The appellant National Bank of Commerce has, through the services of Mr Lyimo learned Counsel filed this appeal to challenge the judgment delivered by Chillonji PRM on 10 January 1996. The trial D court after hearing the matter had declared that the summary dismissal imposed by the appellant or the respondent was wrongful and of no effect, and that the respondent was entitled to arrears of salary and other emoluments from September 1991 to 15 June 1992 and full wages from 15 June 1992 until date of re-engagement. The appellant was also condemned to pay costs. The appellants E were aggrieved hence this appeal.
The challenge the decision, the appellant filed four grounds:
1. That the Honourable Resident Magistrate erred in law and facts in not satisfying himself with the jurisdiction of the Court before hearing the suit. F
2. That the Honourable Magistrate erred in law and in facts in finding that the respondent was not negligent in causing the appellant to suffer loss in the sum of Tsh 3,104,817/45. G
3. That the honourable trial magistrate erred in law and facts in holding that the respondent was wrongfully dismissed.
4. That the honourable trial court erred in law and facts in not weighing the evidence of both parties and decide the suit in the balance of probabilities. H
Parties were ordered to file written submissions and they did so timely. Dr Mapunda appeared for the respondent.
In their first ground, the appellants submitted that the trial court lacked jurisdiction to hear the I matter. They contended that the respondent having being found to belong to the management cadre
A of the appellant, could only challenge his termination at the Industrial Court, in terms of s 4 of Act 41 of 1967, as amended. The appellants contend that the respondent was wrong to file his suit in the ordinary Courts. The appellants are also saying that it is upon the trial court to satisfy itself that it B is seized with jurisdiction to try a matter. In the alternative the appellant submitted that the trial court had no jurisdiction to hear the matter as no dispute was raised by the respondent concerning the breach of conditions of contracts.
C As regards grounds two, three and four, the appellants argued them together. In their submission the appellants contend that the respondent acted negligently when he stopped PW3 Anthony Mhoja from taking the disputed cheque to the drawer for verification and instead directed PW3 to the office of the branch accountant who was not conversant with fraud and investigation. The appellants insist D that the respondent was negligent in that he stopped his subordinate PW3 from discharging his duties, that he misdirected PW3 to take the disputed cheque to a person not responsible with investigation that he never bothered to make a follow up in the matter until the money was finally paid out to a wrong person, thus occasioning loss to the appellants. They submit therefore that the E respondent's dismissal was proper.
The respondent on his part has responded in the following manner.
F On the issue of jurisdiction, the respondent submitted that the appellants contention that the trial court lacked jurisdiction cannot be entertained at this appellate stage. That this matter was never raised during trial and that in terms of s 79 of the Civil Procedure Code 1966 objections as to jurisdiction must be taken in the trial court at the earliest opportunity before settlement of issues. I am minded to agree with the respondent on this issue. Section 19 of the Civil Procedure Code 1966 G is very clear, it reads;
`No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the country first instance at the earliest possible opportunity and in all cases where issues are settled H at or before such settlement, and unless there has been a consequent failure a justice.'
This suit was filed on 13 July 1992. Perusal of the Court record does not show that any objection was raised by the appellant as to the trial court's jurisdiction. Judgment was delivered on 10 I January 1996. I think it is highly improper for the appellant to raise the issue
of jurisdiction at this stage. The appellant's contention flies in the face of the provision of s 19 sited A above and at best it is an after thought. The appellant has submitted that it is for the trial court to satisfy itself that it has jurisdiction to try a matter. With respect I hold contrary views. It is for the party raising the issue to address the Court and the latter to rule whether or not it has jurisdiction. B
On the premises I am satisfied that this ground of appeal lacks merit and I dismiss it without further ado.
On grounds two, three and four the respondent has submitted that it was the Branch Accountant who verified the cheque and credit slip. That it was this Branch Accountant who authorised payment after being satisfied that the cheque was in order. Respondent denied being negligent or C responsible for the loss.
On this issue I have had time to revisit the evidence or record. On the fateful day, the plaintiff/respondent happened to be visiting the city branch National Bank of Commerce where he met the witness PW3 Anthony Muhoja arguing with a customer over a cheque. PW3 was D suspicious and had wanted the customer to go and verify it with the drawer. The respondent then referred the two to the Branch Accountant one Yassin who, it would appear, ultimately cleared the cheque and authorised that it be paid out. Now the issue here is, who between the two occasioned loss to the appellant. Is it the respondent or the Branch Accountant? Mark you the appellant never E called this Yassin to testify. Can we say that what the respondent did was not reasonable in the circumstances. I think not. If there was any investigation to be done in that direction that would definitely come from Yassin but against this Yassin was not called. We do not know what happened but what is clear is that the cheque was cleared by Yassin and payment authorised. In fact even F DW1 told the Court that he did not know why the respondent was dismissed and that he was not responsible for the loss of the money. The appellant in their submission are imputing ill motive on the part of the respondent. Having gone through the evidence tendered by all witnesses including G DW1, this Court does not share that conclusion. There is no sufficient evidence on record to hold the respondent negligent, in what he did by referring both DW3 Anthony Muhoja and the customer to the Branch Accountant. H
In the final event this Court upholds the decision of the trial court and dismiss the appeal with costs. I