20181017 TZHC Dar es Salaam1

f, IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTR~CT REGISTRY) . AT DAR ES SALAAM CIVIL APPEAL NO. 93 OF 2015 (Original Civil Application No. 124/2014 of Ilala District Court before Hon. Mkasiwa, SRM) ALPHONCE IVO JUMBE ... ... .............................. APPELLANT VERSUS TANZANIA TELECOMMUNICATION COMPANY LTD ............................................ RESPONDENT JUDGEMENT Date 02/10/2018 & 17/10/2018 I. C. MUGETA, J. The facts of this case are simple and straight forward. The respondent dismissed the appellant from .employment. The appellant appealed to the then reconciliation Board of Ilala District which ordered reinstatement of the appellant. Being . aggrieved, the respondent appealed to the Minister for Labour 1 lMt who ori 28/4/2004 ordered that the appellant should be terminated and be paid his right per the law. There is no dispute that in compliance with the Minister's order, the respondent paid to the appellant a total of Tshs. 12,636,685/=. This was on 01/09/2004. In 2014 the appellant knocked the doors of the District court of the Ilala District to enforce the decision of the Minister. Consequently the District , Court issued to the respondent a notice to show cause why the order of the minister should not be enforced. It is at this juncture the respondent produced evidence that it paid the appellant all his entitlements. In a well reasoned ruling the District Court found that the appellant had no further claims so his application was dismissed hence this appeal. The District Court determined three issue. These are:- (i) Whether the appellant is entitled to repatriation. (ii) Whether the appellant is entitled to severance allowance. (iii) Whether the appellant is entitled to statutory compensation. As I have hinted above all these issue were answered in the negative. 2 f· ~ The appellant's appeal is pegged on three grounds of complaint. The same was dispose by way of filing written submission and both parties complied with the schedule. I have examined the g'.ound of appeal and the submission and it is my finding that the grounds of complaint boils to two issues. (i) Whether the appellant is entitled to severance allowance. (ii) Whether the appellant is entitled to repatriation allowance for his children. In its judgment the trial court found that the appellant hand been paid Tshs. 145,000/= as severance allowance. The appellant challenges this finding on ground that the payment of Tshs. 145,000/= was not for severance allowance but for a long service award. In their written submission counsel for the respondent has submitted that the appellant ·was not entitled to severance allowance because he was summarily dismissed, therefore, not entitled to Severance Allowance in terms of section 40(2) (i) of the Security of Employment Act and Section 4 (1) (c) of the Severance Allowance Act. 3 'r · With due respect both the trial court and the counsel for the· respondent are in error. As rightly submitted by the appellant payment of Tshs. 145,000/= was in respect of long services award per the payment voucher in exhibit Pl submitted at the trial court. The submission by counsel for the respondent is misconceived because the final decision is not of the employer who dismissed. the appellant but that of the minister who terminated him. It follows, therefore, that since the appellant was terminated, he is entitled to payment of severance allowanc~. The first issue which cover the first ground of appeal is answered in the positive. Regarding the second issue, there is no dispute that the appellant was paid repatriation allowance. His claims, however, is that the same were not paid for his four children. The respondent argued at the trial court and in the written submission that at time· of payment there was no evidence that the appellant had children. The trial court bought the argument and ruled:- " ... in this case there is no evidence to show that the decree holder has four children in order to be paid repatriation allowance for his children". Documents evidencing payment to the appellant were tendered at the trial court by the respondent and the same were admitted as 4 I ,. exhibit Pl. One ·Of the documents, a letter addressed to the appellant Ref. No: DF.6621/PF.22063 dated 15/6/2004 states the appellant's entitlements after termination. The entitlement at item 3 of the letter is: "Nauli yako, familia pamoja mizigo yako ... " If the respondent new that the appellant had no children the word 'familia" would not have been used because the evidence at the trial court is clear that at the time of payment, the wife of the appellant had passed away. The appellant testified before the trial court that he has four children and the employer has all the birth certificate for the children. Under the circumstances the trial court was unjustified to disbelieve the appellant. It is the respondent who ought to be disbelieved because if they had proof that the appellant have no children, the word "familia" would not have been used in the said letter. · In his written submission the appellant has attached those certificates. However, written submissions are not evidence. The burden to prove that the appellant did not submit evidence of children lied on the respondent and they did not discharge it. It follows, therefore, that the second issue which relates to the second ground of appeal is also answered in the affirmative. The respondent to pay for repatriation of the appellant's four children. 5 ,, In the event, I find merits in the appeal which is hereby allowed. The order of the trial court is hereby set aside and it is substituted thereof with orders that the appellant is entitled to payment of severance allowance and repatriation allowance for his children. It is so ordered. "baa I. C. Mugeta JUDGE 17/10/2018 Court: Judgment delivered in chambers in the presence of the appellant in person and Asha Wallady Advocate for the respondent. Sgd: I. C. Mugeta JUDGE 17/10/2018 6