Bishop Church of Nazarene vs Principal Labour Officer On Behalf of J. Nshiga and 3 Others (Misc Civil Appeal No. 14 of 1999) [1999] TZHC 295 (8 December 1999)

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IN THE·. HIQH COURr .OF TfJiZANIA 
AT MBEYA 
MISC• CIVIL _,\PPE.;L NO_. .1.4_ OF 1999 
! . • • 
. ·THE BISHOP - CHURCH OF NAZARENE •• o •••• ~ ••• ~. • J\PP.Ell.;\NT 
Versus 
THE PRINCIP,\I,.. _L:~BOun OFF'XCER ., i , . 
On Behalf of J. Nshi,;a & 3 Others •• • •.,.. • • • RESPONDENT 
JUOOMENT· . 
WAMBURA, PR-1. (E.J.): 
This Judgement ari~es. fr,)m an appeal of tbe · deeioion of the Distri~t 
(?ottt'.t. in rui :Employment_. Cause No. 8/9~ whiyl;\ · rules that the a1~-pellants pny 
four workers a total of Tshs.3,1~_,582~50 as their:terminal benefits. 
The appellants feel aggrieved 'by this rulini; helause, to put· in o. nut shell, 
the· said school ~~ .owned ·by rw. 4 and. not the apriellants who to0k over 
the sehool on 17/l/9, •. That up to then it wae, not' re~etere1. and th~t 
.. . .... : ' . . :,. .r . \·.i.!° . 
they .. were not p/:II'ties to. the e:-,1ployme~t contr~.ct.s as :seen in &:bs. P. cf - P?>. 
. . •.: .. - ... ·. :. :.- . 
It was Mr. Mwal<olo's submission theref0re.;th11t since the i=;cbool•·: 
. . . .... --~ ,. : ... ~ . . - 
had not heen rertistered the contracts wcr,e frn.u•1:ulen:tly ·entered into 
and acc6r1in~ly .une_nforc~b_le ~?O~ir1g. t~e -~ase qf :gr E,rn'l\,.,;\'FRICA WD..:. ll. 
THEM INDUSTR~ {!ND .. m:STRIBlY;roR§ :\GEN~Y .LTD. ( 19~). ~ 256 · which beld 
that arienforceable contract is ,void:md_ ~bus prayed thQt tbe appe~l be 
a1i6wed \dth costs. 
_ In their, reply the_ re~pondents ursed that the school belonse~l to thcr 
church as the Hea&n~ster was. employed by the church·nnd actually did 
· owner 
not wait tl:le whole . ~. que~tion as to . who wn.s the · . tO" be diseussad 
· including that of the school re1".;istration. They tll'_gUed that frcr:1 the 
beginning the school belon½ed to the church and thats why they took 
it forcefully from PIJ.4 o.s was stated in the affid<'l.vit of KDmonrsa. They 
thus·prayed t::i have the appeal dismissed with costs. 
Replyin1 to this Mr. Mwalcolo arguod that the ownership of the school 
is crucial in a~le to reach a fair decision and that what Mr. Ka!non~a 
stated in bis affirlavit is that they toQk over the school i.n July 
while the ·agreements were signed in May and that P 
1 
;J.4 admitted 
to have·refused to ·h:.md over the scbo:>l ancl so the appellants c::m;l.d·not 
. . owners 
be eai<l to be -0f the school before 17.5.1995. Th~t since there was 
no evi 1 !ence to prove that the scho )1 w,_:i.s in ex{stence then the said claims 
are a nullity and prcyed th~t th~ appe:il be allowed with costB • 
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2 
Having gone throur~h this 
the procee~in~s of·the lower 
facts are not in ~ctl.~_ute:- 
reasons for· and_ ar;ainst the appeo.l, and 
'.. Can·-. · 
court• T r.: _briefly say tha.t the following 
1. Th.':'.t the said churcb.:our.::ht a huilding owned hy PW.4 one 
Davit Kameta but left the· bu,ildin:,: to be used. :hy him •. _ 
2. _That ap!:lrt from running n. Secretfu:.°ia1 ··cfo11e;~e the said Davit 
... 
K3I!1et11 (PW .4) also opened up a Second'.ll'y School: which wns 
soinehcw b~inr; .51,on.sored by the szj._d church sonetii:ie ih ·1-994 • 
. . 
That PW.L~ employed the e,aid reff~,ondant·s ~s his employees 
',• . . 
to run the said schorJl' •. They si_ijned contracts on 1.5.95 
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o.fter _he permit,ted the Headna-ster; to do_ so as evidenced in 
. :", .. , -~.:· 
Exhs.-P.1 ~iP.3. '• ·· ...... 
That it was ·when he w::mted to ror;ist~r the s.~id sch:,ol in"• .. 
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I 
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the neu':le of tl:19 church, that the Regional Z-1ucational Officer (RID) 
informed. th_e_ chci-ch of P\v.4s intention which they objected 
·t.o. 
5. - I:r:i r~solving this problem of re~if:trr.tti~n:i.£ when it was 
2.greed th;;i.t the said schonl be h'.mded over to the church. 
6. That_ PW:4- on receiving a letter directing. hio to do_ so do.ted 
C/6/95 (Ex:h. P4) tie _refused to do so vide a lctt,cr _da.te<l 
9/6/95 (Exh. Po5) beca~se the school was his. 
7. -That on 17/7/95 the church forcefully.took over· t~e school 
and the res;,,mdents were Aisr.1issed although ·one. er.ipl9yee was 
allowed to continue with his emrloyment. 
8. 1:\s the said -errployees were not paid their terminal benefits 
they complained arl'l finally this case was filed in, court as 
the church refused to pay th,~m as it is sayin,,; in this· appeal 
todate. 
N9w fro:n the said. facts the school was owned 1)y PW. 4 David Kon1eta 
"-~.., 1gq4 to 17.5.95 when. the church focefully took it over fro:;: him. 
I am o:t' the view th:it hD.d the handing over been _erroneously done then 
even the said employees would he.we been handed over accordin~ly and 
would have been taken over by the new ad11inistration. However, this 
'·' was n0t the case :md so the new adr:-1,inistr.'ltion had no reason of 
conti nuing to empl,)yee them if t,hey ,J.id not wish to do so and cannot 
be forced to do so. What is importo.nt here is who is supposed. to 
pay·thera their teroinal benefits after their contracts were unerrorneously 
•.. Just 
breached ·· . wi thiil_ two weeks after signing the contracts • 
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It is in evidence that the contracts wore signed by them on 
beh<>lf of the said PW.4 who admits to have been the owner of the scho0l 
\ ~- . ' . 
by then. He does not say ho- did so. on hehnlf of .the church 'a.'1d actunlly 
refused to hnnd over the scho,::l as it was his. In reality the buildings 
•. 
belonged to the church a.>1d the school ho.d n:lt yet been registerec.. The· 
legality of this -ancl its effect to .the said emp~ees is obvious,. But 
the qucstfon is, -:lid the ·er:irloyces knew th.~t the sd1ool was not ·rc.:;ist?red? 
Or, did they enter into such. contracts while lrnowin~ that the school 
had not been registered? This hns not been hrought up in evfd:encc 
pro.,erly :1;1? discussing it l:+oro I think will·be goingf:J'frotn the 
purpose of this c:i.:~p~'!;U whose issue is whether or ·not the· appellmlt church 
is responsible, a_ni-1 duty bound to pay the terminal befits of the so.id 
em·ployees, which. I. ~11 proceed to -'.lo. 
fhvin~ Gone throur,ih the said facts r)f th(: c::,_se it is ohvious thr-tt 
the contract 'of er:iployr.ient was between the ree-pondents and 0ne Davit 
Kar1eta, a thin~_wbich he personally accepts. He does not say whnt the 
nim 
contract betweenL.:md the church wc1s. ..n1 we know he refuse cl to have 
the church to h,:we anythinc; to do with the school thus refused to hcmd 
over the school. In the circu.':-lst:mces then I :)elieve th.'lt the church 
cannot be responsfl,le to pay the employees their terminal benefits if 
it was not a p~"..rty to their contract• However, it was the duty of the 
church to call upon the employees ,c.irld talk with them of their fate after 
taking over the school, a thin~ w!Jich was not dnne. This omissbn 
though rl.oes not make them liable to anythin~ more because there was 
no proper handing over. 
I would thus end the da.y by saying the proper person to be sued 
or ordered to pay them if anythinr; at all was Davit Ka,11eta and not the 
church, as David has stetted nowhere that he employeed them as an :.v~ent 
of the churcho Since the contro.cte were done in his personal capacity 
then he is the om:: who is supposed to honour them. I lGave it to the 
parties to finct out the legality of their contr::i.cts and sue one Diwi t 
Kamet-~ if they so wish. The appeal is :tllowcd with costs as tho church 
was not a party to the contract ru1,l was thus not bound by the said 
contract nor liability to the s:1rne. 
It is so ordered. 
oooo•/4 
s.£1.N. Wambura 
PRM (E.J.) 
7/12/1999

P-::irtias: 
·.tr 
. Fo;r appellant - Mwa ... 1-wlo - !',bscnt. 
For J:iespondcmt - Konwela - Present. 
, Parties pr~$~nt in person. 
··' · B "C· " ·: .. /'· .• oeme •. . 
Court: 
:..:.i f :J 
Jud::,;cMcnt deliverer:l in open Chn.rn 
1 
)ers this 8th cby of Dece □ ber, 
1999 at the presence of the atove parties: q...i-i1 0.bscnce of 
Mr. Mwakolo, ,\dvocatc for the appeilo.nts. Ri~ht of ,'ipo.:il 
explo.ined nccordin::slY. 
PRM (E.J o) 
8.1/12/1999.