ABERCOMBIE

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CIVIL APPEAL NO.48 OF 2022 ABERCROMBIE AND KENT(T) LTD COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ALFANI AMIR RESPONDENT/DEFENDANT JUDGMENT BADE,J, JUDGMENT 04/10/2024 & 29/11/2024 BADE,J. T|ie bi'ief material fact leading to this Appeal can be discerned as per the record of this appeal reveals that the Appellant was the employer of the Respondent. Respondent worked with Appellant as a watchman from 1998 up to 2005 when his employment was lemiinated. The Respondent was aggrieved by the termination, and he made an Application to the Commission for Mediation and Arbitration, unfortunately the Commission upheld the decision for his termination. Not to be easily defeated, the Respondent appealed to the Minister for Labor, who rescinded tlie termination and declared the termination of the Respondent was unlawful. He ordered the Appellant to reinstate the Respondent and pay all his dues. Following the Minister’s order, the Respondent filed an Application before the District Court applying for the execution of the said order. It seems that there was a preliminary objection that the District Court has no jurisdiction to entertain the labor matter. The District Court ruled in concession that it does not have jurisdiction. The Respondent appealed to this Court (Gwae, J.) who ruled that according to the applicable labor law at that time which is Security of Employment Act, [Cap 387 R. E 2002] the District Court was vested with jurisdiction to entertain such matter. The Application was thus returned to the District Court to be heard on merits. At the District Court, the Respondent prayed for the execution of the Minister’s order and he was claiming as follows: 1. Salary arrears from the date of the issuance of the Minister’s order to the date when the matter started to be heard on merits, that is from August 2010 to May 2022 in tune of TZS 21,300,000 2. House allowance of TZS 10,000 per month for 142 months in tune of TZS 1,420,000 3. Annual leave transport TZS 6,500 per day for 11 years in the tune ofTZS 71,500 4. Medical treatment in tune ofTZS 150,000 5. Daily transport allowance TZS 800 per day for 3470 days in tune of TZS 2,776,000. The Respondent was claiming a total of TZS 25,717,500.00. Upon hearing the argument from both sides, the District Court held that the rightful payment which the Appellant owes the Respondent is TZS 4,417,500 only and a certificate of service. The Trial Magistrate ordered the attachment and sell of the Appellant’s vehicle make Toyota Land Cruiser with registration no. T737 DCD in case of default of the payment. The Appellant being aggrieved by the said decision he lodged the instant Appeal on four grounds in its memorandum of appeal to the effect that: 1. That, the District Court grossly erred in law and in fact for ordering payment of housing allowance for 142 months, the time which the Respondent was not in employment. 2. That, the District Court grossly erred in law and in fact by ordering payment of annual leave transport for eleven years, without ascertaining the reason for the payment. 3. That, the District Court grossly erred in law and in fact for ordering the payment of medical treatment without assigning a reason for the payment. 4. That, the District Court grossly erred in law and in fact for ordering payment of daily transport allowance for 3470 days while knowing that the Respondent was by that time was out of employment. This appeal was disposed of by way of written submission. The Appellant was represented by Mr. Qamara Aloyce Peter, learned advocate whereas Mr. Eliakimu Ndelekwa Sikawa, also learned advocate appeared for the Respondent. Mr. Qamara submitted that, it is on record and admitted in the Ruling dated 23/09/2022 by Hon. B.I Mwakisu that after the order of the Minister to reinstate the Respondent without loss of remuneration, the Appellant complied witii payment of the salaiy arreas to the tune of TZS 8,060,000 as ordered by Hon. C. Magesa. He referred this Court to page 8 of the Ruling by Hon. Mwakisu. That, on the same Ruling it was admitted that the Respondent was also paid TZS 1,974,000 as a benefits for not reinstating the employee as per section 42 (b) (i) and (ii) of the Security of Employment Act,[Cap 387 R.E 2002]. He referred this court to page 10 of the Ruling. It is further argued by Mr. Qamara that the payment of TZS 4,417,500 as ordered by Hon. Mwakisu is not supported by any provision of law. Neither of the laws, be it the old Security of Employment Act nor Employment and Labor Relations Act support the said payment. Mr. Qamara added that, housing allowance for 142 months to the tune of TZS 1,420,000 was not backed up by any provision of the law nor is it reflected on his employment contract. Also, the payment of annual leave for 11 years was not supported by any provision of law and that the whole of the stated period the Respondent was out of employment. To support his position, he cited section 44(1) (c) of the Employment and Labor Relations Act. Moreover, Mr. Qamara argues that the payment of the medical treatment of TZS 150,000 and payment of daily transport allowance of TZS 2,776,000 at the rate of TZS 800 per day for 3470 days was not supported by any ground of law, be it the Security of Employment Act nor Employment and Labor Relations Act. The Respondent was not attending work on the claimed days. To buttress his position, he cited section 36 (a)(b) of the Security of Employment Act and section 43(1)(a)(b)(c),(2) and (3) of the Employment and Labor Relations Act. (1 o; lype unknown Opposing the Appeal, Mr. Sikawa in his brief submission argues that the house allowance is an entitlement which the Respondent was entitled according to his employment contract and the employer’s employment policies. That the Respondent used to receive such allowance from the employer during his employment period. Mr. Sikawa added that it is unreasonable for the same to be questioned at the execution stage while the same was proved during hearing of the matter at the Board and on the appeal to the Minister. That, the District Court exercised its powers to execute the Minister’s order after being proved its legality and not otherwise. On the issue of annual leave transport, Mr. Sikawa argued that these were entitlements which the Respondent was entitled to during his employment period and it accrued from when his employment was unfairly terminated and the employer refused to reinstate him up to the date of settling or paying the accruals. With regard to the allegation that payment of medical treatment and payment of daily transport allowance was unjustifiable, Mr. Sikawa responded that those payments were the Respondent’s entitlements which he ought to receive as long as he remained an employee of the Appellant until the Minister’s order was fully settled or executed. So having read the rival submission by both parties, the issue calling for detennination here is whether the decision of the District Court is erroneous. Going through the record of this Appeal, it is an undisputed fact that on 02/08/2009 the Minister for Labor(by then Hon. Prof Juma A. Kapuya) issued an order requiring the Appellant to reinstate the Respondent and be paid all his dues. It is also on the record that the Appellant did not reinstate the Respondent, instead the Appellant paid the Respondent 12 months compensation in the tune of TZS 1,380,000 and severance payment in the tune of TZS 414,000. This is according to “stakabadhi ya malipo” dated 02/02/2010, a fact which was not disputed by the Respondent. The record of the file further reveals that, on 02/08/2010 the Respondent made an Application to the District Court (before Hon. Magesa, RM)claiming that after the.Appellant refused to honor the order of the Minister to reinstate him to his employment, nor paid him salary arrears for the period he was suspended. The Appellant paid liim only lenninal benefits to the tune of TZS 1,974,000. Upon an ex-parte hearing, the District Court ordered that the Appellant’s motor vehicle made Coaster with Reg No. T 192 AGC be attached and sold to settle the claims of TZS 8,060,000 being salary arrears that the Appellant owed the Respondent. The order was issued on 16/12/2010. It is on the record that the Appellant made the payment of the said amount through a cheque with no. 018597 dated 10/01/2011. Recurrently, the Respondent knocked the doors of the District Court once again, this time before Hon. B. I. Mwakisu, RM claiming that Hon. Magesa only partially executed the Minister’s order despite being paid TZS 8,060,000. He claimed the Appellant did not reinstate him. He prayed for the court to order the Appellant to pay him salary arrears from when the order of reinstatement was issued to the institution of the Application, that is from August 2010 to May 2022, house allowance, leave transport fee, medical treatment and daily transportation allowance. After hearing both sides, the District Court ordered the Appellant to pay the Respondent TZS 4, 417,500 and issue him with a certificate of service. Technically, the District Court allowed all prayers except that of salaiy arrears for 142 months. In my opinion, as correctly argued by the counsel for the Appellant, Hon. B. I. Mwakisu, erred in allowing those prayers. I am faulting the decision of the District Court based on two main reasons; firstly, as already explained above when the Respondent knocked on the doors of the District Court for the first time (before Hon. Magesa, RM) he admitted that the Appellant had already paid his tenninal benefits. What he was claiming then was salaiy arrears for the period he was suspended. As already offered above, the Appellant paid the alleged salary arrears owed to the Respondent, which means he could not be claiming it for the second time. In the application before Hon. Magesa the Respondent did not claim house allowance, annual leave transport for 11 years, medical treatment and daily transport allowance, he only claimed salary arrears for the period he was suspended. To file another Application in 2022(though it bears the same number) is an abuse of the court process. Secondly, according to the record of this file, the Appellant after refusing to reinstate the Respondent, he opted to pay all his dues according to the Law. Section 42(5) of the Security of Employment Act, which was the Law applicable by that time, required that if an employer reflises to reinstate the employee after it was ordered to do so, then the employer had an option to pay the employee compensation computed in accordance with section 36; which is a sum equal to twelve months wages, which as explained above, the Appellant had already paid the Respondent. Section 36 of the same Act is about Severance Allowance, which was also paid. The argument by Respondent’s counsel that the house allowance, annual leave transport for 11 years, medical treatment and daily transport allowance are the Respondent’s entitlements is misconceived as they are neither supported by any law nor proved by the Respondent at the trial as correctly submitted by the Appellant’s counsel. Having said so this Appeal has merits and I hereby allow it. It is further ordered that the Ruling and Decree of the District Court(before Hon. B. I. MWAKISU)be quashed and set aside. This being a labor matter 1 make no order as to costs. It is so ordered. Dated at ARUSHA this 29th of November 2024 . A. Z BADE JUDGE OF THE HIGH COURT