sikute enterprises limited vs joseph mayoli another 2010 tzhc 285 10 august 2010

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL REVISION No. 64 OF 2005

SIKUTE ENTERPRISES LIMITED............................................................ APPLICANT

VERSUS

JOSEPH MAYOLI AND ANOTHER.................................................. RESPONDENTS

RULING Mruma,J The ap p licant through the services of M r. Mchome learned counsel has lodged an application to this court seeking for the following o rd ers; i). That this honorable court be pleased to call fo r the record s and proceedings o f the Resident M agistrate’s Court o f Dar es Salaam at Kisutu in Employment Cause No 86 of 19 9 9 and revise the said Proceedings, judgment dated 10th February, 2 0 0 4 ,d ecree extracted there from, execution order and ruling and order dated 5 th September,2 0 0 5 dismissing the applicant's application fo r review . ii) C ost. Hi) Any other relief(s) that this Honorable C ourt may deem just and fit g ra n t” (emphasis supplied). The ap p lication is footed on Section 44(1 )(b) of the M ag istrates’ Courts A c t,1 9 8 4 / Section 79(1 )(a) or (c) and 9 5 of the Civil Procedure C o d e and it is backed up by the a ffid a v it of Mr. Mchome wherein he deposed to the facts which I b riefly sum m arize as follows:- There w as an em ployment Cause number 8 6 of 1 9 9 9 filed at Kisutu resident m agistrate pr< ' f ' in lieu of notice, le a v e and severance allow ances. H ow ever, there w ere no issues draw n at the hearing of the said cause, and the trial m agistrate p ro ceed ed to enter judgment without notifying the ap p lican t then d efen d an t. The a ffid a v it proceed to a v e r that the decree e xtra cte d there from included a sum

of Tsh. 1 9 1 ,0 0 0 / = fo r each p lain tiff as transport allo w ance which had neither been p le ad e d nor g ranted and the Court o rd ered execution of the sam e. The m ater did not end there. The ap p lican t re-ap p ro ached the same Court, this time seeking fo r review of the said decision which w as refused and without addressing the issue of decree which w as at va rian ce with what w as p le ad e d and granted , together with the judgment which lacks qualities of a judgment. He then a v e rre d that there is m aterial irreg ularity and the court acted either without jurisdiction and or excised its jurisdiction ille g a lly . He therefo re invite^ thk^ o u rt to revise the proceedings and quash the sam e. v Page 3 of 24 The application cam e up for hearing on the 2 2 nd M arch, 2 0 0 7 and Mr. M ayo li fo r the respondents p ra y e d that it proceed by w a y of written submission meanwhile to be allo w ed to file their counter a ffid a v it. O ne interesting fact a p a rt from their vehement denial of the a lle g e d facts in the a ffid a v it, the respondents rose the issue of time lap se for the application-that it w as b arred by the law due to time lapse-it is interesting because, they did not p re fe r it to come as a prelim inary objection but rather decided to state it as a fa c t in their counter a ffid a v it. They contended that the applicant had fa ile d to

show “ eligible reasons” for the judgment of the resident m agistrate to be re vie w e d , hence asked this court to dismiss the application with costs. A ccordingly the p artie s w ere allow ed to arg u e their cases by w a y of written submissions/"I I tovS^ keenly gone through both Page 4 of 24 p artie s’ submissions and indeed have been of v a lu a b le assistance to this court. But B efore proceeding further, suffice it to recount what transp ired until the application and the said arguments via a ffid a v its . The employment C ause no 8 6 which is the nucleus of this m atter w as filed in the Kisutu resident m agistrate court as a labour o ffice rs’ report under s . 132 of the Security of employment Act, cap 3 1 0 . This w as a fte r the p laintiffs, now respondent w ere claiming their terminal benefits from the d efen d an t now ap p lican t due to their being term inated without notice or paym ent in lieu thereof and other terminal benefits as befits them per the law . The reconciliation had fa ile d hence the report to the court which w as filed as a plaint, and to be precise, it contained, as per the record, only three claim s. I hereunder reproduce the p art of the statem^ot^of^omplaint which contains / the said claims: STATEM ENT O F THE CO M PLAIN T: “ That they w e re em ployed b y the ab o ve Em ployer in the c a p a city of grass cutter from 1 7 /2 /9 7 up to 1

6 / 1 2 / 9 8 at the w a g e ra te of 8 0 0 0 / = per w eek. That on the 1 6 / 1 2 / 9 8 they w e re term inated by the said em ployer without being p aid they (Sic!) terminal benefit. I hasten to point out that as noted from the ab o ve claims there a re only three claim s in the statement of claim as from the lab o r report and hence the claim in respect of transport and house allo w ance is not spotted here, which is one of the ground for the quarrel betw een M r. Mchome learned counsel and the Resident M ag istrate Court. At first the d e fe n d a n t/a p p lica n t mounted a prelim inary objection to dissuade the court from the matter ant of jurisdiction, and p ro ceed ed to arg ue his case basing on sections 2 8 and 4 2 of the Security of Employment Act C a p .5 7 4 which ousts the jurisdiction of the normal courts to try employment causes. This w as argued b y w a y of written submissions too and he submitted therefore that since the p laintiffs had been term inated without either notice or s a la ry in lieu thereo f, it w as a summary dismissal which civil Courts a re not allo w ed to entertain by the said la w . To counter these argum ents, the p la in tiffs/ respondents argued that, the issue of jurisdiction cannot arise since; they w ere not em ployees but w e re under a contract for service and w ere just p aid on a w e ekly basis. And since the m atter w as based

on contract for service it w as well within the am bit of the Court. The trial Resident M ag istrate w as convinced by this argument and ultim ately he ruled out the objection and had the m atter proceed to a hearing . Page 7 of 24 The attem pt to have the m atter extinguished at the outset by the d e fe n d a n t/a p p lica n t did not end just there. At the hearing, at the close of the p la in tiff’s case, he submitted a p lea of no case to answ er, on the grounds that the p laintiffs/respondents had no any written document to prove their contract and neither did they have any appointm ent letters or termination letters fo r that m atter. He thus charged that there w e re no tria b le issues. The p laintiffs/respo nd ents countered that argument by submitting that not all o ral contracts need be established by form al writing as p er the s.2 of the Employment O rd nance C a p .3 6 8 . Once a g a in the trial m agistrate w as in consonance with their counter argum ent and ruled that the m atter should proceed to a full hearing inter-p arte. It w as from there that, a series of non a p p e a ran ce s without notice, as it a p p e a rs on record, fo r the hearing of the m atter by the d efen d an t took ground, until the m aJ M ag istrate got w e a ry ^ Page 8 of 24 of the same. Even tually, the learned trial M ag istrate entered judgment, and I think, rightly so, against the d

efen d an t. For easy of later reference, I reproduce the judgment which also forms p a rt of the nucleus of this application:- “ The non appearance o f the defendant and his counsel M r. W .M chom e has now been notorious. I find reason to enter Judgm ent in favor o f the two defendants as p ra ye d ” . Sg d . Hon. Mirumbe- SRM . 1 0 /2 /2 0 0 4 . A ccordingly a d e cre e w as subsequently e x tra cte d , or rather d raw n there from to the effect that the p laintiffs w e re entitled to all p ra y e rs as p ra y e d ,and over and a b o v e , a transport and housing allow ance to the tune of 1 91 ,^ 0 0 / ^ e a c h . As I pointed Ja y\ ) Page 9 of 24 out e a rlie r, this w as not p le a d e d in the statement of com plaint. It is incom prehensible as to why did they decide to bring it up during trial and why did the trial M ag istrate a w a rd the same. For a vo id a n ce of doubt, I reproduce the p art of the said decree hereunder DECREE: “W HEREFORE: - The Plaintiffs claim ed from the defend ant their term inal benefits which w e re not paid to each as follow s: 1. O ne month s a la ry in lieu of notice 3 2 ,0 0 0 / = 2. Severance allo w ance 3 8 ,4 0 0 / = 3. Leave 5 2 ,2 6 6 .7 0 / = 4 . Transport and house allow ance 1 9 1 ,0 0 0 / = Total 31 3,6 6 6 .7 0 Page 10 of 24 Judgm ent entered in favo u r of the plaintiffs as p r a y e d ....” The said judgment and the decree

there from landed into the defendant. He w a s a g g rie ve d by the sam e. He decided to move the court by w a y of application for review so that the Court can review its judgment and the decree there from , and ap p lied for stay of execution of the same pending determination of the m atter. S ta y w as g ran ted . The grounds fo r seeking review w ere thus 1. That the Court erred when it passed judgment as p ra y e d without addressing itself to specific issues required to be proved and whether the same w e re p roved.

2. That there is error or a mistake because no issues w e re d raw n and p roved. Page 11 of 24 3. The Court e rre d as it did not address the point raised in the written statem ent of defense p articu larly p a ra g ra p h s N o .l and 4 that the A pplicant Com pany was incorporated on 3 1 .1 2 .1 9 9 7 while the claim is from Feb ru ary 1 9 9 7 b e fo re incorporation. 4 . That there is a m istake or ap p are n t erro r on the fa ce of record because the decree included Transport allow ance of Tshs. 1 9 1 ,0 0 0 / — for each Respondent which w as not a matter p le a d e d and proved. 5 . There is a p p a re n t mistake because proof of oral contract of service could only be by w a y of record of oral contract under s.35 of the Employment O rdinance C a p .3 6 6 which the respondent did not prove is existence. 6 . That there is an a p p a re n t mistake on the ground for entering judgment as p ra y e d because the reason given w as notorious absence of the a it and his counsel while no -ap p earan ce a fte r d e live ry of ruling on no case to an sw er w as on two occasions only as p er the court’s re co rd (i.e . 16th Jan u ary 2 0 0 4 and 1 0 th Fe b ru ary 2 0 0 4 ) 7 . That no notice of judgment w as served to the A pp licant when judgment w as passed th e re after till in e a rly Jun e,2 0 0 4 when fourteen d ays notice of intention to execute w as served and the contents

of the said judgment and decree w e re known to the ap p lican t on 1 1 th June, 2 0 0 4 a fte r p ayin g perusal fe e and reading the file . Time stated running on that d a y . Having e v alu a te d their submissions, the principal resident m ag istrate, in a single p a ra g ra p h refused the application and he ad vised the ap p lican t to file an a p p e a l. He ruled that the ap p lican t had fa ile d to show e lig ib le reasons for re view . Part of his decision is here under reproduced for caption purposes: Page 13 of 24 “Studying the submissions above it is clearly that the applicants counsel has failed to point out the eligible reasons for the . judgment to be review ed The issue of error on face of records . does not stand To the contrary the counsel seems to have undertaken to fault the courts evaluation of evidence. On these basis it is my profound opinion and finding that the applicant” His decision ho w ever, left much to be desired to the extent that the applicant w as left without any other avenue exce p t this court by w a y of revision of the m atter. A ccordingly the a p p lica n t had no option but to move this court to call for and revise:- 1. The proceedings of the em ploym ent cause no.86 and the judgment thereof d ate d 1 0 th F e b ru a ry ,2 0 0 4 2. The D ecree extracted there from^execution order, Page 14 of 24 “Studying the submissions above it is

clearly that the applicants counsel has failed to point out the eligible reasons for the . judgment to be review ed The issue of error on face of records . does not stand To the contrary the counsel seems to have undertaken to fault the courts evaluation of evidence . On these basis if is my profound opinion and finding that the applicant ” His decision how ever, left much to be desired to the extent that the a p p lica n t w as left without any other avenue e xce p t this court by w a y of revision of the m atter. A cco rd ing ly the ap p lican t had no option but to move this court to call fo r and revise:- 1. The proceedings of the employment cause no.86 and the judgment thereof dated 1 0 th F e b ru a ry ,2 0 0 4 2. The Decree extra cte d there from, execution order, Page 14 of 24 3. The ruling and order d ated 5 th Sep tem b er dismissing the a p p lic a n t’s application fo r re view . In short this court is now set to exam ine whether the requirements of the law w e re com plied with by the courts below in the conduct of the em ployment cause no.86 of 1 9 9 9 . In this exercise, I am guided by section 7 9 of the civil procedure Act C a p .33 R.E 2 0 0 2 , and section 4 4 (1 ) (b) of the M a g istrate s’ courts Act C a p .l 1 under which the application w as p re fe rre d . From the ab o ve provisions, the necessary conditions for revision a re that i) There must be a

case decided by a subordinate Court ii) No a p p e a l to the High Court lie from such a decision iii) There is a jurisdictional erro r committed by the subordinate Court. It is not disputed that there w as a case decided by the subordinate court and in this case is an em ploym ent cause no.86 of 1 9 9 9 . This w as decided in the Resident M a g istrate court and la te r on a review ap p lication which w as refused by the same court. As to the second condition a b o ve , it will be satisfa cto rily met or an sw ered by determining the proceedings and decision of the trial court which form ed the basis of both applications for review and subsequent revision to this Court. I p re fa c e my analysis with an observation in consonance with the a p p lic a n t’s counsel reg ard in g the question of a counter a ffid a v it by the respondents which contained an issue of la w , that is; they sought to b a r the ap p lican t from proceeding on the ground that it w a s time b a rre d . The ap p lican t has re fe rre d this court to the decision in case of Uganda vs. Commissioner of Prisons, Ex- parte Matovu [1966] E.A 520 which w as to the effect that a ffid a v it for use in court, being substitute fo r o ral evidence, should only contain statements whether of his own personal know ledge or from information which he believes to be true, and such a ffid a v its should not contain extraneo

us m atter by w a y of objection, p ra y e r or leg al argument or conclusion. He therefore claim ed that the counter­ a ffid a v it file d by the respondents w as incurably defective and should be exp ung ed from the records. I looked at the said counter a ffid a v it and indeed, a p a rt from general d en ial, they sp ecifically mounted a p ra y e r within to the effect that the ap p lication should be dismissed since it w as time b arred as it w as lodged out of “ 6 0 to d a y s” [sic], in their own writing! I h ave re fe rre d to this as an interesting move by the ap p licant e a rlie r on. It m ay be that it w as instigated by lack of know ledge on the requirement of the law with re g ard to a ffid a v it by the respondents. In the circumstance, I find the said counter a ffid a v it to be incurably defetstive. Now, I turn to the proceedings and judgment and d ecree of the trial m agistrate on the employment cause no .86 of 1 9 9 7 . The ap p lican t has faulted the whole proceedings firstly because the trial m agistrate did not fram e issues for determ ination, the respondents did not p ro ve their case, and a notice fo r judgment w as not issued to the ap p lican t. He further contended that the judgment has no contents of judgment, that it does not show points for determ ination, and the reasons for decision. As of the d e cre e he submitted that the decree contained a p

ra y e r which w as not determ ined in the judgment and neither w as it p lead ed by the respondent. He therefore submits that there w as nothing to a p p e a l against as opined and suggested by the principal resident M ag istrate. In the wording of Order XIV rule 1(1) of the Civil Procedure Code, [Cap.33 R.E 2002], it can be inferred that an issue is a point of varian ce betw een the suit where a Page 18 of 24 m aterial proposition of the fa ct or law is asserted by one p art but denied by the other. Under rule 5 of the same O rd er, fram ing of the issues upon which a right decision will be based is m ade a m and ato ry duty of a m agistrate presiding over the case. I h ave gone through the record of the proceedings and I could not find the issues which w e re to be determ ined in the em ployment cause no .86. It follow s there from that this w as an error on the fa c e of the proceedings. But failu re to fram e issues by itself is not fa ta l to proceedings as long as the p arties to the suit knew w hat the real question between them is and the decision w as taken on it, and the court considered that evidence on m aking the decision. The p arties in the employment cause no.86 w ere at va ria n ce on various points m ainly being the nature of their relationships and entitlements following the termination of their relationship. This can be g ath ered from the labour office

iport to the court and Page 19 of 24 the subsequent submissions of the p arties. To that extent I am inclined to b elieve that the parties knew w h at w as the re al points of their divergences and therefore for the determ ination of the Court, hence the fa ilu re to fram e issues in this re g ard was not fa ta l. H ow ever, as contested by the ap p lican t, the trial m agistrate, upon non a p p e a ra n c e by the ap p lican t, entered judgment in favo u r of the respondents, without calling them to prove their ca se, and neither did his judgment contain evaluation of the evidence. Order X X rule 4 of the Civil Procedure Code [Cap.33 R.E. 2002] requires tha a judgment should contain a concise statement of the case, the points fo r determ ination, the decision thereon and the reason for such decision. It does not nratter what form at 1A / the judgment should ta k e , [see K a s u s u ra v . K a b u y e (1 9 8 2 ) T .L .R 3381. I h a ve gone through that judgment which I reproduced herein at the outset, on the fa ce of it, it is loud and cle a r that the provisions of O rd e r XX rule 4 of the C P C (supra) w ere vio la te d . And e ven tu ally, therefore I a g re e with the submissions of the ap p lica n t that there w as nothing to a p p e a l ag ain st since the purported judgment w as outside per view of the law and acco rd in g ly its resultant o rd ers. In such

circumstances the proper course w as to move the court to review its proceedings and judgm ent. I accordingly find that there w as no judgment m ade in the e y e s of the law , and hence the second prerequisite qualifying this m ater for revision is met. It m akes it easier to discern that the d ecree also cannot stand and th e re fo re w h atever o rd er m ade in respect of its execution. This is simply because, in terms of Ord 6 (1 ) of the Page 21 of 24 C P C , a d ecree follow s a judgment; hence if there is no judgment there cannot be a d ecree properly so ca lle d . A p a rt from that, the la w under the sam e O rd er X X rule 6 (1 ) of the CPC requires that the decree inter a lia should contain particulars of the claim . The d ecree in issue did contain extraneous a w a rd of transport and housing allo w ance which w as not p le ad e d nor proved by the respondents. I therefore find that there w ere jurisdictional errors committed within the course of the proceedings. This can b e, in view of the decision in the case of V e n k a T a a jiri v . M indu (1 9 4 9 ) A .C 156, categ o rized as acting in breach of statutory provisions and committing some p rocedural errors within the trial which affected the ultimate decision. The ap p lican t also wishes this court to revise the ruling and order refusing his ap p licatio n for review by the Principal resident M ag istrate.

This w as an obvious conduct ng in breach of statutory provision of Order 42(2) of the Civil Procedure Code [C a p .33 R.E 2 0 0 2 ], which is to the effect that the Principal M a g istrate w as not the right ad judicator of the m atter. The law is ve ry cle a r that such ap p lication for review should have been determ ined by the sam e m agistrate whose proceedings or judgment forms the subject of review . It follow s there from that the proceedings by the Principal trial M a g istrate w ere out of the am bit of the law and therefore the ruling there from rejecting the review cannot stand the test of le g a lity . There a re no reasons assigned as to w hy the matter coming for review w as sent to the principal m ag istrate to make a ruling instead of the senior resident M a g istrate whose proceedings and judgment w ere sought to be re vie w e d . To make the m atter even w orse, the principal resident m agistrate simply stated “ the applicant has failed to^atssign eligible reasons for I find that the judgment w as not a judgment in terms of the law governing judgments, and the resultant d ecree cannot survive. And the o rd e r refusing an application for review w as also not justified. Henceforth this application is a llo w e d , the judgment and d ecree thereof and hence the execution orders are herb y set asid e. Let the m atter be remitted to the trial m agistrate for a p roper course as provided by the la w . I m ake no orders as to cost. O rd e r acco rd in g ly. ^ D ated : 1 0 th August, 201 0 W o rd s: 3 ,5 7 8 Page 24 of 24