19990618 TZCA Dar es Salaam

(HC)4Civ.ApD 0 ll/2000, - 2 NANUEL MTAa: AUGUSTINE - PLAINTIFF VERSUS TABORA MUNICIPAI COUNCIL .. - DEFBNDANT JUDGNENT The plaintiff in this case one Emmanuel Mtd Augustine is suing Tabora Municipal Council claiming a total of Shs.1,264,520/= being subsistence allowance for 82 days payable upon retrenchment pending repaThiation baok homed The defendant council denied liability upon which the plaintiff was called upn to prove his claims. this The facta giving rise to± suit are very bri?f. Until 30.6.94 the plaintiff was employed by the e±'endants as a Registry Assistant. He was paid terminal benefits on 20.994 that is 82 days after retrenchment hence the present 1aLm for subsistence allowance. ¶ie defendants maintained that the plaintiff had been paid all his allowances following retrenchmente As such the main point in controversy is whether or not the plaintiff is entitled to subsistence allowance from the date of retrenchment to that of repatriation. Under S. 53(3)(h) of the Erployment Ordinance Cap. 366 an employer is obliged to pay subsistence allowance between the date of termination of employment of an employee and repatriation. He (employer has to pay subsistence allowance not salaries. An employer can not be allowed to circunryoatcthe law by paying salaries in lief of subsistence allowance. Now, in the instance case, we are told that the plaintiff was being paid some money which was equal to his monthly salary. The defendants have however failed to present the relevant payment vouchers to assist the Court in deterining ho much money was the plaintiff paid. Fortunately however, the plaintiff adinitsttobhtce been paid unspecified allowance to the day when he was paid terminal benefits. (HC) . Ciy,A2~ Jl/2OOOi , 3 - This state of affairs has left the Court in fog The plainti . ff does not know the actual amount of meney he received as subsistence allowance. The deiendant co.incil on the other hand has no documents evidencing the amount of mÔliéy paid to the plaintiff between the date of rtrénbhiflent and repatriation4i The plaintiff h O: 'W' ev0r' claims Shse12645.~ O/= i,e subsistence allowance fo1 himself h i s wife andfour children, This claim gould have been tenable I think had the plaintiff been paid nothing at all. He can not be heaxd to day to claim this amount whilst at the same time he says they paid him some subsistence allowance. In the circumstances of this case doing justice to both sides, I will reduce this amount to a round figure of Shs.632,000/=. That will certainly take care of the interests of both parties as they are all to blame for the state of uncertainty created. Eventually to that extent therefore the suit succeeds with costs. The decretal amount shall carry interest at the qtè of 12% from the date of jusgment to payment in full. P 4 M. KENTE RESIDENT MAGISTRATE 21.3.2000, Deliveredt to both parties this 21st day of March, 2000. Right of appeal explained 0 P. M. KEN TE RESIDENT MAGISTRATE 21st March, 2000." Now, that judgment was not a good wor1irnrip. The simple facts of the case were that: the plaintiff had boon engaged in Tabrra, by the Municipal Counicil • , as a Registry Le1: Clerk. (HC).C1vmAppell/2OOL - - He was so employed on 218/1982. The plaintiff comes from tikerewe. The contract of employment bias not tendered in Court. So, no one would know his term ef contract. On 30/6/94, he was fired from job. Again, the plaintiff did not tender before the Court the letter of termination. So, we dO not know what that letter of termination talked of, After the plaintiff was fired, he got his terminal benefit. This is told by himse]f.. After getting his terminal benefits he waited for 82 days to be repatriated to Ukerewe, his home of domicile. So, according to his computation, he said he was supposed to be given this amount of money- Shs1,264,520/=. The learned Resident Me.gistrate ooüld not understand why the plaintiff could claim this amount when he (plaintiff) was "being paid some money which was equal to his monthly sa..lary • The same learned Resident agistrate then, goes on to say: - "This amount would have been tenable, I think, had the plaintiff been paid nothing at all. H cannot be heard to say to claim this amount whilst at the same time he says they paid him some subsistence allowance s " After listening to Mr. Boaz who represented the appellant, ahd after my perusal of the record, which, has really, scanty evidnoe, it is quite clear that the plaintiff proved notbin, His scanty evidence never even reached the standard of proof, that is, the balance of probability. For, look at his own evidence. He says: "1 was paid repatriation costs on 20/9/949 I do not remember well how much money was paid to me from the time of termination of my service to 20/9/94 before I was paid my my terminal benefits." v.App,1142000. -4 52 - The Law governing the issue at han'di which the learned Resident Magistrate was bound to look at is this: The respondent, Mr. Emmanuel Mtaki had got employed in Tahora by the Municipal Council 0 There was no evidence that he was brought into Tabora from Ukerewe. If that was the case then, the place of of Mr. Mtaki was Tabora. He therefore was not entitled to repatr±atin to Ukerewe. Repatriation expenses are given to someone who was bht into the place and not one who was engaged at the place where the employers employment is getting terminated (see the case of Francis. Maregesi v: The LE2A e ct rTabora Textile Mills H,C, Civil Appeal No. 10 of 1987 Tabora Registry - Ohipeta J.), In that oase the appellant 1 s, home was Mara Region, but hegot fired while here in Tabora. He Was refused repatriation expenses to Mara, The Court there was interpreting s 0 53(1) (b) 2 of the &p jojn nt Ordinance Cap. 366 of Revised laws, That was ti 1w the learned resident magistrate had to look into. The learned resident magistrate also fell into another pit - No costs are awarded in cases falling under the Employment Ordjnajice (See s 143 of the Ordinance). I was asked by Mr.Boaz to interpret words ophrases "subsistence allowance", "subsistence expenses," or "subsistence rations", In the light of the outcome of this appeal, I dont find it aeoessary to interpret those words. This appeal is allowed. I AT TABOPLA. Ji E. C. MASANCHE, 26th S 0ptember 2000. JUDGE. For appellant: Christina 7:iT iT'c. Adininistrtive Officer - Municipal of Tabora. For Respondent: present in person. - 18 - which we have endeavoured to explain. This means NITIN's case is bad in law since it undermines the sanctity of contract; and GEOBGE SHA1BWa case is only partly sound because it does not safeguard the intereats of. the paraniount landlord. We consequently direc that the ordinary bench bf this court before whom Civil Appeal No, 42 of 1996 is currently pending, be informed accordingly, so that the hearing of the appeal may r&sie. Weso order. DATED at DAR ES SALAAM this 18th day of June, 1999. F. L, NYALALI L. N. MFALILA JUSTICE OF APPEAL D. LUBUVA