20140718 TZHC Mwanza

.,. IN THE HIGH COURT OF.TANZANI 1 IN THE_ ~I- STRIC-: REGISTR: , ~-- . ~-' - AT MWANZA k- ·~¥\Ai _ -r · HC CIVIL CASE NO. 09 OF 2010 q__ ~ ~ce... b~,e-r \ .- ELLY ISAYA KATIKIRO ..................................... PLAINTIFF VERUS 1. PERMANENT SECRETARY MINISTRY OF H0t1E AFFAIRS 2. ATTORNEY GENERAL ......... DEFENDANTS JUDGEMENT 11/04 & 18/07/2014 SUMARI, J. I The plaintiff, Elly Isaya Katikiro is an erstwhile police officer who joined tbe police force way back on 1st October, 1980 in Mwanza but worked in various police stations. His last working station was in Musoma District in Mara region. In his sworn testimony the plaintiff stated that on 15th May 2008 one Inspector John on behalf of OCD Musorna read to him a police message "Exh P.1", the gist of the said message was to notify the plaintiff on his retirement which was supposed to take place as from 1st July, 2008. fib__ 1 f..J..S!biE41?:-W45,,Wtfa!i-E.JMdiJPDm}~2.•S~k!i!i.ilbD!iltN!t . . ,., .. r, ., ··•• · ','.:.-.~_;:it .. ··. ;;.:-~~~rn~ ~ . Pursuant to the,. said pdtice mess~ oo. l~th day,~cf Ma-y, 200& the piaintiff. · was issued with a movement order No.63'4373 "Exh ?.~', to take 50 days- . ieave pa1dirig his retirement orl 1st day of ,!ufy', .2008.. After his teave comptetion of the plaintiff took Exh P.2 attaching within it copies of his marriage certificate and birth certificates of his children to the cashier who prepared for him a payment voucher amounting a tune of Tsh. 40,750/= for the transport of the plaintiff and his family. Buttering his case the ptaintiff averred that one P.C. Asukite instructed him to go to the Regional Police Commander to collect his payment. He followed suit on 20/05/2008 and meet one kitila, who was the cashier and Inspector A. Katimbo who told him to make a follow up on the foltowing day. The plaintiff complied in vain till on 23/05/2008 when he was given a certificate of discharge from Tanzania Police Force" Exh P.4". The plaintiff insisted that despite issuing several demands to the defendant instructing. them to transport him to his place of domicile, that is, Bunda District the 1st defendant has reluctantly failed to comply. Consequently interalia praying for a tune of Tsh 78, 579,000/=. Defending themselves the defendants' summoned one Inspector James Nshatta (Dwl) who works as a police officer in Dar es salaam police Head quarters. He acknowledged to know the dispute at hand but insisted that the plaintiff has never been repatriated to his place of domicile ~ 2 ,.. l .. · ··• · due '"to the fact that he has· never ·. compHed with the procedu1-:e in .his. " I I ~ • . ,,; application for repatriation costs. . . Dwl intensified that for the application for repatriation costs to be. successful it should be accompanied by copies of marriage .and birth c·ertificates. of the applicant. He also insisted that the permanent secretary never failed to pay the plaintiff but the plaintiff was instructed to use the poHce transport to go to Bunda- but he didn't show up. When cross examined Dwl styck on his guns that, there is no record at the potice force that shows the plaintiff applied for repatriation costs. That there were instructions from the RPC's office for the plaintiff to use police transportation the after the plaintiff was issued with the movement order for retirement leave the plaintiff did not apply for repatriation cost as there is no record showing that there is standing claim. When I examined Dwl, categorically pointed out that the plaintiff was entitled to repatriation costs which he did not apply. That if the plaintiff insists to get the same at this juncture he should follow the prescribed procedures. Having addressed the party's testimonies the ball now is before this Court to address the issues framed and agreed. The plaintiff prosecuted his case through the services of Mr. Makunja, learned counsel whereas Ms. .. . ~ Nyaki, learned State Attorney represerited the defendants. llftr:__ 3 ., . ' .:::. ··,• ' . ; ,,~.~ . ..,I" ' .... " . . . ·.. . The'· 1 ·issue is whether the.. plaintiff ctaimed for ref)atriation. costs st lI • ', after hfs retirement .. In sui:,port of this issue- the ptaintiff ave1=red that he is . . ~- ~ . entitted to be paid repatriation cost as the same was. not paid to him. The plaintiff further chaHenged the defendants' claim that he was given poUce transportation but he never showed up. In reply, the defendants' counsel submttted that as per Exh P.1. the p~aintiff received a police message directing him to take 50 days leave before he fuUy retired to work with the poHce force. That the ptaintiff was given a movement order and was paid 40,750/= as a bus fare for his wife and three children and he started his retirement leave. The defendants counsel intenstfied further that the evidence of Dwl categorically pointed out that the plaintiff was supposed to return Exh. P2 after he came back from his retirement leave. That the plaintiff was suppo~ed to attach necessary documents but he failed to do so. She intensified that even Exh. P.2. is the original form which ought to have been returned to the plaintiff's empJoyer. Now, after a careful consideration of the evidence on record I am satisfied that since it is undisputed fact that the plaintiff is yet to be paid repatriation costs after his retirement, the fact which is not even challenged at an by the defendants' counsel, I see no need of not answering this issue in the affirmative;~ 4 . ~!. _.• As for the 2°~ :issue, 1whether_' the defendants' fa»ed to· repatriate 1the -, / t t .. ,l ~ - • • '' ' • .t • - p~aintiff, the ptaintiff contention with regard to this is....c:ue is that the • defendants' officiats in ·Musoma. failed to transport him. That the said officials neglected to perform their duties thus making the p}aintiff to become a victim of circumstances. ; Retorting to the above submission, the defendant's learned State Attorney vigorously submitted that the plaintiff was the one to b~ame as he fa~lect to compiy with the procedures which woutd enable him to be paid repatriation costs. It was the defendants' submission that the piaintiff was given a police vehicle to transport him and his family but the plaintiff never show up for the said transportation to be effected. Indeed looking at Exhibit P.1 as amply stated by Ms. Nyaki, learned State Attorney, the plaintiff received the Police message on 15/05/2008 instructing him to take a 50 days leave starting from 12/05/2008 to 15/06/2008. Though from the days given upon computating them does not tally to a number of fifty days, Exhibit P.1 pointed out that the plaintiff was supposed to retire on 01/07/2008. This connotes that, after expiry of the . said fifty days, the plaintiff was required to return back to his employer so as· to finattze his retirement processes, which in one way or another included applying for repatriation costs as clearly demonstrated by Dw1. ~ 5 ~- "'I '·~4 . . ◄ -;m;,.an-Rt. 1-4. ._. t' ,,.,- it is my coosidered opinkm that though the poot•ff is entitJed to be·. ·· ·,· paid repatriation. costs from· his working station to his p¼ace or domicile, as ' • it is usually done; the plaintiff never took efforts to claim for tt)e same. l have arrived to that findi"ng because the defence side evidence was very clear to this effect. That after the ptaintiff was issued with a Movement Order "Exhibit P.2. "he was supposed after expiry of his 50 days retirement- leave to foHow the prescribed procedures. One of that procedure was to apply for repatriation costs appending" it with marriage and birth certificate of his chHdren. I am very much· convinced that the same was not followed because the p~aintiff has not shown any proof to justify that he requested for that payment to be patd to him after he came back from his 50 days retirement leave. Again, I am of the firm view. that the ptaintiff di~ not" apply for the repatriation costs because the original form of Exh. P.2. which was to be attached with the certificate of marriage and birth certificate of the _plaintiff's children was still in possession of the plaintiff and it was the one which was tendered before this Court as part of the plaintiff's evidence. As amply demonstrated by the defendants' learned State Attorney, the said document ought to have been in the hands of the defendants' if the plaintiff claimed for repatriation costs. The plaintiff therefore cannot benefit from his own sluggishness of faiture to comply with the prescribed procedure of applying for repatriation costs~ 6 - '.. . . &wwftzy~i-~;;:~w:::sam::cw:u;,r ..... :·•. ;=> · As forth~ question#·tha~~the plaintiff was.glven a-·po»ce transportation ·· as a~teged by the 'defendants, there is. nn substantiat proof on that. I see these as ·a flimsy' defence which has no legs. to stand ·before this Court. Finalizing the last issue that is what retiefs are the parties entitled to, it is the plaintiff's claims c'interalia for a sum of Tsh 78, 579,000/=. The plaintiff has. urged this could to award him the above stated amount. On the other side of the co~n Ms. Nyaki, Learned State Attorney has. opposed the plaintiff from being awarded the relief~ sought on the bags that the plaintiff was the one who failed to apply for repatriation costs and therefore cannot claim to be paid subsistence allowance out of the same. From the reasons I have endeavored in the 2nd issue, there is no garnsaying if I say that though the plaintiff is entitled to be p~id repatriation costs, his own negligence in applying for the ·same has attributed to the defendant to promptly fail to pay him in time. The plaintiff therefore cannot benefit from his own laxity or-negligence, so to state, in exercising his rights. In other words the plaintiff stood on his rights and cannot now claim advantage out of that. All that said, I hereby order the plaintiff. to follow the prescribed procedure laid down in the police force so as to obtain his repatriation · costs· and, or in an alternative or in lieu of that the 1st defendant's officiais · ~ 7 ~ z,~-j}f:,e~7:ai:;:~c~"i$r.'tt".,.. ,,.ia,r,~~;t,-:;; . ,,,-, .. in Mara·shoutd furnish the ptaintiff·with potice-transportalioo to his:·ptate of domicite if he has so far ·not moved to his domidte. " To that extent the judgment is in favour of the pfaintiff if he abides to the required stated procedures. Each party to bear own costs. A.N.~'. JUDGE AT MWANZA 18/07/2014 8-