20100623 TZCA Dar es Salaam

" f'L ' . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, C.J., MUNUO, J.A., And NSEKELA., J.A.) CIVIL APPLICATION NO. 191 OF 2005 PETER DINDILI ......................................................................... APPLICANT VERSUS BANK OF TANZANIA ............................................................... RESPONDENT (Application for the Review of the decision of the Court of Appeal of Tanzania at Dar es Salaam) (Munuo, J.A., Nsekela, J.A., And Kaji, J.A.) dated the 27 th October , 2005 in Civil Appeal No. 99 of 2001 RULING OF THE COURT 15 June, 2010 & 13 th July, 2010 MUNUO, J.A.: The applicant, Peter Dindili, brought a Notice of Motion for Review under Rule 3 (2) (b) of the since repealed Court Rules, 1979, now Rule 4 (1) of the Court Rules, 2009. The said Rule 4 (1) states verbatim- 4 (1) The practice and procedure of the Court in connection with appeals, intended appeals and revisions from the High Court, and practice and procedure of the Court in relation to ... review and reference; and the practice and procedure of the 1 High Court and tribunals in connection with appeals to the Court shall be as prescribed in these Rules or any other written law, but the Court may at any time, direct a departure from these Rules in any case in which this is required in the interests of justice. This application is premised on two grounds namely:- 1. That the Court failed to consider the letter of retrenchment, annexture B, thereby arriving at a wrong decision. 2. That the Court failed to note that the record of appeal contained no Voluntary Retrenchment Agreement. Before us, the applicant reiterated the above grounds of review. He complained, rightly in our view, that his name was misspelt for it reads Peter Kindili instead of Peter Dindili. It appears the error is typographical so we correct the same under the slip rule. On the review, the applicant submitted that his employment was terminated by the letter appearing at page 46 of the record of appeal, annexture B to the affidavit in support of the application. 2 We wish to reproduce the letter for it was inadvertently omitted in the judgment. The letter reads in Kiswahili: 31 Desemba, 2010 Kumb. 10497, Ndugu P.M. Dindili, Benki Kuu ya Tanzania, S.L.P. 2939, DAR ES SALAAM. Ndugu P.M. Dindili, YAH: MAOMBI YA KUACHA KAZI KWA HIYARI CHINI (YA) ZOEZI LA UPUNGUZWAJI WA WAFANYAKAZI. Nakuandikia kuhusiana na somo hilo hapo juu. Aidha napenda kurejea katika maelezo ya Sekula yenye kumbukumbu nambari 4042 ya tarehe Septemba, 1993. Napenda kukujulisha kwamba Benki imeamua kukupunguza katika ajira yake kuanzia tarehe 31/12/1993 na utalipwa "Golden Handshake" kwa mujibu wa mkataba kati ya OTTU na Benki kama inavyoonyesha katika hati ya malipo iliyoambatanishwa. Malipo hayo yatafanyika tarehe 10 Januari, 1994 baada ya kukaguliwa na Mkaguzi wa Mahesabu. Hata hivyo Benki itatenga shilingi 2,690,000.00 ambazo kati ya hizo zitawekezwa katika dhamana za serikali kwa jina lako iii kukuwezesha kulipa deni la gari kutokana na pato la dhamana hizo mpaka deni litakapokwisha, na shilingi laki 300,000/= kama kinga dhidi ya madeni ambayo yatagunduliwa baada ya zoezi hili na kiasi kitakachobaki utarudishiwa. 3 Tafadhali unatakiwa uwe umerudisha kitambulisho, kadi ya matibabu na vifaa vyovyote ulivyokabidhiwa na Benki ikiwa ni pamoja na funguo za ofisi, funga akaunti yako na rudisha hundi ambazo hazijatumika kwa Meneja Huduma za Kibenki, kabla ya kupokea malipo. Kuhusu malipo yako ya akiba ya uzeeni, utafuatilia mwenyewe kwenye shirika la PPF/NPF baada ya kujaza fomu na kufuata taratibu zinazohusika kama utakavyoelekezwa na Idara ya Maendeleo ya Watumishi. Napenda kuchukuwa fursa hii mimi binafsi kukutakia heri ya fanaka katika maisha yako ya baadaye. Wasalaam, N.N. Kitomari, NAIBU GAVANA. Nakala: Mdhibiti wa Fedha. Mkaguzi wa fedha za ndani. Meneja Huduma kibenki. Hakikisha akaunti yake haiachi deni na inafungwa. Meneja Usalama. We agree with the parties that the co- appellants, M.E.Nkurlu and Peter Dindili, both got their respective termination letters: Ref. No. 1018 dated 31/12/1993 for Nkurlu and Ref. No. 10497 dated 31 st December, 1993 for Peter Dindili. The 1st appellant was retrenched per his request but 4 . I the applicant's employment was terminated by the Bank. The letters show that both appellants got terminal benefits and a Golden Handshake, an unspecified lumpsum payment, in appreciation of their service to the Bank of Tanzania, their employer. In this review, the applicant submitted that he stopped working at the end of January, 1994 so his terminal benefits should have been calculated from the new salary in January, 1994 instead of the December, 1993 salary which was lower. Hence his claim for arrears of terminal benefits plus interest thereon, the subject of this review. Ms. Mguto, learned advocate, represented the respondent Bank. She urged us to dismiss the review for it does not meet the criteria for review as pronounced in the cases of Dr. Aman Walid Kabourou versus Attorney General, Civil Application No. 70/1999 (CA) (unreported). She contended that there is no apparent error on the face of the record. Furthermore, she submitted, the Court was seized with jurisdiction to determine the case, and that the judgement was not obtained by fraud. Moreover, counsel for the respondent observed, the applicant was not deprived of a hearing during the conduct of the appeal. The review, 5 .:. I ' counsel for the applicant maintained, should be dismissed for it lacks merit. The Tanzania Court of Appeal Rules, 1979 did not have specific provisions for Review so the Court invoked its inherent powers as demonstrated in the cases cited supra. The Tanzania Court of Appeal Rules, 2009 now provide for review thus: Rule 66 (1) The court may review its judgement or order, but no application for review shall be entertained except on the following grounds:- (a) The decision was based on a manifest error on the face of the record resulting in the miscarriage of justice; or (b) A party was wrongly deprived of an opportunity to be heard; ( c) The court's decision is a nullity; or (d) The judgement was procured illegally, or by fraud or perjury. (2) to ( 4) not applicable here. (5) An application for review shall as far as practicable be heard by the same Justice or Bench of Justices that delivered the judgment or order sought to be reviewed. (6) to (7) not applicable here. As evidenced by the applicant's termination letter, his employment ceased on the 31 st December, 1993. The applicant tendered no other 6 ,.i termination letter to prove that the said letter was revoked by the bank or varied to apply later in January, 1994. The letter, we observe, was authored by the Deputy Governor of the Bank of Tanzania at that time, indicating that the bank would terminate the services of the applicant on the 31 st December, 1993 and that the applicant would be paid his terminal benefits and a Golden Handshake. Under the circumstances, we agree with counsel for the respondent that the employment of the applicant officially ceased on the 31 st December, 1993. We, furthermore, agree with the respondent's counsel that the TO WHOM IT MAY CONCERN LETTER Ref. 10497/11 dated 23 rd May, 1995 was not issued by the bank to vary the termination effected on the 31 st December, 1993, one and a half years previously. We are satisfied that the letter dated 23 rd May, 1995 was issued to enable the applicant to get employment elsewhere for it asked To Whom It May Concern to- Kindly extend to the applicant any assistance he may require. The letter stated that the applicant was hardworking and honest during the period he served the bank. It is worth noting here that the letter 7 '. dated the 23 rd May, 1995 was not authored by the Deputy Governor, who issued the termination letters to the co-appellants on the 31 st December, 1993. The May, 1995 letter was written by the Manager Personnel Management, who is subordinate to the Deputy Governor, apparently to assist the applicant secure employment. As the applicant was duly paid his terminal benefits and a Golden Handshake as per his letter of termination, we find no merit in the review. We accordingly dismiss the review. Dated at Dar es Salaam this 23 nd day of June, 2010. A.S.L. Ramadhani CHIEF JUSTICE E. A. Munuo JUSTICE OF APPEAL H. R. Nsekela JUSTICE OF APPEAL I certify that this is a true copy of the original. . ~ J. S. Mgeffa ··~ DEPUTY REGISTRAR 8 11 11 ,, i 11 4 ! fd (; I ' ~' 't-'!. ... L! 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