Project Manager Alcatel Contracting GMBH vs Labour Officer on Behalf of Shaban B. Mtenguzi (Misc. Civil Application No. 19 of 1998) [1998] TZHC 2491 (20 November 1998)

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AT rn?.EYA ' tiL3Co CIVIJ., AJ?FLICATIOi'J i:-JO. 19 OF 1998 (Original fuployment Cause Noo l,. of 1998 of the ::esicl.ent }1a,sisfrate 1 s Court of Vibeya Before: B.J. ·Mandawa. }{esidcnt Magistrate) ' rI'!-IS PrtOtT!C'J; 1-1.dNAGER ) ./l.PPtICAUT \tersus f'Ii'J"B UBOUB C:FFICZR ( on behalf of SHAB.4.N B. l-1T.l.iIGUZI RESPONDENT RULING· This is an applica tio for Revisio·n preferred b~; Mr. MwakiJ.asa., letu-n€!d advocate for the applicant, under Section 79 of the Civil Procedure Code 1966, and Section 1 +lJ(1)(a) a.nd (b) of the Viagistrates 1 Courts Act 19,%. The order for nevision being s0ught is directed against the riuling dated 29.7"98 in }foeya .Resident Viagistrate 1 B Court F:mployment Cause Ho. 4 of 1998. The application is supported by an af:.::i.davit sw•rn by l1vJ2Jdlasa, and it is· resisted by a counter - affidavit sv.rorn by a labour officer, Geefrey U. Jone.s,acting on behalf of the respondent, Shaban B. HtenguzL The resjcondent was em:;iloyed. by the applicant as Senior, !'Jra.ught~man stationed at Mbeyae Ee was served with a ietter (Ext TI1) dated 202.98 which settle his account with the co:npany office iri ~foeya. :.re then pref err eel. the :Sinpl•yment Cause ,._,ich ws.s for, among other claims, pa.yment of one month salary in lieu of notice, and terminal benefits. In the ;',.;;nplo:y-ment Cause !'ir. :!iwakilasa, as here, represented the a:r')p1icant, .and >Ir. Jonas, as here,. appeared on behalf of the respondent. When the Ernployment C:a.u.se came up for hearing Mr. Nwakilasa raised a preliminary objectien to the effect that the termination w-3.s a summary dirnnissal on accmmt of tr.at it was without notice, and that the triaJ. court, . I 2 ~~oooooco/

2 therefor'e, lacked jurisdiction to entertain the ,suit in terms of section 28 of the .Security of Employment Act 1964~ In support of his argument the learned advocate cited and relied on the decision of the Court of Appeal for East Africa in Kitundu Sisal Estate Vo Shio I1shut.i and Others (1970) E.Ao 557; .. --=---.:..-.. .. ·&.•o.- . .-,......,,. ,.,.1..-c- ..... ....__ ...... -.., __ ,..... ..... ,,___ . ---·---__,,,. __ __,,,.......,=--~ Sisal Estate (1971) HCD 430. Mrs Mwakilasa reiterated the same argunient in his affidavit and before me and cited the.same authorities •. Mrs ,Jonas resisted the preliminary objectiono His argument was that the case was not one of summary dismissal on ac,c01mt of that summary dismissal is termination without benefits, but the termination in this case was with benefitso 1fo concluded that I the trial court had jurisdiction to try the caseo Mro Jonas, likewise, reiterated the same argument in his counter~affidavit and before me. The trial court overruled the p:reli.minary objection and ruled that it had jurisdiction to try the caseo That ruling aggri-eved·the applicant, hence this application. The first issue which poses itself is whether the termination o{ the responderi.t' s · employmen_t amounted to summary dismissal in terms of section 28 of Security of Employment Act -1964, hereinafter called the Acto I would answer in the affirmative. The contract of service here was neither t.erminated by • ~otice nor by payment in lieu of-noticeo It could only then have'terminated summarily. The term I summaJ,'y dismissal I i.s net defined by the Ac·t but has been judicially defined. I would refer to the Court of Appeal for Ea.st Africa decision in Kitundu Sisal Esta te 0 s case (Supra). That decision established that dismissal without notice is summary dismissal. In the words of.Nro Justice I.aw, JA (as he then was) at page 558: :,summary dismissal means dismissal without notice, and the plaintiffs cont::mtion that their services were wro'1.gly terminated without. notice can only, in my view, be construed as contention that they were summarily dismissed. 11 The argun1ent that termination without notice but with. benefits is not su.inmary dismissal is 1..msound. •T.he important thing is the cause of ?-ction (summary dismissal) and not the remedy sought or the beneffts' payable: SEE Walter •• e,. 0 ••.• 0 ./ 3

3 (1972) HCD 133e The second and the last issue, therefore, is whether the respondenti s cause of action in the Employment Cause is for summary dismissal without lawful causee Nuch argun1ent centred hereo But I would, again, answer in the affirmativeo The argument which sought.to distinguish the present case from the case of summary dismissal on the ground that only terminal benefits are. being claimed is equally unsound.·: The claims accrue from, and are consequent upon, the summary dismissal, and the trial' court, therefore, in determining the claims, must also, as of necessity, have to.consider whether or not the summary distnissai was lawfulo And more, by claiming a one month's salary in lieu of notice4 the defendant is really contending that the summary termination of his employment was without lawful causeo ·uite obviously, thE;refore, his cause of action is for summary dismissal without lawful cause. Section 28 of the Act says that proceedings relating to such cause of action cannot be entertained by the law courts. They go by the way of concilliation boards and the Hinister responsible for labour affairso In terms of section 79(1) of the Civil Procedure Code 1966, the High Court f has power, in an application for revision; to interfere in the event that a subordinate court has exercised a jurisdiction not vested in it by law. court's , I accordingly allow the application, quash fhe trial , ruling of 29.7.98, and hereby rule that the trial court lacks jurisdiction to entertain RM :Employ- . ment Cause No. 1

• of 1998. In the circumstances of this case, I make no order as to the costs of this application • AT MBEYA.

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20 November 1998. For Applicant: For Respondent: .... . ~ 'r. ·, ,1'...,: . : : r :· r.. '?·~~~: . )· ... ~ r:.-.:;:?·;~;1?··/,.· .:~~;,. Mr. Mwakilas11, ad:v0ca t } .... ,'( .. Mre Jons, lab;u;r:: officer; . ,:,1' • I L