Civil Reference No. 7 of 2004
Stella Temu, a lawyer employed by the Ministry of Finance (MOF) in the taxation department, was moved to the newly operational Tanzania Revenue Authority (TRA) in 1996 when TRA took over tax collection. TRA's letter, Exh. P1, informed her that she was being 'employed' by TRA effective 1 July 1996 but would be on probation for one year, after which she would be confirmed if her performance and conduct were satisfactory. Stella accepted 'on the terms explained and others to be decided by the Board of Directors' (Exh. P3). On 16 June 1997, TRA wrote to her (Exh. P5) stating that, following evaluation during probation, she would not be confirmed in employment and that, per Government directives, she was being returned to MOF effective 1 July 1997, with instructions to consult the Permanent Secretary for further guidance. Stella did not report back to MOF; over a year later, on 6 January 1999, she sued TRA alleging wrongful termination, lack of a hearing, lack of a competent authority for the decision, defamation arising from the termination letter, and failure to give reasons. The High Court (Rutakangwa, J.) found termination by a competent authority but held that she was denied a hearing and reasons; nonetheless, relying on evidence that she would not have been confirmed regardless, it declined defamation damages but awarded Shs. 2,000,000 general damages for 'wrongful termination of her probationary employment.' Stella appealed.
(1) Whether Stella's movement from MOF to TRA constituted secondment (with her remaining an MOF employee) or a full transfer/new employment with TRA, and correspondingly whether Exh. P5 amounted to termination of employment or merely a decision not to confirm her at the end of a secondment/probation period. (2) Whether the trial judge erred in not annulling the 'termination' and ordering reinstatement, and in granting reliefs not properly available. (3) Whether the trial judge erred by suo motu raising and deciding the issue of defamation without it having been framed as an issue or fully argued. (4) Whether Stella, as a probationer, was entitled to a hearing and to reasons before the decision not to confirm her, and whether damages were properly awardable on that basis. (5) Whether the appellant was subjected to double jeopardy by being terminated both by TRA and, effectively, by the court's judgment.
For the appellant (Mr. Malamsha): The trial judge erred by not annulling the termination and ordering reinstatement despite finding that she had not been given a hearing or reasons; the judge improperly framed new issues (notably defamation) suo motu at judgment stage without evidence or submissions on the point, thereby denying Stella an opportunity to rebut; the judge granted reliefs not specifically prayed for; and the outcome subjected Stella to a form of double jeopardy—terminated by TRA and again, in effect, by the court's order. When questioned about MOF's promotion of Stella to Finance Management Officer Grade I after she moved to TRA, counsel could only suggest the promotion process was already 'in the pipeline' before her transfer. For the respondent (Mr. Rugaiya): TRA argued, relying on Establishment Circular No. 7 of 1995, that Stella's movement to TRA was a 'secondment' (not a direct/departmental transfer or new permanent employment), meaning she remained legally an MOF employee throughout the one-year probation, and that Exh. P5 was merely a decision declining to confirm her within TRA (after which she was to revert to MOF) rather than a termination of employment. Since there was no termination, there could be no reinstatement, and the double jeopardy ground was misconceived. On defamation, although not framed as a specific issue, the pleadings and Stella's own testimony raised the matter, so the trial judge was entitled and indeed obliged to decide it.
The Court of Appeal, exercising its power under Rule 34(1) to re-appraise the evidence, found that Stella's movement to TRA was a 'secondment' under paragraph 3 of Establishment Circular No. 7 of 1995, not a direct departmental transfer under paragraph 11, because the initiative came from TRA (not the Government) and her engagement was expressly subject to a one-year probation—features consistent only with secondment. This was corroborated by a letter from the Central Establishment (Exh. D3) describing the standard secondment practice for such transfers, and by the fact that MOF promoted Stella to a higher grade in August 1996 while she was ostensibly working at TRA, indicating she remained an MOF employee. Consequently, Exh. P5 did not terminate her employment; it merely declined to confirm her secondment to TRA and directed her back to MOF. Grounds one and three (failure to order reinstatement/improper reliefs) were dismissed, as there was no termination to reverse. Ground four (double jeopardy) was likewise dismissed as misconceived. On ground two, the Court held the trial judge was entitled to address defamation despite it not being formally framed as an issue, since it was pleaded and testified to by Stella herself; a court must decide matters it permits to be argued even if not strictly pleaded as issues. Exercising its revisional power under section 4(2) of the Appellate Jurisdiction Act, 1979, the Court examined the trial judge's findings that Stella was entitled to a hearing and reasons before non-confirmation. Distinguishing the authorities relied on below (O'Rourke v. Miller and Chief Constable of North Wales Police v. Evans), which involved statutory schemes mandating specific grounds and procedures for dismissing probationers, the Court held that no such statutory 'checklist' governed Stella's case, and in any event she was not a TRA employee but an MOF employee on secondment. The Court held that probation is 'a practical interview' and that the right to a hearing and to reasons does not extend to a decision not to confirm a probationer/secondee. Accordingly, there was no right to a hearing or reasons, and the trial judge's award of Shs. 2,000,000 general damages for 'wrongful termination of her probationary employment' was quashed. The appeal was otherwise dismissed, with observations that TRA should have used Circular terminology in its letters to avoid the dispute, and that Stella ought to have reported back to MOF.
The judgment clarifies the legal distinction under Tanzanian public service practice between 'secondment,' 'attachment,' and 'direct/departmental transfer' as defined in Establishment Circular No. 7 of 1995, and establishes that an employee seconded to a parastatal/authority for a probationary period remains, in law, an employee of the parent ministry until confirmed by the receiving body. It holds that a decision not to confirm a seconded probationer is not a 'termination of employment' entitling the individual to reinstatement, a hearing, or reasons, analogizing probation to 'a practical interview' rather than a stage attracting full natural justice protections absent a specific statutory framework mandating such protections (as existed in the police regulation cases considered, which were distinguished). The decision also reaffirms the procedural principle that a trial court may and should decide an issue (such as defamation) that has been pleaded and testified to, even if not formally framed as an issue for trial, and demonstrates the Court of Appeal's use of its revisional powers under section 4(2) of the Appellate Jurisdiction Act to correct findings on matters not directly appealed or cross-appealed. Practically, it underscores the importance of precise and Circular-consistent terminology in employment/secondment letters issued by government agencies to avoid future disputes over employment status.
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