19980506 TZHC Dar es Salaam

... I IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY I AT DAR ES SALhAM CIVIL CBSE NOo 261 OF 1995 PAUL J. MZUKA. ••••••••••••••••••••; •••• PLAINTIFF VERSUS NATIONAL URBAN \:✓ATER AUTHORITY •••••••• DEFENDANT JUDGE MEN, T ------- BUBESHI 1 J. The plaintiff has filed a claim against the defendants, claiming ;-,r.-·ngst others, ( an order for reinstatement in his employment with all the statutory benefits. The· plaintiff was employed by the National Urban Water Authority, commonly known as NUv/A, as Materials Control Manager. The plaintiff's was charged with,-inter alia,the folio.:.. wing duties. at - to ensure that timely procurementt3- optL~um costs and with regard to quality and quantity specifications of all items purchased from abroard all .,Ei.pitcl expenditur,;:: items and all other centrally purchased materials and services to ensure there is proper receipt, storage and issue of "all centrally purchased items At the start 0f hearing, four issues were framed for determination. These were: - Whether the plaintiff as the materials control Manager of NUWA was directly responsible for the importation, treatment and handling of the ehemical water treatment consigmen~ from Canada. W't.ether there was any loss occasioned by the- pl~intift by the mishandling of the water treatment chemicals from Canada vJhether the plaintiff was lawfully terminated in the circumstances of this case - what reliefs are the parties enti±l~d-~ The plaintiff conducted his own case and he was the sole witness. He testified in -court that he was employed as materials Control Manager on 1/12/1988.- He was working under the Director of Operations. His services we:re terminated on 13/5/90 for the following char_ges: - not following the NUWA Standard specifications for packing materials wren offering the tender for chemicals ., l 2 - not preparing adequate storage facilities for the expected huge quantities of chemicals - not involving ful'.1y otJe\. supplies department staff hence causing a loss of Tshs 23,811,000 million to NUWA. The plaintiff testified that before he joined NUWA., there was an agreement · of Tan3ania between the GovernmentLand Canada to ·import from the latter water treatment chemicals under Import;support Programme to NUWA. He said the Director of Operations did all the work in respect of this consignment and some 3 Canadian firms were shortlisted to do the job~ The plaintiff said he was instructed to formulate the tender which - was drawn according to CIDA procurement :procedure. and packaging were drawn according to the Director of Operations. . That chemical specifications That t~o Canadian firms responded - Caprice and Canadex.. They submitted their bids before NUWA Tender :ormnittee,. He testified that subsequently, of the two firms Caprico won the tender following recommendations from CIDA, t~~s o~erruling the committee's ~roposal to award the tender on spilit basis. But that this Company had quoted packing on paper bags 4 ply and not 1olybags as requested. Ho_tald the court that CIDA recommendation was made despite Caprico 1 s packaging material and l\llJ\.•JA had to comply with the financier's CIDA proposal; PW 1 tendered in court.Anne~ture F, Bl - B5, P, C and N to the plaint collectively. ·· - as Exhibit Pl/... He denied therefore to have been directly responsible for the impo- rtation of the water treatment chemicus from Canada. Tl:~ plaintiff testified further that as there was another consignment arriving at same time :1nder the International Development . . Credit Agency, the defendant lacked logistic support to handle the clearing, transportation and starking for both consign- mento The plaintiff sa:d 1le reco~ended a repµtable firmr, of clearing and forwarding to be appointed to cle¢' the goods as the defendants had never handled such consignment before - Anne-xture P2 to the plaint. He informed the court that he was on compassi _ onate leave· from 22/5/89 to 4/6/89 and during 'his absence M/s Express Tanzania Ltd on 2/6/89 as a clearing agent. PH 1 · testified· the.t it is this company who mishandled the chemicals as there was spillage at the•· Port: and the torn bags· were transported to . . NUWA 's godown. The pla:l,ntitf te.stified that the Canadian High Commission commissioned SGS to investigate t:-J.e cause of the spillage. The· findings wer·e that the chemicals arriv~d· int.'.'..ct· but ap.ill.a.ge occured during discharge from· the ship by using wire ropes which tore the outer plastic cover. · Th'tf report was t~nde;ed a9 p.1:m~:Jijpre_rihe plq.intiff sa1.-d - th e _,..GS .:i -rep-0 •~t he.ld the Tanzania. Harbours Authority . . and M/s ~ I ess Tanzam.a Ltd to be respor,.sible for the spill~ge. He; denied to have been responsible. On the lo$s of Tshs 23,811,0tl, the plaintiff testified that the Board Chairman, in a press ~Jnference ' . . on 20/5/90,reported t~at chemicals -"."°rth Tsh ' ' 21 million were u~abli ..· - •Iehc·e the l~ss, if any, in !Jlonetary 'terms was only Tsh 2.6 million Annexture ~- QG, and N. .Subsequently· the Board put· the loss at Tsh_ 6.5 million and the exporter com:r-.:.-nsated NUWA _ as p~r 1,nnexture E.. The plaintiff tendered in court documents f'.,-:.1e?{ture D 3, .D 2, P 2, E, QG and O which were collectively admitted as Exh.P 2 • • 0 • 0 0 • 0 0 •• 0 0 3/ •&!$ I . , . , _ . . . , . , . . _ , __ ..., ----- ---·-- _____ , _____ ...,..._ ___ - ---· ...... -·-·--, l -~ -3 The plaintiff said CIOA, THA and M/s Express Tan'0ania be blamed for the loss and not himo Again the plaintiff told the court that he tried his best to rebag the u·sable chemicals, and that reduced the loss to a mere 110 bags, valued at Tsh 298,932. The plainti~f testified that the defendant did not specify how the loss of Tsh 23,811,000 was arrived at. That CIDA decided to compensate the defendant to the tune of shs 6.5 million. The plaintiff testified that there was no audit report analysing the los$ as claimed. On the third issue the plaintiff testified that he 1vas condemned unheard . t~ against the principles of natural justice. That the chairman oflprobe·team was also the chairm~ of th~ Defendant's Board of Directors. He complained that his termination was instigated through the CCM branch office at NUWA and the latter according to the plaintiff, took an upper hand, in having his services terminated JY inflating the loss to Tsh 66 million. He laments that th~ CCM Nuwa branch were the source of information which was blessed by the Defendants Board Chairman. The plaintiff testified that even before the expiry bf the 7 days to· which he was suppo- sed __to respon,l to the allegations, the Board Chairman called a press conference _whereby ~e briefed the Minister on the steps taken by the Board of Directors to terminate the plaintiff's employment. He testified that action to terminate him was taken before he was accorded opportunity to be heard by the probe team_ and his defence letter read. He said that the chairman of the Board did not r~~- to his letter of ~xplanation. That he also petitioned the Minister on 15/1/92 - Exh P9 who directed the defendant to reexamine the issue - Exh PlO. And yet his 0-()lleague .one Butogoro with whom they had been terminated together was reinstated. And that a new Board deliberated his case without affording him opportunity to hear his defence. The plaintiff testified that as a result of the defendants action he has suffered h1umiliation through the publication of the fixtitioq.5 loss of Tsh. 23, 811,•oo which never existed loss of income, loss of credibility in society•· He has testi- fied that the termination of employment was null and void and he is praying for an order of reinstatement with all benefits accumulated plus interest to date. '~--- 1~1en cross examined by the defence counsel, the plaintiff said he was involve• to formalise the importation as it had been prepared before. That specification was as per the Tender Document - .a.miexture Pl and chemicals were packed in paper bags. For the defence, the defendant summoned one Manase Joseph Butogoro - Principal Stock V~rifier since January, 1985. -He testified in court that the plaintiff ms . was LJ co worker but got terminated from services in June, 1990. He said the plaintiff was under duty to locat'- for markets and give the importers specifications • e,o • • o e • • 4/ . 1 4 of requirements •. H~ said the plaintiff did not do ·his job properly but that the chemicals were damaged due,- to poor packaging anq, n9 good supervision at the Port. He blemes the plaintiff for not making a follow up delivery. He bld the court that both he and the plaintiff had their services termiriated but he got reenstated •. The witness said the analysis given by the plaintiff was not enough. That some of the chemicals were spoilt but could be re usedo The defendant closed their case.after the testimony of DW 1. On whether the plaintiff was directly resp6nsible ,, f0r the importation, treatment and handling of the chemical water treatment consignment from Canadae 'I ' The plaintiff testified that the agreement to procure chemical water treatment from Canada under the Import Programme was in existence before he was recruited to join NtHJA. He testified further that CIDA picked three Canadian firms to tender for n the job and two respondeud._· These were Caprice and Canadex. The plaintiff formu- 1 lated the tender which was drawn according to C:,'.!:DA procurement procedure~ . ·The ana- lysis and evaluation was tendered before the defendants Tender Committee where the quotations from the two bidders were analysised. The plaintiff was also a member of the tender committee.· The committee while studyiJg the bids noted that the firm ' Caprico had quoted packing on paper bags with 4 ply and not polybags. The Committee; s recommendation that the tender be awarded on split' basi.s with the other Company was ,i I overruled by <;:IDA. That CIDA recommended the cheaper of the two, that is, Caprice and CIDA went for this company despite its poor packaging material. By using the ,, I, lowest bidder a saving to the tune of Canadian !,dollars 'I 214·;·711.5, Tsh 22,554, 707/50 i was made. From this evidence therefore it is evident ·;1 I that the plaintiff could not overrule. the tender committmentor CIDA' s final 1,rec;ommendation. The adage 11 beggers cannot be chosersn il3 apt in this regard. The defence has complained that the pl~intiff misled the defendant by failing to advise the Tender Committee on the repersus§io; which m~y occur by accepting :, ,, materials packed in paper bags and not poly proplene bags palletised. That he mis- led the Tender Committee by remaining silent instead ,, I of giving expert opinion. That could have been so but was there evidence tendered in this court to that effect? The defendant did not summon any witness from the ,tender committee or th~ Probe team to testify in court in that regard. This court ik not satisfied that the plaintiff was solely to bleme for the decision. If I may be,allowed to add, it is CIDA who were ,, allowed to have their way as financiers of thepr'ogramme. Issue no and is therefore answered in the negativeo Issue no 2 whether there was a:ny loss occasioned by the plaintiff by the I mishandling of the water treatment chemicals from Canada. ••ooeo•o•••5/ .:. 5 - in It i&r~vidence that while the plaintiff was a way, between 22/5/89 to 4/6/89~ on compassionate leave, the consignment arrived and ~;JlvA appointed M/s Express Tanzania . Ltd to clear the goods from the ;i0r•~ . The plaintiff testified that during the exercise, ·some bags were torn up arid spillage_ oc_ cured, He further told the cowt to investiKate the cause, SGS dis- that the Canadian High Commission commissioned SGS (_ . that although -che r covered consignment arrived at the port intact, spillage was due to poor handl'ing during · d'is- charge by using wire ropes which tore the outer plastic covers. The plaintiff said SGS blamed the Tanzania Harbours Authority abd M/s Express Tanzania Ltd who transpo- rted the chemicals to NU\.'JA I s godown. .rhe plaintiff was not around when the offloading 1 was taking place. '· Out of this spillage, some of the chemicals was re bagged and and later used. The issue here is what was the loss in monetary·terrns that can be attributed to the plaintiff. The Board of Directors of NUWA put the loss at Tsh 23,811,000. The Chairman in a press conference on 20/5/'.J.reported that chemicals worth Tshs.21,0QO,IOO out of the alleged loss of Tshs 23,000,000 could be wc;ed. The loss therefore was percentage a mere L. ~hat is Tsh 2. 6 million. Again the court ,i;:; told that the Board put the loss at Tsh 6.5 million to which compensation was paid by CIDA. Now who was actually to blameo On evidence, there were other hands responsible. These were CIDA for accepting poor packing, THA and M/s Tanzania Expre~s by Limited. · The plaintiff testi- fied in court to have re bagged some of the che~icals thus reducing the loss to a mere 110 bags. Defendants have not challenged this. It is evident from the sub- mission made by the defendant that they are not. ~m::e what the loss was and expected on my part .. the plaintiff to.come with a figure.LI expected t~e defendant to come armed with 11 'I a financial loss report and not to brush the matter under a phrase ;: the loss· is the estimated equal value of the materials wrongly ~rdered •••• il • And again the fact that CIDA agreed to compensate the defendant to the ,turie of Tsh 6.,5 million, it goes to .:ihow that CIDA had accepted liability to the tt.fue .,Tsh 6.5 million•. W:,n there evidence tendered in court to show how much loss was contributed to the plaintiff? I saw none of ito The evidence tendered by (m,r 1) M•. J. Butogoro was, to say the least, •1 not helpful ~o to the defendants case. I am not sure if the witness was deliberately •' lying under oath but certainly he was very eva~ive. In sum I would answer issue number two in the negative, that is, there was 'no . loss occasioned by the plaintiff 1 through mishandling of the water treatment -chemicals from Canada. Isuo- no 3 is 11 I • whether the plaintiff was lawfully terminated in circumstances of this case., If tiS in issue no 2 there was no loss attfibut~d to the plaintiff then. it foJ.lows as day follows night that, the termination meted out to the plaintiff was not lawful.. There was no evidence tendered to support the termination, leaving this court to speculate as t~ the real motive behind the termination. The plaintiff has si.,bmitted that he was condemned unheard, in clear viot.::rtdanof the principles of natural justice., He has complained that the chairman of the Probe Team was also ••• 0 •• 0 ••• 6/ - .6 the chairman of the defendants Board of Directors - 1• 1 ho therefore acted as the investigator, prosecut6~;and judge of his oi.-m case, that members of the probe team also · wereL,sarne board members~ If indeed this is what happened then the principle that 11 no man should be a judge in his own cause; 1 was clearly breached by the defendant. The plaintiff has also complained that although he faced same charges with DW 1 Butogoro, the latter was reinstated while he plaintiff had other charges substitutedo The defendant did not challenge this and (DW l) Bui;ogoro 1 s evidence did not help the court in this regard. On the evi~ence tendered by the defendants this court is not satisfied that on balance the1(plaintiff I s· )termination was lawful. I find that the termination was unlawful, and hence null and void. Issue no 4 is whether the plaintiff is entitled to 9.ny relief. I think yes. The plaintiff is preying to be reinstated to his post and paid all his dues plus interest at 31 %on his earnings, from date of termination to date-of final payment. In the atternative the defendant pcy him salary and benefits with interest ~n lump- su.m until lie attains the comp)l.].sory age of retirement, 55 yrs in the year 2004. This court, after taking into account the plaintiff's very exhaustive evidence on what transpired before termination at the defendant head office, is of the view that the plaintiff be reinstated to his post and 'paid all dues plus interest and costso ' /·, ;F ,; ~-"· .' I ' •., -J-.,\.if..J:..c.hJ.Ll:-:~ Delivered before· A.G. Bubeshi . JUDGE Plaintiff and Mselem for Defendantso 6/5/98.