director nyegezi social training institute vs johnson byenobi 2007 tzhc 441 12 july 2007

IN THE HIGH COURT OF TANZANIA AT MWANZA MISC.CIVIL APP. NO.17 OF 2005 (Arising from Mwanza RM's court Civil Appi. No.26/1998) DIRECTOR NYEGEZI SOCIAL 1 TRAINING INSTITUE J .................... APPLICANT Versus JOHNSON BYENOBI.................................. RESPONDENT 31/5/2007 & 12/7/2007 JUDGMENT RWEYEMAMUJ: The appellant, Director Nyegezi Social Training Institute (NSTI) aggrieved by the ruling of Hon. Utamwa, SRM asks this court vide their counsel Mr. Butambala advocate to make a finding: "1. That the Honourable court erred in law to adjudicate upon the application No.26/1998 on the account that the court was already functus officio. 2. That the court erred in law in entertaining the relevant execution proceedings as the Respondent was already awarded Tshs.l/006f170/= by Hon. Mipawa, SRM 3. That the court erred in law in awarding Tshs.36f627f 000/= to the Respondent as damages which reliefs are unjustifiable in employment laws" The background of the matter is as follows: The respondent Johnson Bvenobi was an employee of NSTI. That employment was terminated and Byenobi successfully appealed NSTI's decision to the Labour Conciliatory Board (CB), as per the law then regulating settlement of such labour disputes. The CB ordered Byenobi reinstated - that was on 17/2/1997. That order has never been executed, instead it has been subject of a number of actions in court for a period of almost 10 years to date, including the ruling subject matter of this appeal. That ruling arose in the following circumstances: Byenobi filed Misc. Civil Appl. 26/98 seeking; "to enforce the decision o f the Mwanza Conciliation Board that the applicant be reinstated to his former employment". That application for execution was granted by Mipawa SRM twice, on 11/6/2003 when he ordered that: "Court: As the Respondent is not coming and not interested in the case I proceed to grant the application to enforce the decision o f the Reconciliation Board. It is so ordered Sgd: I. 5. Mipawa - SRM 11/6/2003" And on 22/7/2003, when he again ordered that: Order: upon the application for execution o f decree filed by D/Holder let an order to compel the Director Nyegezi Social Training Institute - Nyegezi Mwanza to re-instate im m ediatelythe plaintiff back to his former employment as ordered by the Mwanza Conciliation Board. Sgd: I. S. Mipawa —SRM 22/7/2003” Strangely, on 29/12/2003 Byenobi as part of the execution filed a schedule of claims in the sum of Tshs.55.327.500/= being for: - Salaries from 1996 - 2003 - Interest thereon - Leave payments - Gratuity and general damages These were two distinct issues, a prayer for specific performance of the reinstatement order, and a claim for other employment benefits due. Those were the claims granted in the impugned DC ruling. The DC granted the claim as presented save for Tshs.8.700.000/= gratuity; and 10.000.000/= general damages, thus awarding a total of Shs. 36.627.000/=. I have also noted from the proceedings that apparently, the appellant was advancing mixed defenses (as per Advocate's submission on 31/12/2003); one that the reinstatement order was unenforceable because NSTI had ceased to exist and two, that they were ready to pay statutory compensation in lieu of reinstatement It appears to me there has been confusion and consequent delay in this matter arising from misunderstanding (on part of the court and the parties involved), regarding the applicable law and procedures governing the following: 1. The remedies available to an employee whose reinstatement has been ordered by the CB (like Byenobi), but not obeyed by the employer. 2. The procedure of accessing the same. 3. Procedures for claiming employment rights by employees. 4. Enforcement of rights and liabilities of parties following business take over. I find it better to examine the four aspects above because the decision on the issues raised in this appeal is dependent on them. I begin with issue 1. I should on the outset state that after the CB decision which was not appealed. Bvenobi had a right to reinstatement. Under the law however, NSTI could obey the order in the period provided, (28 days in the instance easel, failure of that Bvenobi had rights to statutory compensation as provided for under Section 42 ( 5) of Security of Employment Act (CAP.387 R.E.2002) which states, and I quote; "42(5) Where a re-instatement or re-engagement has been ordered under this section and the employer refuses or fails to comply with the order- (a) in the case o f an order made by a Board against which no reference has been made to the Minister, within twenty-eight days o f the order being made; or (b) in the case o f an order made by the Minister on a further reference to him,..., the employer shall be liable to pay the employee compensation o f an amount equal to the aggregate of- (i) the statutory compensation computed in accordance with section 36; and (ii) a sum equal to twelve months' wages at the rate o f wages to which the employee was entitled immediately before the termination o f his employment or, as the case may be. his dismissal. and such compensation shall be recoverable in the same manner as statutory compensation, the payment o f which has been ordered under section 40 ".(Emphasis mine) There has been confusion for quite some time in the labour regime relating to enforcement of reinstatement orders under the now repealed law, (settlement of labour disputes are now governed by the Employment and Labour Relations Act, 6/2004 which became operation on 20/12/2006, and Act 7/2004 -the Labour institutions Act) which is the law applicable in this case. That confusion however was clearly removed after the highest court of the land - the TCA considered the issue in a number of cases. One such case is that of Pius Sangali & Others V Tanzania Portland Cement, Civil App. 100/2001 (CA-unreported - in a decision dated 17/11/2004) The import of the said decision for purpose of this case are among others that, one, after having failed to reinstate Byenobi within 28 days, NSTI was duty bound to pay statutory compensation as per section 42 (5) (i) and (ii) above; two, an order for reinstatement can not be executed by specific performance, unless they fall under the exception noted by the TCA in Civil Case No.68 of 2001, Paul Solomon Mwaipyana Vs NBC Holding Corporation (Dar es Salaam - registry unreported - in a decision dated 7/10/2003). The exception is when the CB decision was made under section 25 (1) (b); of Cap.387; three, no payment is due to an employee for days he remained absent from work. The decisions of both hon. SRMs' Mipawa and Utamwa were wrong in so far as they sought to enforce the CB decision by specific performance, and in the ruling subject matter of this appeal, in so far as it granted among the claims, salaries of Byenobi for the period 1996/2003 for which he was absent from work. The decision of hon. Utamwa SRM was in err for another substantial reason. It granted payments for employment claims which were not properly presented; before they were properly adjudicated and passed a decree against a party whose liability was not properly established. The three aspects revolve around issues 2 to 4 above. What was the remedy available to Byenobi after his employer failed to obey the reinstatement order. The DC had powers to enforce the rights of an un reinstated employee as per law, meaning it could hear the parties in respect of the amount due as statutory compensation under 42 (5) (i) and (ii), award the same and issue an execution order to recover the amount. Second, the DC had powers to decide the employment claims due to Byenobi on receipt of a Labour officer's report, if the latter had failed to settle the claim, and decide the amount due to Byenobi as employment entitlements under section 141 to 143 of the Employment Act, (CAP 366 R.E. 2002). Or, the court could adjudicate the matter like any other civil case. Third, the DC could only issue a decree against Saint Augustine University - an entity said to have taken over assets and liabilities of NSTI, after receiving evidence and making a finding that the new entity indeed took over the claim as alleged. From my examination of the record, that was not done. In view my decision that; - Byenobi had a right to reinstatement failure of that he had rights to statutory compensation, - an order for reinstatement can not be executed by specific performance, - Byenobi had no rights to payment for days he remained absent from work, - employment entitlements could not be granted without being properly presented and adjudicated, - a decree could not be passed against a party whose liability had not been properly established; I agree with Mr. Butambala although for slightly different reasons, that the DC ruling by Mr. utamwa was in err, that court had no jurisdiction to deal with the matter as it did; I hereby quash that ruling. In view of the period already wasted and to bring this dispute to closure, I find it in the interest of justice to order that the file be remitted to the DC which should summon the parties to: 1) Hear them and determine the amount due to Byenobi under the law as stated above. 2) Hear the parties on the issue of the liability of NSTI and or its predecessor, since it is undisputed that NSTI has ceased to exist. The respondent is otherwise free to present his claims due as employment rights according to law. This appeal succeeds to the extent explained. I make no orders as to costs. Sgd: R. M. RWEYEMAMU JUDGE 12/7/2007 Delivered in the presence of Mr. Butambala Advocate for the appellant and the respondent in person. Right of Appeal Explained. Sgd: R. M. RWEYEMAMU JUDGE 12/7/2007