ms managing director crdb bank ltd dsm another vs nurdin k pessa 2007 tzhc 412 6 november 2007

IN THE HIGH COURT OF TANZANIA x/? AT MOSHI (DC) CIVIL APPEAL NO. 16 OF 2005 [C/F DC MOSHI CIVIL CASE NO. 1/2004] M/S MANAGING DIRECTOR} CRDB BANK LTD DSM } M/S BRANCH MANAGER }----- APPELLANTS CRDB BANK LTD MOSHI }

VERSUS NURDIN K. PESSA---------------------RESPONDENT

JUDGMENT HON. JUNDU, J. The Respondent was an employee of the 1st Appellant stationed at Hai in Kilimanjaro Region. There arose allegations that he had fraudulently enhanced his personal account balance and withdrew funds from the fictitious credit balance. His immediate superior reported the matter to the 2nd Appellant. The latter in consultation with her superiors sent an internal auditor to investigate the allegations and the same were confirmed to be true. It would appear that the 1st Appellant, thereafter, preferred a displinary action against the Respondent but when the matter was sent to the Conciliation Board, the latter resolved that the Respondent’s services be terminated and he be paid his terminal benefits. Following the said termination of service, the 1st Appellant issued a Certificate of Service to the Respondent. In the said Certificate of Service, there were endorsed the following words - “General Conduct: Good except for incident of enhancing his personal account without following laid down procedures which led to his termination” The Respondent had annexed copy of the said Certificate of Service as Annex P3 to his Plaint. The decision of the Conciliation Board was not appealed against. In his Plaint, the Respondent alleged that the said Certificate of Service issued by the 1st Appellant degraded his credibility, “demoralized his humanity of personality” and

“jeopandised his life” as it made it difficulty for him to secure employment elsewhere on the basis of the said certificate. Therefore, in his Plaint, the Respondent claimed compensation amounting to Tshs.80,000,000/= against the Appellants for the said alleged “demoralization of his humanity of personality”. He also prayed for an order to direct the 1st Appellant to amend the aforesaid Certificate of Service to delete the aforesaid words inserted in the said Certificate of Service by the 1st Defendant. Annexed to the said Plaint by the Respondent is copy of the letter dated 8/10/2002 (Annex “P I”) from the 1st Appellant to the Respondent expressing intention to impose summary dismissal on the Respondent; copy of the decision of the Conciliation Board (Annex “P2”) for termination of services; copy of the certificate of service (Annex “P3”) issued to the Respondent by, the 1st Appellant, copy of the Respondent’s letter dated 15/10/2002 (Annex “P4”) to the 1st Appellant disputing the allegations raised against him; copy of the letter (Annex “P5”; and copy of the letter dated 16/12/2003 (Annex “P6”) from the 1st Appellant to the Respondent rejecting the latter’s demand for compensation of Tshs.80,000,000/=. In their Joint Written Statement of Defence filed in the trial court, the Appellants denied and disputed all the Respondent’s claims and allegations. They stated that the mentioned Certificate of Service is a rejection of the Respondent’s actions during his term of employment and that they had a duty to prepare a Certificate of Service reflecting the Respondent’s real conduct. They prayed for the claims to be dismissed with costs. The Respondent, in the lower court had testified as PW.

1. He adduced evidence in respect of his alleged claims. He had no other witness apart from himself. On the other hand, the Appellants called two witnesses. These included DW. 1 Nicholas Kingazi, the Human Resources Manager of the Appellants. The said two witnesses adduced evidence opposing and refuting the claims of the Respondent in the said court. Now, having heard the evidence of the Respondent side and the Appellants’ side, the trial magistrate state held as follows in his Judgment delivered on 28/6/2005 “ The last issue to be dealt with is that of compensation to the Plaintiff at the tune of 80,000,000/= shs I hasten to say here that, Plaintiff who is a layman misdirected himself by pleading for compensation. In circumstances compensation order cannot be made, it can be made where it is proved that employee has been unfairly dismissed to represent the loss that employee suffered because of the dismissal. The facts of this case and its background depicts that Plaintiff did not challenge the decision of the Board which ordered his termination. Therefore that termination in the eyes of the law is regarded as a fair dismissal. Plaintiff failed to prove to this court on how he arrived on such figure of 80,000,000/= shs. However, because I found the certificate to be offensive and a foul one, it is now my unfortunate duty, to estimate and assess in monetary terms what Plaintiff

deserves as general damages resulted from such certificate of service. The end result of my estimation and assessment I think plaintiff deserve general damages to the tune of 15,000,000/= shs. (fifteen millions) to put him as close as possible to the position he would have been in, if that certificate had not been prepared as it is now. Defendants are further ordered to pay the costs of this suit.” In short, the trial court had entered its Judgment in favour of the Respondent. The Appellants having been aggrieved by the Judgment and Decree of the said court, have appealed to this court listing five (5) grounds of appeal in their Memorandum of Appeal filed in this court namely - (1)That the trial court erred in law and fact in allowing the Respondent to amend the name of the 1st Appellant but would not direct the Respondent to file amended plaint that would reflect the amendments accordingly. (2) That the trial court erred in law in drawing irrelevant issues which eventually led the court to arrive at erroneous decision. (3) That the judgment of the court is not supported by the evidence on record. (4) That the trial court erred in law and fact in not finding the suit was not in law maintainable against the appellants as no cause of action has bee disclosed against the appellants. (5) That the trial court having found that the respondent misdirected himself in pleading for

compensation that is not sustainable in law erred in awarding the Respondent unsubstantiated self - solicited general damages not even pertaining to the pleadings. The Appellants, in their Memorandum of Appeal have prayed to this court to allow the appeal, quash and set aside the Judgment, decree and orders of the trial court. On 19/6/2007, this court, by consent ordered the parties to argue the appeal by way of written submissions. The parties have so complied. Mr. Sandi, learned counsel, is advocating for the Appellants while the Respondent responded the submission of the Appellants on his own. I will first consider and determine the third ground of appeal in the Memorandum of Appeal as above shown. In the said ground of appeal, the Appellants contend that the Judgment of the trial court is not supported by the evidence on record. In his submission, Mr. Sandi, learned counsel for the Appellants, contends that the Judgment of the trial court is not supported by any documentary exhibit as none was tendered and admitted by the trail court during trial. He contends that the said Judgment is based on presumptions and trial court’s self - solicited evidence as the bare brief statement of the Respondent is not reflected in the said Judgment. He further contends that a judgment in a case is supposed to be supported by the evidence on record and exhibits tendered and admitted by the

court during trial and not assumptions of the trial court or anything else. He argues that pleadings are not evidence, for which the trial court ought not to have adopted the Plaintiffs plaint inclusive annextures as a substitute to valid evidence. He further argues that the Respondent in the trial court ought to have led the necessary evidence under oath and tender the relevant documents to support his claims during trial where he would have been cross —examined before the same could be admitted by the said court. He contends that it was wrong on the part of the trial court to even award the general damages of Tshs. 15,000,000/= to the Respondent without the same being pleaded or even prayed for during trial. He further contends that the whole trial in the trial court depicts the trial court as acting for the Respondent in that the entire Judgment is embodied with court’s own arguments in favoring the Respondent. On the other hand, the Respondent, in his Reply to the Memorandum of Appeal, contends that the trial court had reached its decision after considering and taking into account the evidence he had adduced in the said court. He contends that in order to reach its decision, the trial court had cross - examined both the Respondent and the Appellants. He further contends that the Certificate of Service prepared by the 1st Appellant and the decision of the Conciliation Board

were also tendered in the trial court as evidence. He purported to attach the said two documents to his reply to the Memorandum of Appeal as Annex NK “P I” and NK “P2”. Therefore, in his submission, he contends that the trial court did not favour him but reached its decision in his favour based on the said evidence he had adduced in the said court. He prayed to this court to dismiss the Appellants’ appeal with costs. I have carefully considered the third ground of appeal as well as the submissions of the parties on the said ground of appeal. I have carefully read the Judgment and proceedings of the trial court. The Appellants were the Defendants in the said court. In his Plaint in the said court, the Respondent had claimed compensation of Tshs.80,000,000/= against the Appellants allegedly for “demoralizing his humanity of personality” after the 1st Appellant had issued him with a Certificate of Service (Annexture “P3” to the Plaint) which contained words that were allegedly degrading and discrediting him, jeopardizing his life and making it difficult to secure employment elsewhere. In the said Plaint, the Respondent had also prayed for an order to direct the 1st Appellant to delete the alleged offensive words in the said Certificate. The said Certificate of Service had been issued by the 1st Appellant to the Respondent after the decision of the Conciliation Board (Annexture

“P2” to the Plaint”) that the services of the Respondent be terminated. The Respondent was facing a disciplinary action (Annexture “P I” to the Plaint) from the 1st Appellant who was his employer. In his Judgment, the trial magistrate found that the Respondent had misdirected himself to claim for compensation of Tshs.80,000,000/= against the Appellants as the Respondent could only claim such compensation if he had suffered loss as a result of unfair dismissal. He also held that the Respondent in his evidence before the trial court had failed to prove how he had arrived at such a figure ofTshs.80,000,000/=. However, he awarded the Respondent Tshs. 15,000,000/= allegedly as general damages as he had found the wording in the said Certificate of Service “offensive”. In my considered view, the case of the Respondent, in the trial court, to a greater extent depended on documentary evidence which the Respondent had indicated in his Plaint and just mentioned in his oral evidence before the said court. Unfortunately, the proceedings of the trial court shows that the Respondent did not tender in the trial court, during adduction of his evidence, the various documents he had annexed to his Plaint or that he mentioned during the adduction of his oral evidence. The documents that were annexed to the Plaint but not tendered by the Respondent during his adduction of evidence includes:

Annexture “P I”, the letter from the 1st Appellant dated 8th October, 2002 expressing intention to impose disciplinary action on the Respondent for allegedly enhancement of his personal account fraudulently; Annexture “P2”, that is the decision o f the Conciliation Board which resolved that the services of the Respondent be terminated; Annexture “P3”, the Certificate of Service issued by the 1st Appellant to the Respondent, which the latter alleged that it had caused demoralization of his humanity of personality; Annexture “P4” and “P5”, the letter of the Respondent to the 1st Appellant refuting the allegations made by the said Appellant in Annexture “P I”. And Annexture “P6”, the letter of the 1st Appellant to the Respondent resisting the Respondent’s claim of shs.80,000,000/=. Likewise, the record of the lower court shows that the Respondent when adducing his evidence in the trial court he mentioned some documents mainly letters dated 8/10/2002, 15/10/2002, 25/9/2002 and 16/12/2003 but did not tender the same in the said court so as to form part of his evidence. That the Respondent did not tender the documents that he had annexed in his Plaint or that he had mentioned in his oral evidence is vividly clear in his evidence on record of the trial court as I shall shortly demonstrate. The Respondent had testified in the trial court as PW.

1. He testified as follows - “I have presented my allegation to this court by being dehumanized by my employer CRDB Bank by writing to me a letter dated 8/10/2002 alleging that I have committed theft. I refused the allegations in my letter dated 15/10/2002. After that I went to the labour Conciliatory Board this was on 25/9/2003, it was the decision of this Board which found me not guilty of the offence that it was alleged to have been committed by me. The Defendants failed to prove their case before this Board. Due to that decision of the Board I wrote a letter to the defendant to pay me compensation for damages that was caused on my part. That letter dated 16/12/2003. It was replied on 16/12/2003 and they refused to pay me any compensation. On seeing that, I decided to prefer my case to this count of law. In their written statement of defence under para 12 they stated that the decision of the Board was not appealed for. On my part I did not see any reason to appeal because the same decision was in my favour. CROSS - EXAMINATION There was no reasons for my termination it was out of grudge. After the decision of the Conciliation Board my employer terminated my services. There was no enhancement of my account. The damage that I claim is for degrading my human personality. I had good character and therefore there was no need of writing that kind of Certificate of Service” It is

very clear from the above quoted evidence of the Respondent in the trial court that he mentioned various letters in his evidence but he did not tender the same in his evidence so as to form part of his evidence in the said court. Nor did he tender in his evidence above quoted the various documents he had annexed to his Plaint. Therefore, I am in full agreement with the submission of Mr. Sandi, learned counsel for the Appellants that the Respondent’s evidence in the trial court was not supported by the necessary documentary exhibits annexed to the Plaint as none was tendered and admitted during trial. Those documents annexed to the Plaint formed part of the Respondents pleadings but in law unless the same were tendered and admitted during trial they did not form part of the evidence in support of the Respondent’s case or claims in the trial court. Indeed, the aforesaid shortfall on the part of the evidence of the Respondent meant that he had failed to marshal the necessary documentary evidence in support of his case. Indeed, he trial magistrate in his judgment had held that the Respondent had failed to prove how he had arrived at the sum of shs.80,000,000/= as compensation for demoralizing his humanity of personality. However, the trial magistrate in his decision proceeded to award the Respondent Tshs. 15,000,000/= as general damages as in his view the certificate of service

issued by the 1st Appellant to the Respondent was offensive. In my considered view, I quite agree with the submission of Mr. Sandi, learned counsel for the Appellants that the said decision of the trial magistrate was completely wrong. First, there is no where in the Plaint, where the Respondent had pleaded or prayed for the said relief. Secondly, the alleged offensive Certificate of Service was not tendered by the Respondent during his evidence and admitted by the trial magistrate so as to form part of the evidence on which the trial magistrate would have acted upon to grant the Respondent the said general damages. In other words, there was no proof from the Respondent for such general damages. Thirdly, in my considered view, in granting the said general damages of Tshs. 15,000,000/= to the Respondent, for the alleged offensive Certificate of Service, the trial magistrate was infact amending the nature of the Respondent’s case in the trial court without first being called upon to do so by the Respondent himself. In the upshot, I hold that the 3rd ground of appeal is meritous and that it is sufficient to dispose this appeal filed by the Appellants in this court. I need not labour on the 1st, 2nd, 4th and 5th grounds of appeal. I hereby allow the appeal with costs. The Judgment, Decree and orders of the trial magistrate are hereby quashed and set aside. It is so ordered. F.A.R. JUNDU

JUDGE 6/11/2007 Right of Appeal Explained. F.A.R. JUNDU

JUDGE 6/11/2007 6.11.2007 Coram: F.A.R. Jundu, J. For the 1st Appellant }- Mr. Sandi, Advocate For the 2nd Appellant }- Mr. Sandi, Advocate For the Respondent: present C/C: Muyungi Court: Judgment delivered in the presence of Mr. Sandi, learned counsel for the Appellants and in the presence of the Respondent. F.A.R. JUNDU

JUDGE 6/11/2007

AT MOSHI