IN THE COURT OF APPEAL FOR EAST AFRICA
AT DAR ES SALAAM
CORAM: (NEWBOLD, P., DE LESTANG, V-P., AND LAW, J.A.)
CIVIL APPEAL NO 5 OF 1968
RAMANLAL HARIBHAI PATEL} …………………..………………… APPELLANT
BENBROS MOTORS TANGANYIKA LIMITED} …………………….RESPONDENT
[Appeal from the judgment and decree of the High Court of Tanzania at Dar es Salaam
(Hamlyn, J.)Dated 14th November, 1967 in Civil Appeal No. 19 of 1967]
18th June, 1968.
The following judgments were read:-
This is a second appeal. The appellant, an employee, filed a plaint on the 2nd November, 1965, in the district court of Dar es Salaam against the respondent, his employer, claiming various sums on the ground that the employer was in breach of the contract of service in refusing to allow the employee to work. A preliminary point was taken on behalf of the employer that the normal courts had no jurisdiction to hear the claim by reason of section 28 of the Security of Employment Act, 1964, (Cap.574) (herein after referred to as the Act).
The resident magistrate held that he had jurisdiction to hear the matter and after hearing the evidence gave judgment for the employee for the full amount of his claims. The employer appealed to the High Court on a number of grounds, but before the appeal was heard on its merits the preliminary point was again agitated. The High Court held that the district court had no jurisdiction to entertain the plaint. From this decision the employee appealed, with leave, to this Court.
The facts, so far as they are relevant to the issue on this appeal, are that on the 25th July, 1964, a report was made against the employee and on the 27th July, whether rightly or wrongly is irrelevant to this appeal, the employee was suspended by the employer pending investigations by the police.
After investigation no action was taken by the police. On the 4th August, 1964, the employer sent for the employee and paid the employee his salary up to the 25th July. The employee thereafter sought to obtain other employment but failed to do so. On the 16th December, 1964, an advocate, on behalf of the employee, wrote claiming the various sums later claimed in the plaint and on the claim being rejected a plaint was filed on the 2nd November, 1965.'The Act was enacted in 1964 but the relevant part was not brought into operation until the 1st May, 1965.The defence, in addition to denying liability, raised the preliminary point to which I have referred. That point failed before the resident magistrate but succeeded before the High Court. Should this appeal be successful and it be held that/the normal courts had jurisdiction to entertain the plaint, the matter will have to be remitted to the High Court for the appeal to be heard on its merits.
The Act, as can be gathered from its title and as is confirmed by its preamble and its provisions, was enacted for the betterment of the conditions of employees. By section 19 no employer shall summarily dismiss any employee save for breaches of the Disciplinary Code, which is setout in a Schedule to the Act and which permits of summary dismissal in certain specified oases. Sections 21 and 22 provide for the action to be taken by an employer where, inter alia, he proposes summarily to dismiss an employee, and section 23 provides that an employee summarily dismissed may refer the matter to a Board. Section 28 then reads as follows:
"Exclusion of the jurisdiction of the courts;
(1)No suit or other civil proceeding (other than proceeding to enforce a decision of the Minister or the Board on a reference under this Part) shall be entertained in any civil court with regard to the summary dismissal or proposed summary dismissal, or a deduction by way of a disciplinary penalty from the wages, of an employee.
(2)In this section, 'civil proceeding' includes a cross suit or counterclaim, any set off and any civil proceeding under Part XI of the Employment Ordinance."
The employer urges that section 28 has taken away the jurisdiction of the courts to entertain claims based on summary dismissal unless the plaint was filed before the 1st May, 1965.The employee urges that section 28 only applies where the summary dismissal takes place on or after 1st May, 1965, and that in any event it does not apply as he was suspended and not summarily dismissed. The employee goes to the extent of saying that the employer never terminated the contract of service, but that the termination took place by the act of the employee in writing the letter of the 16th December, 1964, and that until then the contract of service was suspended and he was entitled to payment of his dues under that contract. If this is so, then the employee, possibly in a true Yuletide spirit, made a present to his employer by releasing him from any liability for payment of salary over the Christmas season.
I am satisfied, however, that the employee, though originally suspended, was summarily dismissed on the 4th August, 1964, when he was called by his employer and paid his salary up to the 25th July. That the employee understood he was so dismissed is shown by his evidence that he then sought other employment .It was submitted that where one party to a contract by his action repudiates the contract, the contract is not rescinded until the other party accepts the repudiation.
This may be so, but in the case of a contract of service an employee who has been summarily dismissed cannot keep the contract of service alive until he chooses, if he ever does so, to accept the termination of the contract. There will be either an actual or implied rescission, which will have effect from such date as is appropriate on the particular facts. In this case the contract was rescinded on 4th August, 1964, when the employee accepted the money paid to him and thereafter sought alternative employment.
Turning now to the main issue on the appeal, that is whether the courts had jurisdiction to entertain the employee's claim, there is no provision in the Act which sets out whether the provisions of section 28 apply only in respect of a summary dismissal which takes place after the commencement of the Act. Section 48 provides that, subject to the exclusion of the jurisdiction of the courts set out in section 28, certain provisions of the Employment Ordinance are to have effect, but this example of legislation by reference, as is usually the case, certainly does not help to clarify the position. It is urged by the employee that section 28 only applies to a summary dismissal which takes place after the 1st May, 1965, the date of the commencement of the Act.
It is urged on the other hand by the employer that the section applies retrospectively to every summary dismissal, no matter when it takes place, in respect of which proceedings are filed in the courts on or after the 1st May, 1965.In the Municipality of Mombasa v. Nyali Limited,_ E.A. 371, at p.374 I said this:-
“Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation the courts are guided by certain rules of construction. One of these rules is that if the legislation affects substantive rights it will not be construed to have retrospective operation unless a Clear intention to that effect is manifested whereas if it affects procedure only, Prima-facie it operates retrospectively unless there is good reason to the contrary. But in the last resort it is the intention behind the legislation which has to be ascertained and a rule of Construction is only one of the factors to which regard must be had in order to ascertain that intention. "
In my view section 28 is clearly a procedural section as it deals with the means of enforcing a right and not with the right itself. On the other hand, it is a section which clearly excludes the jurisdiction of the normal courts of justice and it is a rule of construction that the courts will not construe a legislative provision in such a manner as to exclude the jurisdiction of the courts, save in so far as it is manifest that it is the intention of the legislature so to provide. This section excludes the jurisdiction of the courts "with regard to the summary dismissal or proposed summary dismissal" of an employee. Section 19 of the Act prohibits summary dismissal save for reaches of the Disciplinary Code in circumstances in which summary dismissal is a penalty permitted by that Code.
It would seem, therefore, that the word "summary dismissal" are to be construed with reference to the Disciplinary Cod end as that Code only had effect from the 1st May, 1965, the words "summary dismissal" in section 28 should apply only to summary dismissal taking place after the 1st May, 1965.Thisconstruction is, in my view, confirmed by the requirement that an employer, before he summarily dismisses an employee, must take the action set out in sections 21 and 22, which action
Of course he could not take until the Act came into operation.
Further, under section 23 an employee who is summarily dismissed may refer the matter to the Board within seven days of his summary dismissal; and it is obvious he could not do so before the Act came into operation save in the special case where the summary dismissal took place not more than seven days before that date. To construe section 28 as having retrospective operation would be to deprive an employee wrongly dismissed before the commencement of the Act, but who had not commenced the proceedings before that date, of all remedy save in the very special case where summary dismissal took place within seven days before the commencement of the Act. To construe a provision in an Act which is designed to better the position of an employee in a manner which could impose on him great injustice would, in my view, be to construe that provision in a way completely contrary to, the intention of the legislature.
For these reasons, even though section 28 is a procedural section, in my view it should not be construed to have retrospective operation and should be construed so as to exclude the jurisdiction of the courts only in the case where the summary dismissal takes place on or after the 1st May, 1965.Accordingly I would allow the appeal and set aside the judgment and decree of the High Court and remit the matter to the High Court with a direction to hear the appeal on its merits. I would order that the costs of the appeal to the High Court, both in respect of the hearing up to date and the future hearing on the remission, be in the discretion of the judge hearing the appeal.
As regards the costs of the appeal before us, I would order the respondent to pay those costs. As the other members of the Court agree it is so ordered.
DE LESTANG V-P.
I agree and have nothing to add.
I have had the advantage of reading in draft the judgment prepared by My Lord the President.
I agree with it entirely and cannot usefully add anything.