20160422 TZHC Dar es Salaam

-J IN THE HIGH COURT OFTANZANlA · (DAR ES SALAAM DISTRICT REGISTRY) · ••AT.DARES SALAAM . . .CIVIL CASE NO. 111 OF 2014 · NMB BAN'K: PLC\~~ ..'.· .. :............·....•·.~~~ .. P-LAINTIFF VERSUS ZAWADI· MSEMJU<WE'LI .'.... : ..... ~ ... :.~. DEF-ENDANT ... 14/01&22/04/2016 ·· ·JUDGMENT MWANDAMBO, J· · The Plaintiff who is .· represented by ·stanley Mabitf learned Advocate, has instituted the suit against the ·Defenda.ntfor several br~aches of duty under '.-a;· contract C)f employr1·1ent By reason ~f th~ alleged breaches, the Plaintiff claims: . ' ar;• as~ortfrient of reliefs notably; recovery ~fa sum of T~hs ~47,815,000/= plus . damages 'in the sum of Tshs 10,000,0601= ·a~ohgst others. t. The facts material to the suit arise from a contract of employment entered on 3 August 2009 (exhib.it Pl): by· :Which the Plaintiff employed the Defenc;iant as a Bank Teller at one of its branches in Dar es salaam. The contract had appendix 1 containing a code of conduct which the Defendant agreed to be bound by. One. of the key terms under the code of.conduct (exhibit P2) included; performance of the duties contracted for yvith honesty to customers of the Plaintiff (para 3:2),·. loyalty to the Plaintiff and. protection of its image to the customers and general · public (para 3.2 (b)), abstinence from e~gaging in. illegalities such as fraud and· forgery aimed at stealing customers' money. Contrary to the terms of .· 1 employment contract read together with the code of conduct, the Defendant .did : · not live up to the Plaintiff's expectations which- resulted into her exercising its · right$: under clause 13.3 ·of -exh.. PL by terminating the .said contract for· misconduct vide letter dated 22 August 2013 (exhibit P3). It -is note~orthy that •' ,, there has not been any indication that the _Defendant challenged her termination: under the relevant law. Since_ the Defendant's misconduct and/or breach of her:· .... duty to her employer resulted into loss, thePlaintiff has sought to recover t~9t _loss by way of a suit inc:lependent of ·t~e right to terminate. the Defendant from employment. ., ... \_. . . . . . . . . . . Despite the Plaintiff serving sunimohs on the Defendant, the latter defaulted .... : ~: '. . . . ,:, '. filing her written statement of defence· as required which. prompted the Courtto--. . . make an order for ex parte prot1f of the claim pursuant to Order VIII Rule 14(~) . ·:· ·: :_'. .· :_ · (b) of tl1e Civil Procedure Code, .Cap 33 R.E 2002. !think what I said National· · _: .-. :... , . - . \ .· . . Bicycle Company Lhnited· V. Shanghai Phoenix Company Limited_,Civil, :·:·,.. . :,_..-.-:·-:·: Case No. 58 of 2010(unrf~p9rted) is· relevant to_ this case too or ·any other case. where the plaintiff establishes his daim by ex parte proof. In my view; the fact . , , ·.. · .. that· a suit proceeds: for hearing by e~ parte proof does not mean that th.~ Plaintiff's burden· of proof of his daim is thereby diluted. Accordingly, to succeed:._ in this suit, the Plaintiff is bound to prove to the required standard the following facts namely;(i) the· existence of a contra~t with Defendant and the terms and· . conditions governing it, (ii) breach of the- terms and conditions, (iii) damage or loss sustained as a result of the breach ·(if any) and (iv) remedies beyo.nd terrnination of the said contract. I will thus. proceed to determine the in'.stant ·suit on the basis of the matters I. have identified above. At the· end of the trial, th~ learned Advocate for .the Plaintiff urged me to pronounce judgment against the. Defendant because the Plaintiff has proved its case to the required standard in civil cases. 2 ,,As regards the first item,.there is ample.evidence through the testimony of . PWl who· produced the· contra.~ ·of ~mployment (exhibit Pl) and the code· of conduct (exhibit P2). The •,two J~xhjbits· contain :expre_ss. ~erms and conditiq.n.s. governing the contract som,e of W:hic,::h ·material to suit have been. narrated above .. Similarly, there is hardly!any_ qispl:lt~. as to_ item No. 2 _conc~rning the. breach of, · · the terms and conditions-. . Botlc1. . PWl . .. . and. ...PW-2' ,.·.. testified ' . . . . to the . satisfaction of the .. . . " ' . ·~ : ' ' ; . . Court that contrary to _th.e :ter:ms_.of. cqntract bind.i,ng the Defendant1 she breache.d · . . ·: ,· those terms resulting_ in ::her.terrninatiqn of contract:per. exhibit P3. -In particu!c1r, . the evidence of PW1, shows. that the Defendant did not observe the relev~nt procedures in honoring reque?t for. withdrawal . of mon~_y from the Plaintiffs customers' accounts ;s ~xJ~ct~d'•,· cif :·~esulting. into a loss of Tsbs · h~/ 1 147,815,000/==. PW2 forhi~ ~~-~:t~~t-ifi~~ .th~t h·~_co~d~cted an investigation. at • • • • •• • • I • •• • •. ',. : '. ,: :• • • t ,· .: •• ;,,• • • •: ' • Kariakoo Quick Service Brarich . ' . \l\lhere.. ·the· ,, ... · ,· Defendari . . . ·· . . was· working .. and discovered .. , ' ., . a loss of Tshs 147,8!5,000/=/ (say Tanza~,.~ Shillings· ~ne · Hundred Forty seven: . . . -~·_;\·-~-- : ... :_ :•j:•·;. ·, :\_'' --~. • .• ~ .. . . Million· Eight Hundred .Fifye~n _Thousand)as. evidenced by a report which was . -admitted as e~h .. P4 .. ..the.'reb~rt :. . :: . .. '· . . .. ·.indicated various . : vio'lations . ~ of. the Code. of · Conduct (exh. P2) in relation to the procedure for honoring payments from : customers.· Specifically/·P·~j to.i"c1··fhe . . . .. ' ~ ·~b~rt how ·th~: 6ef~ndant defaulted··.in .. ·_ .• . .. . . .•. .. ' .' . - verifying customer's signatures on the withdra~al slips against signatures in the specimen cards, verification of the. persons ·seeking to withdraw money against . ·. ··.: ,:.· '. ·.. ·.-. '. - ~ > .:·· ..·; . ~- .. ·- ·. : . . .. the photos in the specimen card stored in the bank system and honoring ' , • : •. ,• :•, \ I-•,,. .• ',. .,, : ',. ,, 1 , 1 1 payments without sc1tisfying that there were sufficient funds in the customer.s'. •, . . . .· _. . .. ·· . . . respective accounts. It was PW2's further testimony that the Defendant processed paymenfsin violation ·of procedures related to pensioner's who had Account with the Plaintiff for· .·which·· he, advised ·to refund by crediting the requisite amounts to each of thejr accounts. 3 To substantiate the extent of violations, PW2 produced:in evidence, print outs of electronic statements·'°gener'ated from. the :bank -system shOwi'ng amounts: . . wrongfully debited from 71 pensioners' accounts···as _a result of the Defendant·'s '·: · .. breach ·of her duty. The print outs were admitted -a~t ·exhibit P6 collective'ly.,. Accordingly, I· am sati~fi~p ,.th 9t. t~e. Plaintiff ··has successful_ly. :discharged jts . burden to prove breach of the Code of Conduct by the Defendant which takes me to the third aspect. . Having satisfied. th;at:' the . Defendant' '·breached . the. Code .of Conduct as . . evidenced by PW2's testimony as well as exhibits P2, P3, P4 and P6, there qm_ ·. hardly beany doubt that as a result of th~ brt;_aches,. the Plaintiff suffered loss.: , • • ; ' ' :•'•I • . The said loss is the sum of Tshs 147,815,000/~ which represents the amount wrongfully debited·:·. from: 71 Account holders which amount the Plaintiff was · ' . ,· . .compelled_ ' . . .. .· . . to re.-·cn~dit . ~:m the· adyice. •. : of.PW2. ~ '. . ; . Accordir)gly, : I firid; . . . .' .. . . that the third:. · . )~~m in the list of matters.. the Plaintiff was required· to. proy.e to have been :· .sufficiei1~1y proved'. . . . . . . 'Th~ last·ite.rn is in relatiori,the·:Plaintiff's remedy.that·is to'say; abillty:to . . . recover ·the 'amount ;representing :}osssu'stair~ed ·as ·a result of the Defendant's .· breach of her duty in the course of her employment with the Plaintiff. . .. , ... Mr.· Stanley' Mabiti learned,Advocate ·for the Plaintiff urged me hold that . the. Plafr1tiff had a· right to·: recover the:·1oss from the Defendant independent of · the right to terminate · the employment contract. In support. of his view, the learned· Advocate referred the Court to Charlesworth's Mercantile· Law, by· •· Cliff M. Schimitoff &. Da.vid A. Sarre, l4th edition pp 216 and ·217 in which the . authOrsopine that an e111ployee ·must exercise reasonable skills and care in the · performance bf his duty failrng-whicll he is liable to indemnify the employer..in··,. · · i-es·ped · of tonsequen~es: ·of 'his negligent conduct. The learned Advocate also . 4 referred to a decision of this Court ir}Caltex Oil. {T) :Ltd v. Francis Lawa'- Civil case No. 63 of 1989 (unr,eported). wherein. Bahatii) (as t,e then was)sustain~d •an employer's claim for damages· against a: .negligent -conduct of the Defendant · employee's breach of duty -~nd negligence_;· Th.e le~r-ned Advocate sJb:~itt~d f8rt:he; that the empldyer's ·right to recover ioss -from -a negligent. emprby~e ·\s riow judicially 'retognized · outside our ju'risdlction including En"glarid and -cited 'a dedsi6n of the House of Lords jn .·.- Lister v. Ramford Ice\inJ ·coli Storage Ltd [1957J 1 All .· ER 125.In th.C:l( _-; ·,, :, case, the House. of Lord·s held that ·an ~rilployee i~ -under a contractual duty of. care in the performanc~ ·of hrs cfu.ty' :·y;;hose breach entitles·. the employer· to recover damage·s from an employee. . ....... . The learned coun_sel ~mpl~red. t~-~ ._co.urt .to _ find and hold .that the· - employer's right to recover .. . from. ., .· ' a negligent ..·. ,': . . .employe~ '·•.. . was ih . line. with th~ . ',., . ' . . . . . . . sanctity of . contracts ., . discussed . ·.· ',, : by.the.:learned . . ' . .. authors . . . of Principles . and·:;-·· ,• Practice . of . L~bour law, .. . . . . SR Van Jaa.rveld at pp ·274 and 27s·. >: ..·: :L.exis, Nexis,. . . . . : :_ -_ who opine that where ar-1- employ~eJails to co-mply wit_h his duties, the employer .,:·. ·.· ,- . . has a right to . terminate . the . . . to contract and. ,. .. claim fo~ damages caused by breach:_ . or negligent act. It seems, to, be .. ~l~ar from the submissions by the lea~nrd--·:· Counsel for the Plaintiff supported.by ··. auth_oritie.s ..,• he cit~d .that . since it has been ,. , established that the Defendan~ .. . . ~reached.. _·'her ...duty ·.- fn. the. performance . of her · , ' . employment contract resulting in Joss to he~ employer, the Plaintiff has a right-to claim damages. The authorities cited to me by the learned Counsel are too clear - to require any interpolation. . . The. -speeches of LordViscount . .. . Sir:nonds . .. and Tucker inlister· V. Ramford Ice .and Cold , Storage _Ltd.. (supra).- may" serve, to demonstrate the position and I take the liberty to reproduce inthis judgmen~ -a · position -of it as under. Lord Viscount Simonds. had this to say: 5 '1t is trite law that a single act of negligence may give rise to a claim ·. either in to,t or for breach ofa term express or impliedin a contract.. Ot this,· the negligence of a servant in performance of his· duty is a clear • I. - · example. I conclude, then · the first stage of the · a.rgument by saying that the appellant was under._ a contractu_~I obligatiQn of care in the performance of his duf:½ that he committed a breach of it. that ·the respondents thereby suffered damage anq they are entitled to recover that damage from him, unless it is shown either· that the· damage is too remote or that there is . . . some other intervening factor which precludes the recovery. ... 'fat p 130) ., ,!''···:.·- ': ' ... , Later !n tile judgnient Lord Tucker stated: "My Lords, . . I am . .. of opinion . that . . a servant . . employed to drive a vehicle . in the .course o( his employrnent by his master owes ·a duty to his master to take reasonable· care .in' driving and management of the .-'· ' vehic!ei. th;;t for breach of his duty an. action fo~.mded on. contract . . can ·be btought by · the · master ·• against the servant · and. that dan1ages tvhic/1: have been· awarded .against · the master bf/reason o(the se1vants··11egligence or breach of this duty are not too· remote to be· recoverable· in the masters action against his servant claiming damages fq~ br€Jac:h ofcont(act. .. " (at 141). That decision was followed in Janata Bank V. Ahmed (Qutubuddin) Same v. Same,· [1981) IRLR 457(see also [1981) ICR 791) in which the speech··. of Lord Viscount Simonds in .Lister V. Ramford Ice and Cold Storage Ltdwas... · ··· . . . . .-~ . .. ' . ' quoted with approval to:reinforce the proposition that the employee's duty of· .-: care in the per·forma·nc:e· of his· contra~tual obligations to hfs ·employer· failing which the employer· has a right to claim . damages from the . employee. I cannot;· but accept that th_e. decisions are highly persuasive and reflect a sound and 6 • ··corred position which must be applicable to this case. For'my parfI.see no logic.·. ·nor· law which one ·can employ, to· deny an employer such. as. the Plaintiff. to vindicate ··his right to recover. loss occasioned 'as a result of his employee'~-.· . negligence or breach of duty: In other words, as opined by the learned author.s. , ,. · . of Principles .and Practice of Labour Law, Lexis Nexis, SR Va.n Jaarveld · . . . • ·- . : · . -l• . · . . • ,. . • . . . '': . .• • . . . ·•. . '. (supra) the employer's right ag~inst .a recalcitrant employee is n.ot restricted .to • •• . ' . . • • I •• . . • • • • ' • • _cancellation . of employment ·.' ·- . for recovery but to an action ... ', of . loss sustained :in.~· .... : ... ·. consequence of the employee's breach or negligence. As rightly submitted by ~·'lr'. ,:•, • , . • I • • :•,, • • 0 • ,j:::, • •,: • • Mabiti, learned Counsel for the Plaintiff . that . .. accords . . ' with..the principle of sanctity::.. . ;: ' , ' ' ,. • • ·• I ' •• • ': '•: • of contracts discussed by. the. Court . .. . of . Appeal ·.. in. .. AbuaUy Alibhai Azizf,v .... : . :· -: . · :. : . .. ~ . '. ' Bhatia Brothers . Ltd[2000] . TLR . 283 at .. . . p.303. .. ··,. · ),, . .. ,... ·.': : ·· .In sum, I find the _Plain~if:f to _have sufficiently esta!Jlished its case against ,.• •• ! • ' • •. • • ' • • • :. ~ • ' ,I ' . the Defendant and I . accordingly enter·· judgment for P.ayment of T.sh.s .,;···.: .. ·1 • 147;815,000/~-. payable· wi.th ,.i;1te·r~_st. ~t: tl1e .rate ·o/·~;~/o pe;: a~num .from the.?·.:: . ::·:,:; :·· .' .. .. ' ~ . ., , •• ~ I ,.. • • date ~f institution of th~ s_u)t to the da~e.,0,f jup{Jment. The su,m awarded shalt- ,.< ;:<:.,:·, ' . . . . , •.. -~ '•'• ' '., ~ ·_ . , ... ·:. :-~- . : : ·•; - .- . ' .. ' :, ; ! .. -· .. i .. . ' . . , ·. . . . carry intf;rest at the Courj:'s rate of 7% pe~ annum fror11 the date of judgment·,till ;-·.,.,:.:-. ·:'· ,, • • ' .. • .. ~ ; • •,••: 0 • • • 'd ~ • • • 0 • • • full and. final payment._ The. Plaintiff is awarded costs of this suit.Or,d~r ~-·, .... accordingly. L.J.S. MWANDAMBO ·. JUDGE 22/04/2016 Delivered in court in the presence of Mr. Stanley Mabiti lear·ned Advocate for the..- .... · .Plaintiff this 22 nd day of April 20i6: ;. ., .. L.J.S MWANDAMBO JUDGE 7