of dispatch had operated to effectively vacate the first invalid decision of the Board of Trustees of the Respondent to terminate his employment. 2. That, the Honourable Industrial Court of Tanzania erred in law in that in its appraisal of the evidence I 3 \_ it failed to appreciate undisputed facts showing that prior to the second decision to terminate his employment, the Board of Trustees of the Respondent had twice usurped the disciplinary powers of the Executive Director of the Respondent by ordering termination of his employment and the said Executive Director was acting under dictation of the Board of Trustees. 3. That, the . Honourable Industrial Court of Tanzania erred in fact in finding that the said Executive Director orally heard him in his f, ' 4 defence before termination of his employment in the absence of any evidence. 4. That, the Honourable Industrial Court of Tanzania erred infact and I in law in holding that the said Board of Trustees properly exercised its appellate powers over . him in the face of evidence demonstrating that the said Executive Director had earlier charged him and participated in both two Board of trustees meetings that terminated his employment. 5 5. That, the Honourable Industrial Court of Tanzania misdirected itself in fact in finding that the KPMG Investigations that covered the period 2000-2002 incriminated him with loss of Tshs. 55,677,450/= and that, during the said period, he was performing supervisory duties over the finance and accounting section of the R~spondent. I ' j 6. That, in the exercise of its discretion to deny him the remedy of reinstatement, the Honourable Industrial Court of Tanzania acted injudiciously in that it took into 6 account legally irrelevant criteria and speculative considerations not based on any evidence. In view of the above forgoing grounds of appeal, the Appellant prayed that the appeal be allowed, the Award of the Industrial Court of Tanzania in the revision be set aside and the· original Award of the Industrial Court of Tanzania be restored and the Appellant be reinstated in his employment. To underscore the gist of the appeal before us, the following is the brief history of the dispute. The Appellant's main grievance is the decision of having been unlawfully terminated from employment on 13/10/2003 by the Respondent and the same having been confirmed by the Muhimbili Board of Trustees. 7 He claims to have been terminated solely on allegations of failure to have supervised his subordinates having been in the acting capacity as the chief auditor and acting financial manager which were not proved. During the dispute period July, 2000 up to March, 2003 he was not carrying out supervisory duties ip the Respondent's financial departments to have caused the deemed financial loss. On the othei: side, the Respondent defends its l ' decision over the Appellant since the financial misconduct against him was proved. The trial court in coming to its decision went through the evidence of the Appellant and that of D.W.1 Dr. Swai on behalf of the Respondent. Upon deliberation the trial court 8 found that the Board of trustees of the Respondent which terminated the Appellant's employment was not vested with such powers. The same notwithstanding, during the disputed period the Appellant did not have supervisory powers in the said departments as he was at the time assigned special assignment in the Audit department. In view of its findings, the court reversed the Respondent's order of termination of the Appellant's employment. As there was already a lapse of time he was considered as being in employment till the date of his termination. It was ordered that he should be paid all his salary arrears and twelve months salary for loss of employment together with the PPF contributions. 9 The Respondent having been aggrieved by the above · decision preferred a revision before a revision panel in the same court which having gone through the trial · court's decision found that as the allegations against the Appellant had been proved and that the authority that terminated his employment was well vested with such powers. The revision panel further found that the Appellant was not entitled to any benefits but only those payable on termination (statutory terminal benefits) . ..... ..,. Aggrieved by the revision decision delivered by the revision panel the Appellant has now appealed to this court on six grounds already mentioned. In respect of the first ground of appeal, it is submitted that, the basis of this ground is the 10 revisional court's finding that the Board of Trustees of the Respondent had effectively withdrawn the first termination of the Appellant's employment. It is submitted that the revisional court relied on the evidence of DW 1 Swai hence did not consider the legality and validity of the purported withdrawal. It is further contended that for the withdrawal to be legally effective, the same Board which took the invalid decision to terminate the Appellant's employment should have taken the decision to· reverse that decision on realizing that it was erroneous. Moreover, it is contended that D.Wl did not produce documentary evidence by way of official minutes or circulated papers, followed by a formal letter of vacation of the invalid decision to terminate 11 . the Appellant's employment. Therefore, it IS submitted the procedure was not in conformity with paragraph 5 or 7 of the Schedule to the Muhimbili National Hospital Act, 2000. Hence, endorsement in the dispatch book (EXHR 10) cannot be taken as evidence of the meeting or minutes of such meeting of the purported withdrawal. It is submitted further that there was no evidence that the Board formally and effectively vacated the first termination. DWl had failed to prove the allegation that the first termination had been formally withdrawn. Coming to ground number, 2, it is averred that the revisional panel found as a fact that the decision to terminate the Appellant's employment for the second 12 time was taken. by the Executive Director of the Respondent. However, this finding ignores the evidence of DWl who indicated that it is not the Executive Director of the Respondent but the executive committee of the Board of Trustees which dismissed the Appellant. It is further submitted that "Kielelezo R-11 authored by the Executive Director of the Respondent reflect the decision of the Board of trustees to terminate the Appellant's employment the first time, which had not been effectively vacated by the Respondent. The Appellant submitted that it remained active and was implemented under the second termination which gave rise to this dispute. 13 The Appellant further argues that the Executive Director considered himself bound by the decision of the Executive Committee of the Board hence the termination of the Appellant's employment was attributed and linked to an order of the Executive Committee of the Board of trustees. It is submitted further that through "Kielelezo R-11 it is clear evidence that the decision to terminate his employment was not taken by the Executive Director but by the Executive Committee of the Board of ..... 111•,f Trustees which had no mandate to do so. On the third ground, the Appellant invited the court to go through page 10 of the revisional panel award and page 12 which the court concluded wrongly. It is submitted that there is nothing on the record to 14 support the finding that the Executive Director heard the Appellant in his defence. It was further contended that even DWl himself did not testify to have heard the Appellant in his defence orally. DWl did not produce any minutes of the organ or institution which heard the Appellant. It is submitted that, the finding of the revisional panel on this point is. inconsistent with the evidence of DWl to the effect that the Appellant explanation and defence of 16/9/2003 on apparent loss of Tshs. 55.6 million was followed by a meeting of the Executive Committee of the Board of Trustees that was held on 9 / 10 / 2003, which convicted the Appellant and decided to dismiss him. The Appellant finds that the revisional court ignored his evidence which revealed that he was never 15 heard orally. The Appellant submitted that, he came to learn of the exparte meeting of the Executive Committee of the Board of Trustees on 9/10/2003 and that is when he protested vide a letter to the chairman of the said committee. It is the Appellant's submission that the termination of his employment was done by an exparte decision . Therefore, it follows that there was no material evidence before the revisional panel to warrant the finding that the Executive Director did hear the Appellant and ultimately decide to terminate his employment. In respect of ground No. 4, it is submitted that the ground is based on the findings of the revisional panel in it award. It is submitted that the Board of Trustees 16 being the proper appellate authority, then the issue that follows is whether the participation of the Executive Director was proper. It is contended that the participation of the Executive Director is questionable as he charged the Appellant as a disciplinary authority and secondly, the Executive· Director participated in the Board meeting which terminated the Appellant's employment for the first and second time. Furthermore, the involvement of the Board of Trustees in the dismissal of the Appellant raises serious questions about the integrity of the appeal process and the ability of the Board to act in an impartial and dispassionate manner towards the Appellant. It is averred that the body which earlier 17 dismissed the Appellant subsequently became the same body which purported to hear the Appellant's appeal hence justice cannot be seen to be done under these circumstances. It is contended that the said conduct violated the I scheme of the Muhimbili National Hospital Act 2000, which envisages the Executive Director as the disciplinary authority and the Board of Trustees as the appellate authority. In deliberating upon ground No. 5, the Appellant submitted that the basis of the ground is depicted from the award of the revisional panel which found that KPMG implicated the Appellant in the loss of Tshs. 55 million. It is averred that there is no evidence on record to this effect. There is also no mention of 18 the sum of Tshs. 55 million in the reports of NMB or NBC and the KPMG investigation. The report which covered the period 2000-2002 did not detect a loss of this sum as the revisional panel appears to have found. It 1s submitted that the KPMG did not investigate the Appellant. Needless to say DWl 's testimony highlighted that the Appellant was left untouched in the KPMG investigation. It is Appellant's submission that there is no factual basis suggesting that the Appellant had any supervisory role and that in that capacity he failed to detect the financial loss. There is evidence on record that the Appellant was on special assignment at the material time and DWl admits so in his written testimony. It is Appellant's submission that he had no 19 supervisory powers at the material time so as to be blamed for the delay in detecting the alleged loss. In ground number 6, it is submitted that the issue is whether the revisional panel was right in upholding the decision of the industrial court in original jurisdiction to deny the Appellant a reinstatement. It is submitted that the refusal of reinstatement is based on speculative consideration as well as from personal prejudices of the panelists of the revisional court. It is further submitted that the confusion is on the concept of financial reinstatement and this is probably a serious objection by Respondent to reinstate the Appellant. The case of EJEGI VRS. AGIP (NIGERIA) LTD 1966 ALR COMM was cited to bring the point home. This court is called upon to make 20 sure that inferior tribunals do not do violence to the law. By relying on a remedy specifically a "financial reinstatement" which is not supported by any law. From the above foregoing reasons, the Appellant prays the award of the revisional court to be quashed and set aside, the award of the Industrial court sitting in its original jurisdiction be restored in toto except that the Respondent be ordered to reinstate the Appellant in the same position which he occupied when his termination took effect. In reply, the Respondent drew the attention of the court that the appeal brought before the court has been centered on issues of facts, which cannot be entertained at this level. It is submitted that the trial panel that adjudicated the matter, had the 21 opportunity to evaluate the evidence in the first instance. The revision court re-evaluate the evidence and finally come to its holding. It is on this basis that this court cannot be called to re-evaluate evidence at a third level. The noble duty of this court is to go I I through the record and evaluate as to what transpired at the industrial court in the revision. In respect of the first ground, the Respondent argued that, the matter raised in the first ground was not raised during the revision stage before the same - ~ Industrial Court of Tanzania. It is averred that there is nowhere in the impugned decision where there is a holding that the withdrawal of the first letter of termination of the Appellant's employment by mere note in the dispatch had operated to effectively vacate 22 the first invalid decision of the Board of Trustees to terminate the Appellant's employment. It is further replied that the issue of withdrawing the letter by dispatch ended during trial and the revision court had no opportunity to determine this issue. The decision of the Court of Appeal in MELITA NAIKIMINJAL & ANOTHER V. ·SAILEVO (1998) TLR 124 was cited to hammer the point home that the issue which was not raised by the Appellant in the first appeal can't be raised in the second appeal. It was further contended that the appeal before this court sitting as a full bench is the second appeal hence the ground which was not raised at the revision level cannot emerge at this second stage. It is 23 the Respondent's submission that the first ground cannot be entertained at this level. Skipping on the second ground, the Respondent replied that the Appellant is seeking reappraisal of the evidence. At this level issues of facts cannot be determined any further as were determined by the Industrial Court in the first instance. In respect of the submission that the Executive Committee of the Board was operating behind the scene, the Respondent replied that the same are speculative opinions coming from the Appellant's advocate which cannot be entertained. Further to that, it was submitted that the decision of the revision panel subject of this appeal, was the correct position supported by the evidence on record 24 and what was before the trial court. This is why it eventually overturned the decision of the trial court. With regards to Exhibits, the respondent contended that it is not the function of this honourable court to weigh the exhibits and demeanour of witnesses because it is not the trial court. To elaborate on this point, the case of MATERO LEISON & J FOYA Versus R. SOSPETER 1988 TLR 102 (ITC) PO 105 was cited. Replying to the third ground, the Respondent quoted the findings indicated at page 11 of decision of panel subject of this appeal, that there was evidence appraised before arriving at that decision which is correct and there was nothing to the contrary to faulter the revision panel's findings. 25 In respect of ground No. 4, the Respondent contended that this ground is a new issue which cannot be raised at this stage as it did not come as an issue during revision. The case of MELITA (supra) was cited to support the point at hand. Responding to ground No. 5 the Respondent submitte,d that the said ground was not a ground during the revision but the court raised it suo motto in arriving at its decision. Now that it has come as a ground of appeal, is a new matter and the decision in Melita applies. In alternative, it is submitted that the Appellant's submissions are not based on what transpired during revision but what transpired during I the trial court which is not at issue now before this court. 26 In furtherance to that, the Respondent submitted that the revision court considered the confession of the Appellant himself that is not disputed or denied by him. It follows there is no way of avoiding responsibility from the loss he had occasioned to the Respondent in the course of his employment. In the last ground which is ground No. 6 the Respondent replied that, the rev1s1on panel considered the time factor and changes that had taken place and these were the same issues considered by the Court of first instance. It is not practicable to reinstate the Appellant physically to handle the funds of the Respondent in a case like this where there are financial misconducts which have been proved to be true and correct. 27 It is contended that the concept of reinstatement is not knew in Tanzania. Section 42 of the Security of Employment Act R.E. 2002 allows an employer who does not want to reinstate an employee by the order of the Conciliation Board or the Minister or the Court to pay statutory compensation and 12 months salary to the employee. Commenting on the case of EJEGI VS. AGIP, the Respondent averred that it is of no relevance as the Appellant did not cite the provision of the law in ...... ,...... support of his prayer of reinstatement but only dwelt on its definition at length. The Respondent further submitted that reinstatement was not granted by the court, as such there is no point to dwell much on the same in principle. • 28 In the premises, the Respondent concluded that the appeal be dismissed with costs. In the rejoinder, the Appellant contended that the matter before this court came as a first appeal from an award of the Industrial Court of Tanzania sitting in its revisional jurisdiction. So, the question of a third level hearing does not arise. It is further averred that it is wrong in principle to equate a revision with a first appeal especially in the context of Industrial Court of Tanzania. The Industrial Court of Tanzania ... ..... Act does not provide for an appeal. Awards were final, subject to statutory right of revision. In the same reasoning when an appeal is preferred to the Court of Appeal of Tanzania from a decision of the High Court of Tanzania sitting in its revisional jurisdiction, it 29 would be erroneous in principle to equate the appeal with a second appeal and the revision as first appeal. The former remains a first appeal and the latter a rev1s1on. ( 1 1 Apart from the above, the Appellant drew the attention of the court that all grounds raised in the Memorandum of Appeal were. pleaded and arose as issues at the trial and all relevant facts were investigated by the trial court which found in favour of the Appellant save for the issue of physical reinstatement. The Appellant explained that, the revision court completely substituted its own award for that of the trial court at the instance of the Respondent. It upheld the trial court order of physical reinstatement. Since the Appellant seeks in this '· 30 appeal to have the award of the court of first instance restored this court must decide whether there were sufficient grounds for overturning the award of the trial court and determine which of the two conflicting awards is on facts and in law correct. Responding as to the second ground of appeal, he submitted that there is no principle of law that bars a first appeal court from reappraising evidence. It is a duty of the first appeal court to reappraise the evidence. Secondly, it is perfectly within the powers of this court sitting as a first appellate court to satisfy itself that the revision court was entitled to overturn such award, especially considering the principle that a court of first instance is the best judge of matters of fact. 31 In the argum_ent of speculation raised by Respondent, Appellant maintained that the said ground is based on paragraph 11 of the said award which is in black and white. With regards to the submission that the Executive Director did hear the Appellant in his defence, the Appellant maintained that the Executive Director had abdicated his disciplinary authority over the Appellant to that of the Executive Committee of the Board of Trustees and the latter correspondingly, . arrogated to itself the authority of disciplining the Appellant, which authority the court of first instance rightly held that it did not have and the revision court concedes that the Board did not have such authority 32 The Appellant went further and said that the case of MATERO VS. SOSPETER cited by the Respondent assists him rather than the Respondent in that it lays emphasis to the principle that a first appeal court is vested with powers to reappraise the evidence and ( interfere with the findings of the lower Court. With regards to grqund No. 3 the Appellant maintained that there is nothing on record to support the finding by the revision court that the Executive Director conducted the disciplinary proceedings that resulted 1n termination of the Appellant's employment. DWl the only witness of Respondent did not produce any documentary proof showing that it is the Executive Director who actually disciplined the Appellant, consequently, the Appellant still 33 maintained that he was dismissed upon an order of and by the Executive Committee of the Board of Trustees. In respect of ground No. 4, the Appellant rejoined that it is not a new issue as the revision court had addressed it at page 11 and 12 in its award. The controversial issue in this ground is the role played by the Executive Committee of the Board of Trustees in the dismissal of the Appellant, as it had been subject of legal challenge by the Appellant at the Court of first instance. It is Appellant's argument that had the revisional court addressed its mind to this fact. It would not have found as it did. The Appellant contended that the Board doubled up as a \ \ 34 disciplinary master and appellate authority at the same time. On ground No. 5, the Appellant rejoined that, this is not a new issue as submitted by the Respondent. The said finding is on page 13 and 14 of the trial court's award where the revision court found that the KPMG implicated the Appellant in the loss of Tshs. 55 . million. It is submitted that the revision court's finding to the effect that the Appellant admitted that the financial loss occurred while he was holding a ...... ..... supervisory role is not supported by the record. With regards to the last ground which is ground No. 6, it is submitted that both the court of first instance and revision panel refused physical reinstatement. It is submitted that the Respondent has objected that it 35 is not practicable to reinstate the Appellant physically since there are financial misconducts which are proved to be true and correct. It is averred that this objection is made in ignorance of the fact that the court of first instance found no proof of the alleged misconduct. In respect of the law relied upon by the Respondent, the Security of Employment Act, the Appellant averred that the said law is irrelevant and does not apply to trade disputes. Section 42 (5) has nothing to do with financial reinstatement as it gives the employer an option to pay off the employee and the Industrial Court of Tanzania Act which governed the instant dispute did not have a provision akin to Section 42 (5). The foregoing notwithstanding, i 36 reinstatement is a relief that 1s granted at the discretion of the court. It follows then that there was no evidence material before the revision court to justify the denial of a reinstatement order. It is submitted that the award of the court of first instance refused physical reinstatement but granted the Appellant the legally. controversial order of financial reinstatement. In the up short, the Appellant prayed for restoration of the award of the Court of first instance and for his reinstatement in the same position which he occupied prior to the termination of his employment. Having gone through the record of the trial court as well as that of the revisional panel and upon painstakingly going through the submissions 37 advanced by both parties in respect of this appeal, we have opted to clear the legal battle forming part of the introduction as to whether the appeal before us sitting as a full bench is a second appeal, first appeal or third appeal. In addressing this matter, we believe we will be in a better position to entertain the grounds tabled before us in this appeal. Glancing from the records, one may note that, the matter started before the Industrial Court of Tanzania at Dar es Salaam before Hon. CER William, Deputy Chairperson dated 29/11/2006 in trade inquiry No. 11/2004 between M. R. Baraka herein Appellant and Muhimbili National Hospital the Respondent herein. Then the matter went for revision before the same court before E.L.K. Mwaipopo, J. Hon. E.J. 38 Mkasimongwa (Ag. Deputy Vice Chairman) and Hon. I.A.Mtiginjola, (Ag. Deputy Vice Chairman) in revision No. 31/2006. Eventually on 4 th day of August, 2009 the High Court of Tanzania sitting as a full bench on the appeal from the award of the Industrial Court of Tanzania in revision No. 31/2006. We join hands with the argument advanced by Respondent that upon being aggrieved by the revisional decision one has a constitutional right of appeal before the High Court sitting as a full bench of 3 Judges. We acknowledge in law the phrases "Revision" and "Appeal" that they can't be used interchangeably but however as far as this appeal tabled before us is concerned, it is sitting as third forum to examine 39 whether the decision of the Industrial Court exercising its revisional powers was proper or not. In resolving the first ground, the controversy is whether the said ground was raised before the revisional court. As the ground speaks for itself, it is couched in the following words. "That the Honourable Industrial Court of Tanzania erred in law in holding that the withdrawal of the first letter of termination of the Appellant's employment by mere note on dispatch had operated to effectively vacate the first invalid decision of the Board of Trustees of the Respondent to terminate the Appellant's employment". We find it very hard to subscribe with the views advanced by Appellant in the rejoinder that the said was discussed at page 11 of the revision award. Scrutinizing the said 40 page, we find nothing has been disclosed relating to the said holding purported to be made by the revision panel. Nothing has been concluded on the mere note on dispatch which is a corner stone of this ground. At this juncture, we are of the same line of reasoning advanced by Respondent that the said is a new matter which was not raised before the revision panel. To bolster up our findings, we wish to refer to the decision of the highest court of the land in the case of FARIDA & ANOTHER V. DOMINA KAGARUKI Civil Appeal No. 136/2006 wherein it was held as follows and we quote:- "It is the general principle that the appellate court cannot consider or deal with issues that 41 were not canvassed, pleaded and or raised at the lower court. For that reason they are dismissed." On the strength of the above findings, we are of the settled view that the first ground has no merit. Moving on the second ground, without a flicker of doubt the grounds touches on reappraising of evidence. This also has been conceded by Appellant himself in the rejoinder. The Respondent impressed this court by submitting that this court sitting in its appellate jurisdiction has no powers of reappraising evidence, the said is the task of the trial court. The Appellant resisted the said argument strongly by advancing the argument that there is no principle of ·-,-- l. 42 law that bars a first appeal court from appra1s1ng evidence. · The above notwithstanding, an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand. This jurisdiction is exercised with caution if there is no evidence to support a particular conclusion or if it is shown that the trial judge has failed to appreciate the weight of matters admitted or proved or has plainly gone wrong. The appellate court - will not hesitate so to decide. The holding was celebrated by the COURT OF APPEAL OF EAST AFRICA in the case of PETERS Versus SUNDAYS POST LTD. (1958) EA 424. 43 Conceding to the spirit of the said holding, we have powers to reappraise the evidence to determine whether the conclusion of the revision panel should stand or not, but in exercising the said powers we caution ourselves as to whether before the revision panel there was evidence to support a particular conclusion or whether the revisional panel had failed to appreciate the weight of the evidence. In light of the above, we have gone through the award at pages 10 and 11, the revisional court has demonstrated the evidence to support its particular conclusion but the evidence was not properly evaluated. For the purpose of reference at page 10 the revision panel came to the finding and we quote: -- .• - 44 "Hoja inayoendana na hiyo ni ile • tsemayo kua mamlaka ya Mkurugenzi Mtendaji aliyemwachisha kazi si mamlaka ya utovu wa nidhamu bali ni Bodi ya Wadhamini. Hoja hii nayo japo zima tunaikataa kwa sababu Mlalamikaji si Mkurugenzi Mkuu wa Muhimbili Hospitali ya Kitaifa bali alishtakiwa kiutovu wa nidhamu na kuhukumiwa akiwa Kaimu Mhasibu Mkuu au Kaimu Meneja wa Fedha na kuwa Mhasibu Mtemi wa Ndani (Chief Internal Auditor) n. k. basi yeye 45 alikuwa ni Mkuu wa Divisheni chini ya kifungu cha 12 (b) ambapo mamlaka yake nt• Mkurugenzi Mtendaji kwa wakati huo Prof. Dr. Ngwale, Kaimu Mkurugenzi Mtemi." As pe.r the quoted paragraph the r~visional court had appreciated the circumstances prevailing but came to a wrong conclusion. For this reason, we fault the revisional court on this point and we find that ground No. 2 has merits. Moving to the third ground, which Appellant contended that he was not heard by the Executive Director, on this ground, it has caught our attention that what the Appellant is trying to establish is that 46 he was not given a fundamental right of being heard by the Executive Director hence the findings depicted at page 10 and 12 of the revisional award were not correct. Natural justice requires that nobody should be condemned unheard. The issue is whether or not the Appellant was given the right to be heard in his case. We have deliberately taken pains to trace whether there was violation of this fundamental principle by the Executive Director. At page 13 of the revision award our eyes came across the said observation which for purpose of clarity we reproduce hereunder as follows: "Sababu ya nne ya Marejeo inaendana na ile ya tatu isemayo 47 • kuwa pamoJa na kuamua kimwanzo kwamba Mjibu marejeo alipewa nafasi tosha ya kujitetea bado iliamua kuwa utaratibu haukufuatwa · kwa kimakosa katika uamuzi wa kimwanzo." The quoted passage demonstrates that the Appellant was given the right to be heard. Even the trial court had observed and was satisfied that the Appellant was given the right to be heard. Further on pages (13-14) the revision court had· the following verdict, we quote:- "Tunakubaliana na hoja hii kwamba utaratibu wa kumwachishakazi 48 Mlalamikaji/Mwomba marejeo ulifuatwa kwa usahihi na hivyo tunatengua sehemu ya uamuzi wa kimwanzo kuhusu na tunaamua jopo zima kwani yeye mwenyewe anakubali alipewa nafasi ya kujitetea ambavyo ni sahihi." As evidenced above, the records of both the trial and revisional court reveal that the Appellant was given the right to be heard. It is important to note that, the Appellant's counsel was not guided by the trite position of law which dictates that a court record is a serious document and there is always a presumption that a court record accurately represents what happened. 49 The said position . was laid down by the Highest Court of this Land in the case of HALFANI SUDI V. ABIEZA CHICHILI Civil Reference No. 11 / 1996 before Ramadhan, Lubuva, and Samatta JA. Having narrated as above, we proceed to find that the Appellant was given the right to be heard as per the records of the two decisions of the court below, therefore the 3 rd ground has no merit. With regard to ground No. 4 we find that the .... ..,. Appellant 1s trying to address yet another fundamental principle of natural justice that is a rule against "BIAS" emanating from the Latin maxim "Memo judex in Causa Sua". The Appellant in his submission before us conceded that the Board of Trustees was the proper body sitting as an appellate .. 50 body. The problem is on the participation of the Executive Director in the appellate decision as he is only a disciplinary authority and not an appellate authority as per the Scheme of Muhimbili National Hospital Act. 2000. The Respondent raised an argument that the complaint being propounded by Appellant was not raised or pleaded in the Revisional court. We had to visit pages 11 and 12 in the revisional award in order to ascertain whether or not the said e ground was pleaded. Our eyes have captured amongst other things found at page 11 - 12 of the revision award that the Executive Director did exercise his disciplinary authority over the Appellant. 51 This is evidenced by the observation at the said pages. "Kamati ya Mkurugenzi Mkuu ndiyo iliyomsikiliza mlalamikaji na kumtia hatiani kwa utovu wa nidhamu na kumpa adhabu ya kuachishwa kazi. Mlalamikaji alikata rufaa kwenda kwenye Board ya wadhamini ambao walitupilia mbali rufaa ......... " At page 12, the revisional court had the following verdict:- ".......... na tunaamua kuwa mamlaka halali ya Mkurugenzi Mtendaji ndiyo iliyoamua f, 52 mashtaka yake ya nidhamu ilikuwa ni mamlaka halali. Pia Board iliyoshughulikia rufaa yake ilikuwa na mamlaka halali." As per the above quotations, we find that the Respondent's argument is not correct. We find that in actual fact, the question as to whether or not it was proper for the Executive Director to participate in the deliberations by the Board of Trustees on appeal was pleaded before the Revisional Court. We now move to the fifth ground of appeal. This ground hangs on the issue as to whether or not the Appellant was responsible for the loss of Tshs. 55 million plus during the period of 2000-2002. The 53 Appellant submitted that he had no supervisory role during the said period and that the revisional court was wrong in its finding that during the said period he had supervisory role. At page 15 in the revisional award, the revisional panel observed inter alia as follows and we quote: "Mkuu wa kitengo husika anawajibika chini ya sheria ya vicarious liability kwa matendo ya uzembe wa watumishi walio chini yake. Maelezo yake ya ushahidi wa maandishi na mahitimisho anakiri kutokea ubadhirifu wa fedha katika kipindi akiwa ndiye Mkuu wa J_ \. 54 Divishen husika na baadhi ya watumishi walio chini yake wanakabiliwa na mashtaka ya wizi husika Mahakamani." In our view, the principle of vicarious liability was wrongly applied by the revisional panel at the detriment of the Appellant. First of all, we agree with the Appellant that the revisional panel was wrong in its finding that during the period 2000-2002 when the loss of Tshs. 55,677,450 Million occurred in his ..... Finance Accounting Department, he had a supervisory role. During the said period, the one who had a supervisory role was Mr. Ndaskoi who was Finance Manager and Mr. Charles Mombeki who was Acting Chief Internal Auditor. In fact, there is 55 evidence_ to show that Mr. Ndaskoi resigned from his ' . position of Finance Manager and handed over the office to the Appellant on 10th January 2003 - exhibit P3. Also, there is evidence to show that Mr. Abisawi was Finance Manager since September, 2002 and that he was suspended from employment on grounds of loss of funds. As the loss of Tshs. 55,677,450/= took place when the Appellant had no supervisory role in the Finance Department of Muhimbili National Hospital, it is obvious that the ones who failed to detect the loss are his predecessors and not himself. One of his predecessor mentioned above resigned, another one got suspended for loss of fund during 2000/2003. ' I, 56 Thus, we agree with the Appellant that he was a mere scapegoat "Kondoo wa Kafara". As already mentioned, the principle of vicarious liability was wrongly applied by the revisional panel at the detriment of the Appellant. We wish to show hereinbelow how wrongly the said principle was applied. The Appellant was an employee of the National Hospital Muhimbili. Those who stole the money from the said Hospital's fund are his fellow .... ...,. employees who were prosecuted in court. As he did not steal any money from the said Hospital's fund such as his fellow employees did, he was not prosecuted in court. In law, an employee cannot be held vicariously liable for the acts of his fellow employees done in the f I ,, ~ 57 course -of their employment. It is only the Master who can be liable for the acts of the Servant done in the course of his employment. In this case, the relationship between the Appellant and his fellow employees who stole the money was not that of Master and Servants so as to hold him vicariously liable. ·Moreover, as already stated, during the period when the money was stolen he had no supervisory role which formed the basis of his termination from employment. We now go to the sixth ground of appeal which is a last one. On this ground the court is asked to determine as to whether or not it was proper for the I ,. { 1., ' l· ' 'f ~ ;,, 58 Industrial court to deny the Appellant the remedy of physical reinstatement. At page 18 paragraph 2 of the revisional court's judgment, it was held on this point as follows and we quote:- "Hivyo basi kwa ujumla wake tunakataa sababu hii ya marejeo kinzani na kufikia uwezo kuwa uamuzi wa kimwanzo ulifikia uamuzi sahihi wa kurejesha • mwomba mareieo kinzani kimaslahi pekee." f ~, 1• 't .. , "\ " 59 In our op1n1on, the Industrial court as a whole acted injudiciously in denying the Appellant the remedy of physical reinstatement to his employment as he was wrongly terminated by the Respondent. As already mentioned, he was made a "Kondoo wa Kafara". Therefore, we quash the decision of the Industrial Court which denied him the said remedy. As a consequence, we order the Respondent to physically reinstate the Appellant to his actual employment and to pay his salaries and the - increments thereon from October, 2003 when he was terminated minus PPF contributions and income tax. In the final analysis, we allow the appeal to the extent mentioned herein. We do so with costs. t. I, 1, . •'t 60 A. Shangwa JUDGE JUDGE 15 th June, 2015 \ B. Mutungil JUDGE 15 thJune, 2015 presence of the Appellant and Miss Veronika Mushi for the - Respondent. A.Shangwa JUDGE 15 th June, 2015 "- ~ C')_--=-"-== I . . A oud JUDGE 15 thJune, 2015