tanzania telecommunication company limited vs charles so andrew 2007 tzhc 291 29 may 2007

IN THE HIGH COURT OF TANZANIA AT TABORA MISC. CIVIL APLICATION N0.30/2003 (Originating from Misc. Application No.8/2004 and another as per P.M. Nkombe - PDM at Tabora District Court) TANZANIA TELECOMMUNICATION COMPANY - LIMITED............................................ APPLICANT VERSUS. CHARLES S/O ANDREW...................................... RESPONDENT RULING 15™ March, 07 & 2901 May, 07 MZIRAY. J. This is an application for revision pursuant to sections 43 and 44 of the Magistrates' Courts' Act, 1984 read with section 79 of the Civil Procedure Act, 1966. It seeks to revise the ruling in Misc. Application No.8 of 2004 of the District Court of Tabora dated 26.7.2005, delivered by P.M. Nkombe - Principal District Magistrate. i The application is filed by the Tanzania Telecommunications Co. limited as applicants against one Charles Andrew who is the respondent. In the District Court of Tabora, the respondent was the successful party in an application he filed against the applicant for enforcement of the decision of The Minister for Labour under the Security of Employment Act which ordered for his re - instatement to his former employment. At this juncture it prudent to know first the facts of the case. Here are the facts. The respondent was employed by the applicant as a Technical Auxilliary Grade 11 stationed at Shinyanga. On 3/4/1998 he was summarily dismissed from employment. Aggrieved, he referred the matter to the Regional Labour Conciliation Board which reversed the decision of the applicant and ordered the applicant to terminate the services of the respondent and pay him terminal benefits. The respondent was aggrieved with this decision and referred the matter to the Minister who on hearing the dispute, reversed the decision of the Conciliation Board and ordered for the reinstatement of the respondent. It would appear the respondent opted to be paid compensation in lieu of reinstatement and sometimes in June, 1999, he was paid all his benefits and compensation amounting to 2 shs.2,177,128/=. The matter did not end here. Sometimes in 2004, almost five years after the respondent has received his terminal benefits, he filed Miscellaneous Application No.8/2004 in The Resident Magistrates' Court of Tabora to enforce the decision of The Minister. The application was granted. In addition, the respondent was awarded a total of shs.10,218,006/70 as salaries and other benefits, minus the terminal benefits already paid to him of shs.2,177,128/=. Being dissatisfied with the decision, the applicant lodged this application. In the affidavit deponed in support of the application and the written submissions by MSK Law Partners (Advocates), the applicant is arguing that there was no order to be enforced since the respondent had previously waived to be reinstated following his acceptance to the retirement benefits paid to him. The learned Advocates referred to the cases of Mengi Mwandu V. TTCL - High Court (DSM Registry) Civil Appeal No. 174/2003 (unreported), and Tanzania Telecommunication Company Limited V. Titus Gunze - High Court (DSM Registry) Civil Revision No. 132/2004 (unreported), which dealt with a similar situation to the instant matter. In addition to what is submitted above, the applicant is arguing that since 1998 it has undergone some restructuring which will make the decision of The Minister to be unenforceable due to the fact that the changes made cannot absorb again the respondent in his 3 previous post. The applicant has also attacked the decision of the trial court by saying that it acted out of the scope of the matter as it had no jurisdiction to entertain a claim for breach of contract and award damages. In opposing to the application, the respondent supported the decision of the trial court. He submitted that the payment of statutory compensation was exercised by the applicant without prior consultation and free consent from him, as it was forced to him by the applicant. As regards to the award of damages made by the trial court, the respondent submitted that it was in line with sections 27 (2) and 28 (2) of the Security of Employment Act, 1964. To support his assertion he cited the case of Dar es Salaam Water and Sewerage Authority V. Dorah Shemndolwa - High Court (DSM Registry) Civil Appeal No. 163/2001 (unreported). In the rejoinder submissions, the applicant mostly reiterated its earlier submissions. However on the damages awarded by the trial court, it was submitted as decided in the case of Dar es Salaam Water and Sewerage Authority (supra) that "both the employer and employee will be entitled to be heard, and in the process, to adduce evidence so that correct assessment of damages may be made." Basing on that decision, it is the contention of the applicant that the trial court erred in awarding the respondent damages without 4 affording the applicant an opportunity to be heard and without any support of evidence or proper assessment. I have with greatest care read the substance of the application before me and the submissions made by both parties. It is an undisputed fact that the respondent was paid terminal benefits amounting to shs.2,177,128/=. He accepted the money and went away. Five years later he went to court and demanded to enforce the decision of The Minister. Surprisingly, he was successful and on top of that he was awarded damages. His contention now before this court is that he was coerced to take the option of terminal benefits. This assertion to me appears to be an afterthought because he never mentioned this before the trial court. He is completely introducing a new thing. I dismiss this assertion. The act of the respondent of agreeing to be paid his terminal benefits removed him from the provisions of section 26 of The Security of Employment Act. He himself agreed to be treated under section 40 A (5) of the said Act. The appellant "cannot eat his cake and have it." (See the case of Mengi Mwandu V. TTCL and that of TTCL V. Titus Gunze). The trial court therefore fell in error to enforce reinstatement of the respondent. The respondent having received his terminal benefits became the end of the matter as far as his employment with the applicant was concerned. 5 The respondent in his reply submissions made reference to section 27 (2) and 28 (2) of The Security of Employment Act. It is his belief that the award made by the trial court as damages for the failure of the applicant to carry out the decision of The Minister was justifiable. In the first place I have to say that there is no evidence to show that the applicant failed to comply with the order of The Minister. The real fact is that the order could not be implemented after the respondent had opted to take his terminal benefits in lieu of reinstatement. Also, the trial court condemned the applicant unheard before arriving at the decision to award the respondent damages. As per the decision in the case of Dar es Salaam Water and Sewerage Authority (supra), "both the applicant and the respondent were entitled to be heard, and in the process, to adduce evidence, so that a correct assessment of damages could be made." The trial court in the instant matter failed to observe these directions. For that matter, it erred in awarding the respondent damages and other payment without affording the applicant an opportunity to be heard and without any support of evidence of proper assessment. In total, the ruling of the trial court dated 26/7/2005 cannot be allowed to stand. I quash and set it aside with costs. 29/5/2007 6 Right of appeal explained. 4L mz JUDGE 29/5/2007