Civil Reference No. 7 of 2004
The appellant, Stella Temu, a lawyer employed by the Ministry of Finance (MOF) in its taxation department, was moved to the newly operational Tanzania Revenue Authority (TRA) in 1996 via a letter (Exh. P1) stating she was being 'employed afresh' by TRA subject to a one-year probationary period, after which she would be confirmed if her performance and conduct met TRA's requirements. Stella accepted these terms (Exh. P3). On 16 June 1997, TRA issued a letter (Exh. P5) informing her that, based on the probationary assessment, she would not be confirmed and was being returned to MOF effective 1 July 1997, directing her to consult the Permanent Secretary for further instructions. Stella did not report back to MOF. Over a year later, in January 1999, she sued TRA alleging wrongful termination, lack of a hearing, termination by an incompetent authority, defamation arising from the letter, and failure to give reasons. The High Court (Rutakangwa, J.) found her termination was by a competent authority but that she was denied a hearing and reasons, yet held she would not have been confirmed regardless due to her poor attitude (per evidence of her supervisor), declined to award damages for defamation, but awarded Tshs 2,000,000 as general damages for 'wrongful termination of her probationary employment.' Stella appealed.
1. Whether Stella was terminated from employment with TRA or merely not confirmed following secondment, remaining an MOF employee. 2. Whether the trial judge erred in not ordering reinstatement and in granting reliefs not sought. 3. Whether the trial judge erred by suo motu framing and deciding the issue of defamation without proper evidence or submissions. 4. Whether Stella was subjected to double jeopardy by being terminated by TRA and then again, in effect, by the court's order. 5. Whether Stella, as a probationary secondee, was entitled to a hearing and to reasons before non-confirmation, and whether damages were properly awarded on that basis.
For the Appellant (Mr. Malamsha): Argued that the trial judge erred by not annulling the termination and ordering reinstatement; that the judge improperly framed new issues (including defamation) suo motu at judgment stage without giving her the opportunity to lead rebuttal evidence; that the reliefs granted (general damages for wrongful termination of probation) were not properly prayed for; and that treating the matter as both a wrongful termination by TRA and then subjecting her to a further adverse court characterization amounted to double jeopardy. On the promotion letter issue, counsel merely asserted the promotion process was 'in the pipeline' before her transfer, without a firmer explanation. For the Respondent (Mr. Rugaiya): Argued that Stella was never terminated because she remained an employee of MOF throughout, having been merely seconded to TRA under Establishment Circular No. 7 of 1995; consequently there could be no termination to annul or reinstate. He referred the Court to the Circular's provisions on secondment (requiring probation) versus direct departmental transfer (no probation), demonstrating Stella fell into the former category. He conceded that although defamation was not framed as an issue at trial, it was raised in the pleadings and in Stella's own testimony, and it was a mutual failure of both advocates not to frame it as an issue; nonetheless the court was entitled and obliged to address it. He submitted that ground four (double jeopardy) was misconceived since there was no termination in the first place.
The Court of Appeal, exercising its power under Rule 34(1) to re-appraise the evidence, found that Stella was never an employee of TRA but remained an employee of MOF, having been merely seconded to TRA under Establishment Circular No. 7 of 1995 for a one-year probationary period. This was confirmed by the absence of the term 'uhamisho wa moja kwa moja' (direct transfer) in her engagement documents, by the fact that MOF promoted her during her secondment (Exh. P2), and by a later Central Establishment letter (Exh. D3) explaining the secondment practice for staff moved to new government agencies. Consequently, Exh. P5 did not terminate her employment but merely declined to confirm her engagement with TRA, requiring her to return to MOF. Grounds one and three (failure to order reinstatement, granting unclaimed reliefs) were dismissed since there was no termination to reinstate from. Ground four (double jeopardy) was dismissed as misconceived for the same reason. On ground two, the Court held the trial judge was entitled and indeed obliged to address defamation despite it not being a framed issue, since it was pleaded and testified to by Stella herself; this ground was dismissed. Invoking its revisional power under section 4(2) of the Appellate Jurisdiction Act, 1979 (as amended), the Court revisited the trial judge's findings that Stella was entitled to a hearing and to reasons before non-confirmation. Distinguishing the authorities relied upon by the trial judge (which involved statutory dismissal criteria for police probationers), the Court held that, absent a statutory 'checklist' for confirmation and given that Stella was a probationary secondee rather than a TRA employee, there was no right to a hearing or to reasons — probation being akin to 'a practical interview.' Accordingly, the Court quashed the trial judge's award of Tshs 2,000,000 general damages, which had been predicated on breach of the audi alteram partem rule and failure to give reasons — findings the Court of Appeal rejected. The appeal was dismissed with costs, with the Court noting that TRA should have used clearer terminology referencing the Establishment Circular, and that Stella ought to have reported back to MOF as directed rather than absconding.
This judgment clarifies the distinction under Tanzanian public service practice between 'secondment' (kuazimwa) and 'direct departmental transfer' (uhamisho wa moja kwa moja) when government employees are moved to newly created government agencies or parastatals, as governed by Establishment Circular No. 7 of 1995. It establishes that where an employee is seconded (rather than directly transferred) and undergoes statutory probation, non-confirmation at the end of probation does not constitute 'termination' of employment where the employee remains formally attached to the parent ministry and is simply returned there. The case also affirms that a probationary secondee lacks an entitlement to a hearing or to reasons for non-confirmation absent a specific statutory framework mandating such safeguards, distinguishing this scenario from cases involving dismissal under statutory disciplinary regimes (such as police probationer cases considered in Chief Constable of North Wales Police v. Evans). Procedurally, the case confirms that appellate courts may exercise revisional powers under section 4(2) of the Appellate Jurisdiction Act to revisit findings not directly appealed nor cross-appealed where necessary to properly dispose of the matter, and that trial courts may and should determine issues (such as defamation) that were pleaded and testified to, even if not formally framed as issues at trial.
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