MZUMBE UNIVERSITY

FACULTY OF LAW

NAME OF SUBJECT: LAW OF CONTRACT II

SUBJECT CODE: LAW 226

COURSE: BACHELOR OF LAWS (LL. B 2)

NATURE OF WORK: GROUP ASSIGNMENT

LECTURER: MR. SHAIBU

GROUP NUMBER: 8A

PARTICIPANTS

S/ NAME REGISTRATION NO. SIGNATURE

1 FEBRONIA K. MSEKE 1236041/T.21

2 MARWA B. WAMBURA 1236002/T.21

3 JOHN M. RUKIKO 1236005/T.21

4 CONRADUS D. KAKOKO 1236003/T.21

5 LEAH B. AMOSI 1236269/T.21

6 ANITHA KAMAZIMA BADRU 1236212/T.21

7 IRENE WILLY MWAMBOGOLO 1236036/T.21

8 BRIAN KULWANT DHILLON 1236007/T.21

9 JOHNSON MSUMANJE 1236259/T.21

10 THOMAS B. THOMAS 1236010/T.21

Discuss the significance of the following cases:

i) Said Juma Muslim Shekimweri v Attorney General [1997] TLR 3

ii) Zitto Zuberi Kabwe v President of United Republic of Tanzania, Attorney General & 2

others

iii) Tanzania Posts Corp v Dominic Kalangi Civ. Appeal No. 12/2022
1.0 SAID JUMA MUSLIM SHEKIMWERI v ATTORNEY GENERAL [1997] TLR 3

1.1 FACTS OF THE CASE

In order to challenge the President of the United States' decision to "retire" the applicant, an

immigration officer, in the interest of the public, the applicant requested an order of certiorari. It

showed that the applicant had worked for the Tanzanian government for a number of years

without experiencing any disciplinary action. The candidate had read in a newspaper that he had

been fired for allegedly accepting bribes. The applicant got a letter telling him of his retirement

about two months later.

1.2 ISSUES RAISED

a) Whether the president validly performed any function conferred on him ?

b) Whether the commission or other delegate has validly performed any function ?

1.3 HELD OF THE CASE

The Application was allowed under the following decision made by Samatta, J as follows:-

a) The common law principle that a civil servant was dismissible at pleasure of the president

was not part of the law of Tanzania.

b) The letter informing the applicant of his retirement cited provisions of the law which were

incompatible and this has caused the applicant considerable embarrassment.

c) Standing Order F35 which provided that all appointment were at the pleasure of the

president was invalid as it was in conflict with the provisions of Article 36(2) of the

Constitution of United Republic of Tanzania which states that :-

Article 36 (2) states that, “The President shall have the authority to appoint persons to hold

positions of leadership responsible for formulating policies for department and institution

of the Government, and the Chief Executives who are responsible for supervision of the
 implementation of those department’s and institution policies in the services of the

Government of the United Republic, in this Constitution or in various laws enacted by the

Parliament, which are required to be filled by a appointment made by the President”.

d) The only legislative provision which permitted the compulsory retirement was paragraph (d)

of section 8 of the (Public Service)* Ordinance which would be utilized only for the purpose

of facilitating improvement in the organization of the department to which the civil servant

belonged. It was clear that the applicant’s removal had not been sought on these grounds.

1.4 SIGNIFICANCE OF THE CASE

a) The case has supported understanding the variation of procedure of termination of a civil

servant under Tanzanian laws and English Common Law.

In Tanzanian laws and regulations, Civil servant is dismissed for misconduct only, and

according to Section 19(2) of the Civil Service Act when a public servant is dismissed

the cause must be assigned, the civil servant possess the legal right to show cause on why

he or she should be dismissed and is enforceable in court.

Under English Common Law, the civil servant is under the service of the Crown, that

means he or she is dismissed under the doctrine of ‘service of pleasure’, that whatever

pleases the crown has the force of law, something which is contrary to Tanzania under

Article 36(2) of the Constitution. English Court are not concerned with civil service,

there is law only servant to the crown, it can be dismissible at the pleasure of the King or

Queen.

b) The case has also provided an importance of considering the compatibility of laws to

regulation or other application of any authoritative letter from a decision of an executive

by any authority. In this case, the Principle Secretary, as the body authorized to initiate

on behalf of the President to handle termination or retirement procedure of public

servant, did not consider the letter made to the applicant, and standing order were

incompatible to the provisions referred to. For example:- the wording of the standing

order stating the retirement of the applicant for the sake of Public servant was

incompatible with Section 24 of the Public Service Act which allowed the issue of public

interest to be considered in only termination or removal of public servant and not

retirement.

c) The case has also shed a light on the legal right of the Public servant to seek reason of

removal and what constitute to the public interest he or she is being terminated for.

d) The case has further given an understanding of issues which cant be disregarded by court

when aggrievement is made under the position of an issue to be invalid in the law or null

and void especially when it concerns decision under the light of the law, thus the court

will exercise a supervisory jurisdiction to hear the aggrieved party. However, the

supervisory jurisdiction is not one exceeding the boundaries of separation of power, the

case explained that the court will not take this supervisory position under super-executive

body.

e) The case has also raised a reminder in the matter of the practice of accepting application

made under Order of Certiorari, that the court is not replacing any order or decision

rather just setting aside the given order or decision as not to be used in the detriment of

any individual.
 f) The case has given light to the matter of any authority which act beyond it’s jurisdiction,

in this matter, reference of the Organs of the state which go beyond their power or

jurisdiction, the court will regard them invalid and it will be beyond protection of any

exclusion formula.

g) The case also asserted on the importance of the parties having legal right to access legal

tribunals for settlement of those dispute, before taking further action to ascertain to

courts.

2.0 TANZANIA POSTS CORPORATION v DOMINIC A. KALANGI, CIVIL APPEAL

NO.12 OF 2022

2.1 FACTS OF THE CASE

The respondent who worked for the Tanzania Posts corporation was terminated for his

employment Contract, he transferred to Lindi, where he was terminated for gross and

misconduct, upon seeking to settle for mediation and Arbitration to the (CMA) in Lindi, the

commission viewed his termination to be fair, both procedurally and substantially. Upon

application of revision to the High Court, it was to no avail, although it was ruled that the

defendant pay the respondent compensation amount as to consideration of the amount of

time the respondent had worked under the appellant.

2.2 ISSUES RAISED

a) Whether the CMA has requisite jurisdiction to entertain the labour dispute involving a

public servant

2.3 HELD OF THE CASE

The Application was allowed with the decision from Kente, J.A as follows:-
 a) The respondent, Dominic Kalangi under section 3 of the Public Service Act was indeed a

public servant, and the Appellant, under section 35(5) of the Public Service Act was

indeed a public service organization with responsibility to the general public, thus under

the section 25 (1) (a) and (b) of the Public Servant Act , provides that the public servant

may appeal to the commission any unfair termination against decision of disciplinary

authority, and as section 3 of the Act, “Commission” means “Public Service Commission

established under section 9”.

b) The CMA had indeed had no jurisdiction to entertain any dispute between the appellant

and respondent who is a public servant.

2.4 SIGNIFICANCE OF THE CASE

a) The case has provided an understanding that termination under gross dishonesty and

misconduct in a public institution or organization can effect termination under the Public

Servant Act.

b) The case has furthered given light that the CMA has no jurisdiction to effect any decision

over labour dispute involving public servants.