The Permanent Secretary (Establishments)

The Attorney General appellants v. Hilal Hamed Rashid and 4 Ors.

Court of Appeal (Coram: Ramadhani, Mroso; and Nsekela, JJ.A): October 4,
2004
Civil Appeal No. 64 C/F No. 66 of 2002
 
Constitutional Law- power-President- removal of officer- Article 36(2) of Constitution-
power subject to Constitution or any other relevant law-police officers-power subject to
Police Force and Prisons Service Commissions Act- phrase “retire in public interest” not
provided for- retiring police officers in public interest illegal
 
Damages-wrongful retirement- considerations-whether statutory salaries to the date of
compulsory retirement recoverable
 
The respondents were very senior police officers whose services were terminated abruptly
by identical letters dated May 6, 1996, from the first appellant to every one of them
informing them that the President had terminated their services retroactively from May 4,
1996.  the letters reached the respondents after the news of their termination had hit the
headlines of some local newspapers, notably, the Daily News, Nipashe, and Mtanzania. 
The respondents claimed that their premature retirement was illegal and invalid. 
Consequently, the respondents claimed payment of salaries and all dues owing to them
from the date of premature retirement to the time of compulsory retirement age of each
of them, general damages to the tune of shs. 300,000,000/=for each and interest from
the date of judgment until the date of payment in full.  The learned trial Judge (Kyando
J.), found for the respondents holding that the Civil Service Act, 1989, did not apply to
members of the Police Force as the Police Force and Prisons Service Commission Act, 1990
that did not contain the phrase “retirement in public interest”, governed them.
 
The trial Judge further found that their premature retirement was illegal and void.  He
awarded damages of shs. 70,000,000/= to each of them for wrongful termination of
employment with interest at court rate from the date of judgment until payment in full.
 
The learned Judge considered four matters in making the award for damages.  First of all,
he considered the publicity that surrounded the retirement of the respondent.  Secondly,
he considered that “retirement in public interest in this country carries a very dad stigma
on the part of the retiree.   Thirdly, he accepted the evidence of the respondents that their
families received the news “with shock and consternation plus anguish”.  Lastly, he
considered that the respondents lost their jobs.
 
However he held that they were not entitled to any payment from the date of illegal
retirement to their respective dates of compulsory retirement.  
The learned Judge also dismissed another claim based on the Police Force Regulations,
1995, for respondents 1 and 2 for additional superannuating benefits due to officers of the
rank of Commissioner of Police and above.
 
Held:
1.  The President terminated the services of the respondents in public interest and their
letters of retirement said so.  Article 36(2) Constitution empowers the President to
remove an officer from office.  When the President “retires in public interest”, an
officer, he is acting within the provisions of Article 36(2) of the Constitution. 
2.  However, the powers of the President under the provisions of Article 36(2) are
subject to other provisions of the Constitution or any relevant law.  In this case the
relevant law was the Police Force and Prisons Service Commission Act that does not
contain the phrase “retired in public interest”.
3.  On the principal of generalia specialibus non derogant meaning that general things
do not derogate from special things, the controlling provision in this case was the
Police Force and Prisons Service Commission Act which did not recognize retirement
in public interest.  The respondents were therefore wrongfully retired.
4.   On damages, there was no evidence that the appellants were responsible for the
publications.   However, the last two considerations were weighty enough to
warrant the award of damages.  Moreover, the first and second respondents who
were Commissioners of Police, ought to have got slightly more.  They would be
granted shs. 80,000,000/= each and the damages for the rest would be upheld. 
 5.   For some reason, a person may not be eligible to get salary and other benefits for
the period up to the compulsory retirement age.  So the claim for statutory salaries
to the respondents up to the date of compulsory retirement each would fail.
6.   As the Police Force Regulations 1995 were not in force, the claim by the 1st and 2nd
respondents for superannuating benefits under the above Regulations would fail.
 
Appeal dismissed with costs.  Cross-appeal partly allowed.
 
Chidowu, State Attorney for the appellants
     Dr. Twaib, for the respondents
 
Legislation considered:
1.    Civil Service Act 1989 ss. 2 and 19(3)
2.    Constitution of the United Republic of Tanzania 1977 Article 36(2)
3.    Police Force and Prisons Services Commissions Act No. 8 of 1990 s. 3(2)
4.    Police Force Regulations 1995 (GN 193/95)
 
Cases referred to:
1.    Attorney General v. Saidi Juma Shekimweri Civil Appeal No.11 of 1998
(unreported)
2.    Keke v. Chief Secretary and Clodumar v. Chief Secretary [1987] LRC 979
3.    McClelland B. Northern Ireland General Health Service Board [1957] 2 All ER 129
4.    Shekimweri Jones v. Solomon [1991] LRC 646
5.    Twikasyege Mwaigombe v. Mbeya Regional Trading Co. Ltd. [1988] T.L.R. 237