19850606 TZCA Dar es Salaam

"',; : ., I f r~i>·~tt'·~- i i~{! " '/~--·~..· _, .. ~ IN THI:: COURT OF {\PPEAL -01-' TMIVJUA l /. 't ' .1 ·~ · ·s.o.w,, . AT DAR ES SALAAM lj 'I /: ' ·:. ·.,,,J, I·· i ·w· CIVIL APPEAL NO. 2 'OF 1985 l i ' :·:lt>>- .'.:~ L :.'. . BE'l'WEEN j: .i f1.'.}' : 'l'J10MAS M. M~l,\NJA. APPLICANT :·i !.~~:,"-',:'. •,; ~.•,. AND -~ 11\°'•:: . ,·. • ' • ., .... ,.,1...i;.·•• ·:~ '',)1•'. :,t~ .

1. ROBERT H~ KIMAIUO. • • • • • • • 1ST RESPONDENT 2. NATIONAL BANK OF COM!'ERCE, • • , '2ND RESPONDENT ·• I (Appeal from the Ruling and Decree of tAe High Court of Tanzania at Dar ea Sa1aam) (Mr, Justice o. P, Mapiqano) dated 18th August, 1984 j in -· the High Court Misc~ Civil Cause No.· 5 of . 1984 l ~ '' ~~ .... ··. ', ------ ,. V:~--· . JUDGMENT OF THE COURT f: l,~ -e.,.· The app_licant was· an ~mployee of the respondent bank, ... 1~ ·- ,!tati.0nal Bank of Commerce. ~e applicant was interdicted from JerY,ice ~ . end;~ubsequently . dismiss~d. . The disciplinary actj.on _.,:-... •'"ta]:en agair:ist him was _by the Dar P.g Salaam MatropOl'itan ~ea . 1·: · ~-·-.-.c '-(,:•) • ~a.rd, a committee set up by the. Board of Directors and to which . . ;1;,.: .• , the ~o,ard delegated its powers Qver bank employees in the ''·1•'' Dates· Salaa~ area in terms of ~egulation 7(6) of Regulations •. ' made· under the National Bank c,f Commerce (E.stablishment and ·1 Veat1ng of Assets and Liab1lit1ea) Act 1963, published in G,N. 326 ' On 6.9.68. The appellant was disciplined in that w~y by / the Area Board because, as a bank manager, he was served with ·•· 2 G~rnishee Orders arising,from a civil-acti~n between tw• litigants •. The garnishee •rd,ers relatei.to a sum in excess Of 6 million shillings. -i'.;' '. \' ·.' Instead of retaining t;ho money of the debt•r in the. bank :~~- ·, _or of

paying the said sum i•nto court, the applicant paid it :~ff';: :··. ~.¥:~~t o the decree holde~. 01 When. tha re1pondent Bank aame b · ;~E ;-:-; .:.J~,~~:Lthat actiC.n, it wrote to the 4ppl1ccU1t askinq him for an · :/{ '.· ·i, · · : :;·hp1anation, ,~~ /'.. 1• /(}·I;t/•' • •, • ••.,12 • ..i-=-~'t~r..:it~:jti:i :L~; . . f' ) . f' I / J ~ ~! ',..... ! 2 appellant I was informed of th~ complaint and duly answere d . ,. I r~spondent Bank. The Area B~ard duly considered the matter, I and eventually dismissed the appellant, giving him the·roasnns 1 for the action. The appellant fi led an action in th':\ High Court I f•r an order Of certiorari to bri,ng up and quash the decision 1 of the- Area Board. The appellant submitted to the High Court· I that the Area Bt1ard lacked jurisdiction to take the disciplinary steps .against him. He submitted :only ·the Board of Directors 1 could dO so. The judge rejected that submizsion. The judge also I held ~o.1: the--appellarit had .erred in paying the sum direct to the . , ·. ·:: . : I decree h~lder after he was served with the garnishee orders. ';t'ho j udgo refusod to disturb tho dec1s10.-1 of the Area Board altho~h-he thought the punishme~t inflicted, i.e. :the dismissal V f the appellant from service, was severe. . · application was refused with costs in the High Court. I The appellant~s ! The appellant has appealed;from the High Court

decisiun. I Mr. Maira for the appellant again submitted bef~re us, as he did ~· --··r.;-· ~ at the H~gh court, that/the ,\rea.!Board had no·Jurisdiction to act as .. .it did. This sul:--missi~n is wi th?ut substance. Regulation 7 (6) ·'...~•- t•1 ·.~; ,. of G.N.326 of 6.9.68 state,: I "'!'he Board may delegate any of their powers to .·,. ~ committees conststing, ,f_ .such member::.. or members of their body o~ the Bank as they think fit; any committees s• fnrmed ~"~:ll:..Jn the exercise •f the powers .. so delegated ~ ~ any regulations that may be impo·sed on it q1 the-Seard". , 1· Mr. Mkude for the B.unk subJni tted \:liht the powers of the Board were delegated to t'he Areal Board by Resoiution passed on,, I, I \ 17.4.82~-- ·we are satisfie.d that the Area Board had authority and jurisdic'tion to have acted as HI did. i ' I • We are also satis~ied thatl the Area Board did not b.t'each I' , any regulations in its <,11onduct a~d acti~n; _the appell~. ~ ..•~ .. . ' ~ ' i~formed of t_he compl.a~t ·against l!lim and was given full oppc :lunity· tf ..~ing heard • .. ,' . .. ·.~- ! '·.I l II ....... . ' 3 r \ Mro Maira also complained of the disproportionate nature the punishment.. The trial judge did not interfere with tile action of dismissal.· We do not think that the action of dismissal in the circumstances, could be considered to be so unreasonable ; I the I 'f. as to constitute

unfairness. It was quite cl<.~Ar thatL_ ap'pellant disregarded the garnishee orders in that he acted beyond what he was instructed to do by the court ~4auing them •. We dO not think that in an application for an order of ·certiorari, ·•, we are strictly concerned with the substance and merits I fr.f the evidence adduced. But on ~he face of it we find nothing that ~ffended reasonableness and fair play.

I I I f' /:" ~- -i ·. The appeal has.· no merit and !-i}., dismissed with costs. I ... \ ·.,. '.'. . I i DATED at D~R ES SALMM t:his/ ~~h, day of June, 1985 •. I ,·,. .. ... ·,"1 -<- I. . t .~~ ·.;" ·l'i I l ~~, ·v· A. MUSTAFA , .✓>,.. i ,i !~ / JUSTICE OF APPEAL .•· ~"!':~· I ' 1 ;..~1 R.H. KISANGA

JUSTICE OF APPEAL A. M.A.. OMAR

JUSTICE OF APPEAL I certify that the original •.. I I '

I I I