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Tawanana v Boteti Brigades Development Trust and Another (Civil Appeal No. 41 of 202) [2003] BWCA 6 (1 January 2003)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 41 OF 2002 HIGH COURT CIVIL CASE NO. 243 OF 2000
In the matter between
MOSALAGAE DITSHOTLO TAWANANA
APPELLANT
Versus
BOTETI BRIGADES DEVELOPMENT TRUST l8* RESPONDENT
TIPSON MAHUBE
2ND RESPONDENT
Mr. T. Joina for the appellant
Mr. P. A. Kgalemang for the respondents
JUDGMENT
CORAM:
K. R. A. KORSAH J.A.
C. PLEWMAN J.A. J. Z. MOSOJANE A.J.A.
KORSAH J.A.
This is an appeal against a judgment of the High Court delivered on the 22nd August 2002, declaring that the dismissal of the appellant by the respondent was neither unlawful nor wrongful, and dismissing with
costs the appellant's application for re-instatement.
The appellant instituted proceedings by way of Notice of Motion seeking
the following orders:-
(1) A declaration that the dismissal of the applicant from his employment by the respondent on 11 May 2002 is null and void.
(2)
Directing that the dismissal of the applicant is wrongful, unreasonable and unlawful.
(3)
Directing that the applicant be re-instated to his position as Coordinator of the 1st respondent.
(4)
Directing 1st respondent to pay costs of the application on attorney and own client scale.
(5)
Granting such further and/or alternative relief as the Honourable court deems just and equitable.
The appellant was at all material times employed as Coordinator by the respondent. In that capacity, he was the executive secretary
of the Board of Trustees.
The 1st respondent is a trust registered at the Deeds Registry. The respondent does not deny its existence as a Trust although its registration
number does not appear on the document filed by the appellant.
The 2nd respondent is the Chairman of the Board of Trustees of the respondent.
At the hearing of this matter in the court a quo objections in limine were
raised against the application filed on behalf of the appellant. The
learned trial Judge made the following observation in respect of the
objections raised: -
"In our law, a trust does not, even on registration, acquire body corporate status. Actions by or against a trust must therefore
be brought by or against the trustees for the time being of the trust.
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In this case, however, no prejudice results to any party, and I do not believe it is necessary to amend the papers."
This disposed of the points in limine raised by the respondents and no cross-appeal has been lodged by the respondent in this matter challenging the court's ruling in
this regard.
The appellant contended before the court a quo that the termination of his employment as a Coordinator by the respondent was unlawful, null and void by reason of the fact that:-
(a)
he was not given a hearing before his dismissal; and
(b)
the Board of Directors that dismissed him was not properly constituted.
I shall consider the second of these two issues first since its validity disposes of the matter altogether.
In terms of paragraph 4.11 of the Deed of Trust, (the Deed) the Trustees have the power to engage and dismiss staff and to determine
the conditions of service.
Paragraph 6 of the Deed governs the composition of the Board of
Trustees and recites that:
"The total number of Trustees shall not exceed eleven (11) of whom three (3) shall be appointed by virtue of their office, four (4) shall be elected at a public meeting held for that purpose and two (2) shall be appointed by the Ministry of
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Education. In addition there shall be one (1) representative elected by the employees and one (1) elected by the trainees as their
representatives who shall attend the meeting as non-voting members."
By paragraph 6.1, the three ex-officio members shall be: The District Commissioner, the Council Secretary and the Tribal Authority.
By paragraph 6.3, the non-voting members may be asked to absent themselves from the meeting when confidential matters are being discussed.
Paragraph 9 which governs "Election Meetings" provides as follows:
"9.1 The Executive Secretary shall call a public meeting not earlier than ninety (90) days before, and not later than ninety
(90) days after the expiration of three (3) years from the previous election meeting.
9.2 If the election is not held within the ninety-day period following the date three (3) years after the last election the elected members
are no longer Trustees. The ex-officio members and the appointed members shall continue to act as the Board. These Trustees may fill the vacancies of the Board (in terms of 11.2). The main objective of the Board is to hold an election of
Board members as soon as possible in accordance with the deed."
Paragraph 10 which governs "Tenure of office" provides that:
"10.1 Elected members of the Board shall serve a term of three (3) years. The period of members shall be staggered.
10.2 Ex-officio members serve as long as they are incumbent of the post and shall be replaced by their successors.
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10.3
Members appointed by the Minister of Education shall hold office for a three (3) year period and may be appointed for another period.
10.4
Representatives for the staff and trainees shall serve for a term of one (1) year and may be re-elected."
The appellant's averment in his Founding Affidavit that the Board members were last elected sometime in October 1996 was not controverted
by the Respondents. Nor was it denied that the 2nd respondent, following his nomination by the Minister of Education in March 1997, was elected by the Board members as the Chairman
of the 1st respondent. The term of the elected members of the Board of the 1st respondent expired in October 1999. By paragraph 10.3 of the Deed; "Members appointed by the Minister of Education shall hold
office for a three year period and may be appointed for another period." Thus the 2nd respondent's term of office also ended in April 2000.
Thus by the Deed of Trust, since an election meeting had not been held by January 1999, the elected members were no longer trustees
of the 1st respondent and their participation in any proceedings to dismiss the appellant would be a gross irregularity which would render the
dismissal null and void.
As regards, the 2nd respondent, he does not specifically deny that he was nominated by the Minister of Education in March 1997 and took office in April
1997. By paragraph 9.2 of the Deed of Trust he can continue to act as a member of the Board with the ex-officio members until the
term of
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his appointment expires. His tenure of office according to the Deed of Trust is 3 years. His term of office consequently expired in
April 2000, and unless there was proof that he had been re-appointed by the Minister of Education, then he was no longer a member
of the Board of Trustees. As such, his participation in any board proceeding on 10th May 2000 was also grossly irregular and rendered such proceeding null and void, whether it be to dismiss the appellant or purport
to do anything on behalf of the Trustees or members of the Board.
The 2nd respondent attempts to vindicate the action taken by the Board in respect of the appellant by asserting in paragraph 13 of the Answering
affidavit that the tenure of office of the Board had been validated by the electorate, in that at a board meeting that was called
to consider the issue of electing a new board, it was unanimously agreed that election be deferred until the mess that had been created
by the appellant had been cleaned up.
To begin with, the Board of Trustees derives its authority from the Deed of trust. The Deed clearly stipulates the term of office
of each category of trustee. Paragraph 9.2 stipulates that if an election is not held within the ninety-day period following the
date three (3) years after the last election the elected members are no longer trustees. There is no provision in the deed empowering
the Board of trustees to extend the term of office of any category of trustee. Therefore, the decision of the Board to prolong its
life by deferring election was ultra vires the Deed of
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Trust and the dismissal of an employee by the Board, the terms of office of some of whose members had expired, was beyond the powers
conferred on the Board by the Deed of Trust and, as such, unlawful void and of no effect.
The appellant herein seeks reinstatement to his position as Coordinator of the 1st respondent. The 1st respondent avers that by a contract of service entered into with the appellant, the 1st respondent is obliged to give the appellant one month's notice before dismissing him and that such notice was given to the appellant.
Unfortunately since the Board dismissing him had no authority to do so neither did it have the authority to give the appellant notice
prior to dismissal.
Consequently the appeal is allowed with costs.
Accordingly, the Judgment of the High Court herein handed down on 22-08-02 dismissing the applicant's claim is hereby set aside, and
the following orders are substituted therefor:
1. The dismissal of the Applicant from his employment by the respondents was wrongful, null and void.
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2.
The applicant is to be reinstated to his position as Coordinator of the 1st respondent.
3.
The 1st respondent is to pay the costs of the application.
DELIVERED IN OPEN COURT THIS ....
DAY OF JANUARY 2003
K.R. A. KORSAH JUDGE OF APPEAL
I AGREE
C. PLEWMAN JUDGE OF APPEAL
I AGREE
J. Z. MOSOJANE ACTING JUDGE OF APPEAL
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