managing director kjmotors vs elias halfan ndyamkama and others 1994 tzhc 404 6 july 1994

•h i te e i:ig:: c o m ? o;,’ AT PAR 133 SALAAM CIVIL APPEAL NO 51 OF 1994 TUB liAMOING DI R ECTO R K. J . MX'OgS APPLICANT VERSUS D G M ^ ly o o i emanates from ’ihe dooiaion o f the K isutu M a g istra te's Court in Employment cause number 36 ° f 49$3jr vhioh entered judgment f o r the respondents and decreed that thfl Appellant pay the Respondents re p a tria tio n oosts to the 3«oopecti-vo hoiTiaa «. fl1 !^ ^ p o llx n ta being f*l £Lftd. -with th at d ecision are now appealing 'to th is Court, The RaBpondpn'fcc wer* former ei/E>loyG<5S of the appellant t h e ir p f i - p r i vajpo texiiinated and sono or '1*Iks tasnl*ial tvojxofi'ta. **acna paidj there was a dispute over other term inal hen.efi.ts i-*ir>.ludixg re p a tr ia tio n oosts f o r tra n s p o rt n;; them to the respondents hone p liw e a . The matter was f i r s t handled by the Labour O ffic e r , who, having f a ile d to resolve i t reported i t to Kisutu Resident M agistrates Court as provided under 3 , $30 of the Employment Ordinance Cap. 366 of the Law as attended hy A # * £ o£ 19-63* I t was accepted as fi.-.sfict at t r i a l th at although the Respondents had ixxiicated t h . t homo Cfiiuj.-wr;s n s s Bar es Salaam y e t they used to be paid annual leave transport oosts fo r t h e ir resp ective homes in d ica ted in the document presented when they were demanding t h e ir term inal b e n e fits . At t r i a l the respondent appeared in person while the appellant wore represented by Mr. Kariwa, Klvq grounds o f appeal wero raised to challenge the t r i a l '1«a is io n namely 1 (l) The ‘E ria l Court erred in la ir m appellant to r e p a tria te the respondents at i t s own exjK'ises to Bukoba, Nachingwea, Ilaneromango and H u fiji re s p e c tiv e ly , sim ply because the appellant used to pay expenses annual leave when the respondents proooeded c- ;.^avQ to th e ir rcrjpoctive places above raeiVfcionodo - 2 - (2 ) The J.eajn<?d tribal roagATisyat* *X?9& 4# tew ^ 4# fa o t io d is tin g u is h in g the decision o f Amos ICashulcu v s * General Manager, Tanganyika Hyeing and w a v in g H ills Ltd* «3) That the Learned t r i a l M agistrate erred in Law itt h oi dine th a t the nppellr"* t o ?)uno I' c ia iE th-’t the p laik v.i.ffa booautki -choy '••ore oiat-lo.yod fyo-^ Bar ea S>v, they are not e n t it le d to rep a tria tio n oosta# (4.) The Learned T r ia l MasiS'tra'te erred |n. That the Learned Magistrate orred in Law in entering Judgment in favour of the respondents, Fo* the sake of Conveniences, allowed both counsel^, to submit th eir submissions in writing# Irv his vritten. s'ibmission Mr. ICisusi ai^ued that i t was improper Jfor the t r i a l Court to order the appellant to pay respondents the repatriation costs to their respective homes sino? vhen they were engaged they showed that they were from Far ea Saisuun • He fujrthey eiibmitted that aooording to the oase of jUnos Kashuku V# The Ger.cral Manager, Tanganyika losing a&d VfeaVing M ills Dar as Salaam* High Court Kipa » Appeal No* 6 ot sljOC ^ W p ep o r^d )* since the appellant there was recruited in -Uar ?s Salaam then he vas not en titled to repatriation oosts. In the- case at hand* the Learned Counsel argued, sinoe the respondents ysre yeoruit©d in Dar es Salaam then they oouldn't have been, en titled to repatriation oosts# tJre Kiausija argument is that the oaoe at hand is within the. fo u r oornere of Kashulao 1 oaoe and the t r i a l Vourt waty wropg to distinguish it# Mr# Mrugaruga fo r the Respondent in his submission supported the decision o f the t r i a l Court, lie pointed out among other things that the pn'r^n =>n+ ag -the respondents employer was obliged to keep proper .records of their employees including that o f domiciled# _ 3 - In my considered view wloat "the -trial oourt was to deoido was whether i t was proper to order the appellant to pay the respondents the repatriation oosts, To decide that i t ia necessary to look at the purpose of repatriation oosts, It goes without saying that tha intention of having repatriation costs la .to enable 1?b» person terminated ids service "with. Iii3 employer $ • gsi origin bo that he :;s r..-:-t J.r-'t l),o3;:l.oft.- #/*<■» thus ljeoc.in« a. xogyo and vagabond* In.‘ e«:l _n 'laaidin^ '*lv5rc the employee's donioiltj one of the evidence is to look at the address of such employee given at the timq he is employed yet I am f a r from persuaded that that is the only means of determining such dosaLoile* The oourt is entitled^ trt i}i« of justice f to look at other faotois vhioji QQEe^<l*.tQjEnift© rujph. domicile. The t r i a l oourt in this case c a re fu lly weighed the evidence before i t and’ i t was oanvinced that Respondents* domicile was not Dar es Salaam, I do not have ar$rthing to fa u lte r that decision* Whil» I do agree that the addrcHBS-ep given by th® respondents at the time of their engagement could be taken as evidence o f such domicile i t is not the only -evidence. The Court ya& entitled as i t did, to look at the other faotors to determine such domicile. The appellants as employois were required to keep proper reoords of their employees* In distinguishing Kashuku's c^se the Learned t r i a l magistrate had this to sayi — " It ia tempting to aay the facts of \ Kashuku's case and those o;.: this case aye sim ilar or the same® However a thorough and deep v is it propose thit there are differences * * r• .ft* *• in the two. In Kashuku's case the Hon. Judge arrived at the conclusion that plaintiff/A ppellant was not entitled to aixih costs as he was employed while he wa3 in Dar es Salaam* The judge was moved to arrive at this conclusion by the fa c t that there was evidenoe o f correspondence between the appellant and the respondent before the respondent was employed* A ll this correspondence show that the appellant was liv in g in Dar es S-iInam be.Core he was employed. Thic: is tho differ^, t situ.tiorj with the case at hand. Theia is no evider: ■ in this case". - 4 - The Learned magistrate want on to elaborate why he considered -that the oase at hand is distingu ishable from Kashuixi’ s oase. In my s e t t le d view the Learned t r i a l ma£'istr:ite -was qu ite r ig h t on h old in g that tlio two cases arc diotin ftu ish able, Having in the employee to go to M s place of douii<;ilG instead o f remaining a d e s titu te at the place and time his services w ith his employer are term inated, , I am f u l l y s a t is fie d that the deoision o f the lower Court is sound and I see no way how i t can be i^ u g n e d . The appeal i s thus dismissed in it s en tirety * As m i-sl costs to fo llO K "the G. D. TU,:UI PIUNJIP&L RB3I IaA-GISI'IUTE I c e r t f y th at tn is is a true and correct copy o f the o rig in a l# *V ;'S0 Mshote / DISTiaCT KEG1STRMJ