George M. Kilindu vs CRDB (1996)Ltd and Another (Misc. Civil Cause No. 37 of 1998) [2000] TZHC 84 (7 June 2000)

IN Tl-IB HIGH COUR'r OF 'l'ANZANIA AT DAR ES SAIAAM MIJC. CIVIL CAUSE NO. 37 OF' 1998 GEOHGE M. KILHIDU ••••••••••••••• APPLICAN'l' Versus C.H.D.B. (1996) LTD. Alm 1\JJO'lHGH • • • • • • • • Illi.SPOf-!DJ•:rn 1 .S R U L I H G SUBJECT: Application for Certiorari a.11d Mandamus KATITI, J. One GEORGE 1-i. KILIHDU, the Applicant herein, has consequent upon leave being granted, filed thiG application, for orders of Certiorari and Mandamus, in respect of the Industrial Court 1 s decision, 1·1hich upheld the Respondent's decision, to retrench the Applicant. The antecedents, thr.i t have culminated into t'iis anplic:a:U on, cl0 not cover a vast territory. 'lhey are as follows. fl.s from way back 1992, the applicunt, 'had been employed, by the then 'i'AHiMHi, .RUH/\L D.iVELOPV,Eil'.I' BiiNE, but later by C.R.D.B. (1996) L'rD., hence to be called the Bank, or Second .Respondent as Director of Administration and Hwnan Resources. Consequent upon the restructuring of the said Bank, the applicant's directorate was abolished, and hence the applicant applied for the position of a Director of f.ianagement -:.iervices, interview for which was conducted on 25/8/1993. It stands irnmutely true, that the applicant did not get thio po::;t. However, it inG recommended that the applicant he considered for position of Corporate Secretary, a position that had been applied for, arid for which !. John Mwanyilca, h,3.d 'been interviewed. It is defying challenge, th-2.t on the 1/9/1. 993, the H,maginr:; Director of the 2nd Respondent summoned the aJ)plicant at the Gymkana Club, where the said Managing Director told the Applicant, that when the applicant's recommendation was tabled before the Board of Directors, it was disclosed, that the a:pplicant was rude and arrogant, and that he had not heeded any warnings, and th'lt the same applicant, having hitherto been Director of Administration and Human Resources, should be held responsible whatever the over-employment, in the J')anl,, that led to the reGtructuring exerciGe. The applicant proteoted hiG innocence before the Managline; Director, maintaininr; that the alle~~alions were not true 1 and hence his request to he heard by the 1.:-0ard of D:i.rectorr:;. 'l'iie s,id. 1-;an,2'.in;:: :Jircctor, advioed thr1 t tbe matter be put in 11riting, thr :1:,11lic·mt r;;o did, v:i.Jc his letter J.nnexture J\6. llo1·1ever, the applicant wao :_;crved ,.-,ith :J. retrenchment letter (Annexture 5) sayinr_r, 11 9.ccorclins to the criteria mutuaJ.l;i' ar•:reed upon with O'lTU ;you ,-iill lie affectd by the exercfoe. 'l'he c:!)·ilic·)JJt hm•;evcr 1·rrote to the Board of Directors, through the l-1;:u,aginG i'}fre ctor, Geekin op11orhmity to appear before, and to be heard by the Board of Directorc;. 'l'J:1c Vinnasing

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• 2 - Birector by his letter the applicant was to anpear before it, on the 14/9/1993. He was never heard, but was in.formed that the Board's decision to retrench him, had not changed.) 'l'hese facts in summary, can ably withstand the vigours of credibility tests. But the same culminating into grievance, it led him into filing, a 'I'rade Dispute No.10/1993, challene;ing the 13oard of Directors decicion faultinc; it:- (i) For, suspecting him of misconduct and convictinr; him unheard, a serious transgression of vrinciple of natural justice. (ii) That Mr. Mwanyika attended the Board Meeting, that retrenched hi.n, - imputing bias, again offendin:; a principle of natural justice. For reasons above, the BoCII'd 1 s decision was sought be quashed, to give way, to his reiinstatement, back into his job without, loss of benefits. The Industrial Court, bambarded with researched authorities, and pros and cons submissions, came up with a verdict: 1. 'l'hat the right to be heard arises from : 1 [ accusation, or disciplinary indictment, wliich was not being the case here, it did not arise. 2. That the applicant was not prejudiced, by the presence, of the Managing Director and Mr. Mwanyika, in the Board meeting of 14/9/1993, as there was nothing to decide against the applicant,· and that after all fir. Mwan;\·ika, was already a Corporation Counsel, hence .Secretary of the Bo:rrd, 3. 'l'hat the applicant, was retrenched after failing an interview. I think the above gives the reason for the complaints and the Industrial Courts reasons for rejecting the complaint. I shall hence call the Industrial Court, the Court for case of reference, are immutable, even if the sun comes down. The applicant, has therefore filed tbis ap:nlication for Certiorari, to quash the InduGtrial Court's deciGion, for reasons:

1. 'l'he Industrial Court, erred in holdin,'!, tho.t the right to be heard, where a person is alleged to hcwe done something wrong, but not apply in the ap.nellant 1 s situation.
2. 'l'hat the lnduotrial Court erred, to hold that it was quite in order, :i:'or the Manac;inc; Director, who infor·med the applicant of the dfoci:nlinary offonces uoed by the Board for his retrencLment, and Mr. Mwanyika who was recomr.1ended for the same :oo,sition, to attend the Board neeting, in which the applicant 1 s appeal was to be heard, when the a:::,rJlicnnt was not allm·icd in.

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3. 'l'hat the Court erred, in holdinr, that the a:iplicant failed in the intervie,-,, for the por:ition of Corporate Counsel, when he never applied for it, nor interviewed for. I shall henceforth, and hereunder invest, utmost energy, to see how if the Court was \·,rong in holding that the applic .'.nt, had no ric;ht to pe heard, _as there was no disciplinary wrong preferred against him, but as a result of restructurinr, process or failure of interview. Upon closely examinin~ the record, it does indeed appear, that upon restructurinr, th8 Banks operative DirecClorates v,er·e, reduced from ten to five, and the applicant's Directorate of Administration and Human Resources ,-1as affected, and hence his application for Post of Director of !-lana~ement Services, the intervieu for was scheduled for 25/8/1993. The effect of this restructuring, left the o.:oplicnnt with no substantive office, or status in the Bank. Like anybody else, subject to eligibility had to apply for any of the emerging Directorates. 1his he did. · His application runs as follows: The General Manager, Cooperative and Rural Development Bank, Dar es Salaam. Dear Sir, APPLIC.\TION FOR POSITION OF DIRECTOR OF MANAGEMENT SERVICES I am making reference, to your letter No.CRDB/Glt,/D/\T/11/1/'+8 of 5th August, 1993. I hereby apply for the above mentioned position. Hy curriculm Vitae, is attached herewith. Please do not consider me, for a lower position, if you think, I do not qualify. for the post I have applied for. Yours faithfully, G.M. KILWDU There is no controversy at all, that the applicant did the interview, but never got the poot, hence being i:;erved with a retrenchment letter, that inter alia reads as follows:

Ref. CRDB/PCF/10025/44 Date 30th Auguot, 1993

• 4 - Re : CRDB STAFF RENTRENCI·lMElJT You will recall, that under the present CRDB restructurine pragramme, an agreement was reached, between the Management of the Bank and OTTU, regarding the retrenchment of Staff. According to the criteria mutually agreed upon with O'fi'U, you will be affected by the exercise. This letter is to notify you, with much regret, that you have been retrenched with immediate effect. A cheque of Shs.1,647,205/=, is enclosed to cover all the agreed retrenchment expenses, as detailed in the attached payment voucher • ••........•••••••.......••••..•......••••••••.....••.•.. While regratting that we shall mi:,s your good services in the Banlc, we also hope you will continue beinp; a good amliasnodor of CIWB. Best \·Jishes, Sgd: MANAGING DI.REC'.l'OR There is no escaping from truth, the applicant was retrenched. Here I must confess, that, I find m:yself easily succumbing to the obvi.ous,compelling temptation, to ask what in law, would retrenchment mean, :for the definition for the same, is not even kHown, to the .§ecurity of Efl1E.lo;yri1ent Act Cap. Without folding my hands helplessly, I dutifully feel like seekinr; asoistance elGe--' where. In the case of PIPHAIGll SUGAH MILLS L'l'D. vs PPHAICU GUGA:~ 1-lILLl Vii.ZDOOH UNION fJ9267 SCR 8E, it wan held that retrenchment connotes, in its ordinary acceptance, that the business itself is beiw:; continued, but tlv:,.t a portion of the staff, or the labour M force, is dischar,:,;ed, aG a surplusai::;e. 'I'hat means termination of services of all the workmen, ae a result of closure of the business, cannot therefore he properly described a::; retrenchment - also see §.TATE BANis._OF_rnD~s SH.RI N • .SUNDAHA HOHEY (19'l.0) 2 SCR 160. It may therefore safely be said, and concluded that, retrenchment is the termination

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• 5 - by the employer, o:f the services of an em17loyee, other them o. punisl1ment, inflicted by way of disciplinary action, nor does it include volunt,ry retrenchment or retrenchment on reacbing the a£ie of superanuation, nor upon ill-health. of 'l1he law of the land, approximately on the matter, re,-,id.es in :.iection 6(g) the :Jecurity of Employment Act, 196 1 +, th·Jt :rrovider:; for !;le i-Jorkers Committee at the pl:Jce of 1·1ork, to maJ,e consultationo with the emnloye ·, concerninr; any impedinG redunclnnces, :.md the ap})lication of o.ny joint agree11ent on redundancies, and il.nnexture A5 confirms this, 1r1hen it claims that ;'accordi • to the criteria mutually ar;reed u12,on with O'l'TU, you will be affected by the exerciGe.:r It is buil 1 at this juncture, that I want to-,._ L L a bridge beh1een the retrenchment~mrker s, and the Constitutional provision in Article 22(1 ), "!ver;y__Eerson has the right to wot:k. 11 Significantly on the 11 right to worlc 11 the J;.ndian Apex Court in the case of DELHI THAW5FOHT CORP011A'l1IOH vs DTC MAZDOOR CONGRE:3S AIR 1921 SC 101 P• 17) has thia to obGerve: "The right to life includes, the right to livelihood. The right to livelihood, therefore, cannot hang on to the fancien of individuals in authority. 'U1e empolyment is not a bounty from them, nor can its survival be at their mercy. Income in the foundation of may fundamental rights, and when work is the sole source of income, the riGht to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefin2d premi·:ea and uncertain applications. 'l'h,3.t will be mockery of them." And the Suprenre Court of the United frtntes re13:ards the right to work; as the most precious liberty. This is reflected from the observation of Dauglas J. iE, BARSKY vs BOARD OF llliGEH'l'S (19,54) 347 US 442, that runs as follows: 11 'l'he right to 1-1ork, I had assumed was the most precious liberty that a man possesses. nan has indeed, as much right to work, a.s he has to li,·e, to be free, to own property •••••• •• 'l'o work merJ.ns to eat. It also means to live. For many, it would be better to work in jail t;,r=m to stay idle on the calves." To me, the "right to work" conno& two a:::;pects, -1- for work is already acquired, and interference with the same i 1 f unlawfully intended, the Court '1 would come in, to prohibit the action, or quash the same. -2- If t·iork is sought, than that is seeking a right not already acquired. '.l'hus while the right to work

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• 6 - is incorporated into the Constitution, this Country has not attained the capacity to guarantee it, not because it considers it any the less fundamental to life, It would all the same urge, that any restructuring exf,rcise, should be m:~de to involve as few redundancies as possible. However, it does seem, that the applicant has no open quarrel against the decllsion to/and the restructuring exercise at all; and I can hardly blame him. His • rage! was understandably occasioned by 1,hat the Managing Director l"ir. Lubambe told, him on the 1/9/1993. His evidence as to what transpired at Gymkana Club runs as follows: "Tarehe 1/9/1993 Ag. Managing Director aliniandikia ki-note akinitaka kukutana naye Gymkana Club saa 1¼ (he tendered it.) Nilikutana naye huko Gymkana naye ambako aliniambia kuwa baada ya usaili, nilipendekezwa kuwa baadala ya kuwa DMDA niwe Mkurugenzi Mambo ya Sheria, na kuwa Bwana Mwanyika awe Msaidizi W§l;lll;jU• Alinieleza pia kuwa mapendekezo hayo ya Management kwenye Board ya Wakurugenzi, bodi ikanituumu kuwa kwa sababu nilikuwa Mkurugenzi wa Utawala na kwa sababu nilihusika na hajira, pia kwa sababu kw1a kupunguza wafanyakazi ninastahili kuwa,jibika. Hivyo basi sistahili kuwa Nkurugenzi ,,a Mambo ya Sheria. Aliniambia kuwa Bodi ilielezwa, pia kuwa niliwahi kuonywa mara nyingi kwa ukaidi hivyo sistahili kupata hiyo kazi iliyopcndekezwa na lfanar,ement. Kutokana na tuhuma hizo, basi hodi iliamua kuwa nipunguzwe kazi. 11 I seem to gather from the applicant, that as per communication from the Managing Director, what led to his retrenchment, was the accusation that, -1- he had extravagantly: dnd irresponsibly over employed leading to restructurinr;, fo; which he was to be held responsible, hence retrenchment. -2- Arrogance tobstina.cy at place of work, and without heeding warnings. Obviously by any standard, or stretch of objectivity, the above rationally examined)if they amount to erounds for blame, and determination to the prejudice of the applicant, then the principle of natural justice, had to apply for creative play of fair play, to vindicate the applicant. But did the Managing Director, tell the applicant the truth on the 1/9/1993 after 7.30 p.m. at Gymkana Club? O:n answering this

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• 7 - question I am inclined to answer the same positive though the Court never gave it the weight it deserves. I honestly condidly entertain this answer. First it is clear, that Iv'o:. Rubambe had a discussion with Mr. Kilindu on the matter, and the vehicle for the meeting reads as follows: "George, If you h:we the time let us meet at the Gymkana Club today 1/9/93 at about 7.30 p.m. John Rebambe 1/9/93 11 And following, that meeting in fact next, day the applicant ,,,rote a letter seeking the audiance with the Board of Directors, the receipt of the letter was acknow~.edged, and an appointment made to see the Board of Birectors as it is demonstrated hereunder: "Mr. G.M. Kilindu, P.O. Box 268, Dar es Salaam. Re : R.E'l'lIBHCl·il•Tu.:NT I am in receipt of your letter ~ated ~eptember 2, 1993 on the above subject, which was a response to my letter Ref. No. CRDB/PCF/10025/44 of 30/8/1993. My discussion with you of September 1, 1993 informing you of the Board decision is also relevant. You have requested to be given opportunity to aw.ear before the Board, I will ac9ordin_&ly forward your reguest to the Board of Directors. In the meantime you may continue with the debt-collection exercfoe that had been assigned to you. 11 There cannot be any bonafide doubts at all, that Mr. Rubambe as Managing Director, in seeking appointment for on behalf of the applicant to appear before the Board, not only new the reason why because of the meeting he h2-d with the applicant at the Club, but also from the applicant's letter of 2/9/1993, -the purpose was "to be given opportunity to appear before the Doard to defend PJYSelf against the allegations." It does categorically appear, that on the 13/1/1994, the Board of Directors noted the contents of the applicant's letter, but never gave him opportunity of being heard. And the applicants letter

• 8 - which the Board of Directors noted inter alia sought in (ii) thereof - 11 1 should be given opportunity to appear 11 1 should be given opportunity to appear before the Board to defend myself against the allegations above." From the above, I cannot be wrong to say that the Board o:f Directors knew why the applicant wanted to appear before them and knew also the accusations the applicant wanted to cleanr:;e himself of, and if they did not show any surprise upon noting the contents of the applicants letter and show anxiety to hear about the same from the applicant, anybody rea.sona.bly placed and reasonably directing himself on the matter would have no hurdles in believin:; that what Mr. Rubambe to.Le.! the aoplicant at the club was impecably true, nothine; but the truth. '.l'hat means the Board of Directors already had a biased bend and retrenchment c·1.nnot be the cawe of thiG attitues as the Court though, i,, any case if the very Board of Directors arc the ones 1-1ho rn ·.de allec;ations how can they employ him. It is that we softly land, on the circumstances, when a narty has a right to be heard. 'I'he Court was of the view, that the richt to be heard only arises where there is an accusation or disciplinary action. 'lhc a)plicant I s contend that the Court seriously erred in law. I think v1ith res1Ject that cannot be the case, the area of or zones of the doctrine of natural j-u,stice are not as narrow as the Court wanted to ff limit them. It imposeG a duty on the deciding authority and a beneficiat'y at the same time i.e. duty on the authority to comply with the oame and a right to the victim to receive its protection. In this case the Board of Directors made an administrative affectinc the applicant, when they had made negative remarks th.::tt obviouGly contributed to his loss of employment. 'l'he que,stion fo whether, their decision though administrative it was subject to the principles of natural justice. I seem inevitably swayed to answer the same in the positive. It cannot be denied that over the years, natural justice has ,v01vn into a widely pervasive rule affecting l: 1 rr,e ar,~,.o of adminiGtrative action, and hence it fo beinc; rer.:r;arded as an inevitable and indispensable part of fair play in action, noless desirable in ·1.dminatrative action. I dmll, I hope be allowed e to refer to

• 9 - the case of ·,nsbf.fJdl and P,~J\F/LBF_;RG ( 19Z2) 1 'dL11 524 ip which tile rule of fair play in action in paras 4 47 and 43 was reiterabed as fol.lows: U is fair to hold that subject to certain limitations natural jur.,tice is no-! a broading omnipresence al tbouc;h varying in its play •••••••• after all, adminiGtrative power in a democratic set up is not alle,1ic to fairnes::.;, in action and discretionary executive jtctice cannot digenerate into unilateral injuGtice. i 1 ior i:-, there ground to be fraip;htened of delay, inconvinience a11 ex,:,ense, if natural ju'3tice .s;ainn access. For fairnes-::; itself ir;:; a flexible, prc1.r;matic ami rel3tive concept not as rigid ritualL:tic or sophiscatecl abotraction. It is not a bull in a C1lin.a ,..ihop nor 2, bee in ones bonnet. Its es,3ence is cood consciece in a given situ,-,tion, nothinc more - but nothinr; le:Js. 1 ' This case is not •:Ii th out praQ!J'J.tic influence, nor :1rc we allee;ic to the principles therein. I would therefore .i1ol1.1, th?.t anybody ·-:it:11 ler,al or administrative authority to ,,lf:fect the rights of another or to decide to the prejudice of a person whether .such decision is quasi judicial or •dministrative fair play or principles of n:::ttural justice mud be a,-rDlied. In thi.s case, the Board of Directors having had ner;ative alleGations about the a,:plicant which to all intents purpo:,es would prejudice hiG job o.nd the applic,3.nt having sought their audiance, ".'ince they never took ini tfa.ti ve to clea.neoe hinmelf, and !nvinr; des:nite r.1:ivinr; him meetin.'; appointm0.nt, and h:,viw; him unit in vain, only to be tnlrl they crnnot meet him, transgresGed the principle o/ fair TJJ..'.1.y by givinc; him ouportunity or heing heard even if th,~y ,1ere to decide not to employ him.

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• 10 - In my view, the ri 6 ht to be heard as an aspect of the principle of natural justice is a great humanising principle invest in[; law ,·Ii th fairness nnd fair play to discaurace miscarriar,e of justice. It now er.wily dawns, tho.t the Board of Directors transgreGsed this principle and l hereby :for reason !;hereof declare the decision null and void, and the decision i.s therefore quashed. '.I'he question is therefore whether, this Court should order the reinstaibernent of the applicant. It is trite law, that writ jurisdiction r,oes hand in hand with discretion, whose exercise must not only be not arbitrary, vague and fanciful opininated, but it must be exercised judicially takin~ into account equitous balance of convinience. And a lesson taken from the case of the Judgment of Lord Green in ASSOCD'l'ED PROVINCIAL PICTUill~ HOU~.;Es L'l'D. vs WEDNESBURY COHPORJ\TIOH L19I+7) 2 ALL E.R. 680, shows how discretion has to be applied: 11 It is true the discretion niust be exercised reasonably. What does it mean? . ..... . It is frequently used as a general description of the thinr;s that must not be done. For insto.nce, a person entrusted with a discretion, muGt direct himself properly in law. He must call hio own attention to the matter, which he is bount to consider. He must exclude from his consideratioi, matters Nhich are irrelevant, to the matter that he ha.s to consider... • • • • • • • Similarly, you may have oomething so absurd, that no sensible person

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• 11 - coul<l ever drec1m, th,. 1 t th:·d: it l;y \•lithin 1)01·.'crs of authority••••••••••••• In another .,:,en·:e, it iG taldnc into consider,:i.tion extraneous matters. It fr; so unreasonable, th:1t it mic(-,1; almof:'t bs described as being done in bad faith. In fact, aJ.l these U 1 inr,;s largely fall under one hecul. ' 1 Indeed, there i:,:; no gain sayinr; tll:tt, among otlwr t hingo, l am called upon to exercise discretion, and tritely ,judiciaLl.y. Dut if in f:wour of the applicant, for purposes of reinstatement, I have to ack for ·..i:1ich poet, as after restructuring, the applicant's post was abolished, 0 .ml was not recommended for the one he applied for. Would it mean imposinr, another restructuring to accommodate him? ..:'.nd finally, though not least in importance, we are talking of went on six years ago, an elapse of time, which is not inconsiderable, when adjustment to the restructuring is already at rest, and in the interest workinc; harmony, it would be imprudent to now order reinstatement. All in all, therefore, I would not be d:i.spoGed to apply this Court's discretion in favour of the applicant, thour;h I would recommend monetary compensation. I shall not deal with tl10 issue of bi.as which though obvious, would be superfluous. 'l'he a_nplication is therefore dismir;ed with costs. '.!.'he application if:; pe.rtly allowed i-1iV1 costs. JUJX',:C 7/6/2000 Coram: Mshote, DDR-HC In person - the Applicant Mr. Ngwembe for the Respondents Ruling delivered in Chamber this 7th June, 2000 in the presence of ~ the Applicant and Mr. Ngwembe for the Hespondents. - Xs.(_H::ihO 'i' SJNIOR DEPU'.i.'Y HJ.i:G ,' , d.~

• 12 - I certify tho.t this ir:i a true copy of the original. I