20061124 TZHC Dar es Salaam

L--1G~ Dsm I IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 202 OF 2004 HAFIDHI ABDALLA~.MWINYI MZAWARUKATABAZI - OMARI MWINYIGOHA ............. APPELLANTS PAZIALLY VERSUS THE DIRECTOR MOHAMED ENTERPRISES ... DEFENDANT Date of last order: 16/8/2006 Date of Judgment: 24/11/2006 JUDGMENT MANENTO, JK: This is an appeal which originated from employment cause number 54/2003 filed at Kisutu Resident Magistrates court. The ./ reference had been forwarded to the court by a labour officer under the then Employment Ordinance, Cap. 366 and in particular, section 132 of the Ordinance as amended by Act No.5/1969. In that reference, the appellants were claiming against the ' i •i respondent for salary arrears which they had been under paid for I several years. Having been employed on different times, they were all . ' 2 terminated by the respondent without being paid in what they deserved. In reply to the reference by labour officer, the respondent denied to have employed the appellants on monthly basis. He alleged to have employed them on daily basis, thus casual labourers. For that matter, their employment ended on each day. When the matter was ready for hearing, the parties agreed on the issues to be determined. The first and most important was that in regard to the terms of their employment. The appellants testified to the effect that they were employed in monthly basis so they deserved to be paid arrears and some said that they were under paid or not paid for the extra times they worked. On the other hand, the respondent relying on the contract of service which each of the appellant signed against his name and the amount of money paid daily, being shs.1000 per day. The respondent denied categorically to have employed any of the appellants on monthly basis. After hearing both the appellants and the respondents, the trial magistrate dismissed the reference in that the appellants were casual labourers, paid daily, thus they deserved nothing more than what they had been paid. The appellants were aggrieved by that decision, hence this appeal. The appellants preferred three grounds of appeal, namely: 3 1. That the trial court erred in fact and in law by holding that the appellants were not permanent employees. 2. That the tr~al court erred in fact and in law by holding that the termination of employment 3. That the trial magistrate erred in disregarding some of the evidence produced in court. During the hearing of the appeal, the appellants appeared each on his own capacity while the respondent was represented by Dr. Lamwai, learned advocate. The first appellant submitted that their case was that of under payment but the trial learned magistrate decided the case on the basis of what the respondents advocate said. He finally said that the respondent had been telling them that what they had been under paid would be paid to the them by NSSF, a fact which was not true. Omari Mwinyigoha, the 2 nd appellant submiued that their case ought to have been determined on the basis of the labour officer's report but it was not the case. The 3rd appellant Pazi Ally repeated what 2 nd appellant had submitted. In reply to the appellant's submissions, Dr. Lamwai, learned counsel submitted that the appeal was in competent because the report to a magistrate by the labour officer did not disclose as to how he 4 reached to the amount of money he stipulated, but he only showed the so called under payments. No evidence as to how he reached to that amount. However, the labour officer, in his reference to the magistrate, he attached an annexure to the effect that the appellants were paid above the minimum wage, which was shs.1,600/= per day. · They were paid shs.1,850/=. Thus they were not under paid, yet he computed the alleged under payments in accordance to what the appellants wanted. The appellants had complained of the framed issue, that it dealt with issues not referred by the labour officer to a magistrate. However, the framed issue was in accordance to the facts in dispute based in both the reference and the reply to the reference. On that basis, the court was to determine first the nature of employment which had consequence to the claims. The trial magistrate on the basis of the terms of oral contract of service exh. DI, the appellants were daily payee and on the attendance register, it proved the fact that the appellants were daily payee, though they refuted it in court. The facts became confusing because the appellants were given paid leave. However, why they were given paid leave did not change their terms of employment and there was no any evidence to that effect. I am of 5 the considered opinion that the appellants did not understand the terms of their oral contract of service because they might be very happy to get an employment any way and other things came because they had been refused any more works which was referred as termination of contract of service. But Dr. Lamwai, learned counsel submitted that there was no issue of termination of service because the appellants were not paid monthly and that each of the appellants, on cross examining the defendant, they all cross-examined him on terms of employment and no one raised an issue of underpayment, and therefore, the trial magistrate had ruled on the basis of both documentary and oral evidence that the appellants were daily payees and not monthly paid employees. It is further submitted that the decision of the trial court having been decided on the basis of documentary exhibits D 1 & D2, which were not objected to their production, then the appellants could not be heard to complain. I agree to those submissions. The framed issues were in accordance to the pleadings filed and thus, the trial magistrate did not error, either in law or in fact as far as the terms of employment of the appellants concerned. 6 I also agree with the respondents that the trial magistrate did not ignore any evidence by the appellants. I don't hesitate as I have already said that the appellants had been outsmarted by the respondents from day one, so that it is too late to argue over spilt milk. The fact that issues are framed on the basis of the pleadings, and on the documentary evidence, the appellants were casual labourers in the sense of the term that they were paid over and above the minimum wage authorized by the minimum wage board. The appeal is accordingly dismissed. No orders for costs are Coram: LP. Kitusi, DR/HC For the Appellant - Present except 2nd For the Respondent - Dr. Lamwai Cc: Livanga -1 7 Court: Judgment delivered in court in the presence of 3 appellants and in the absence of 2 nd appellant. Dr. Lamwai for the Respondent. In court this 24 th day of November, 2006. I.P. Kitusi DEPUTY REGISTRAR - HIGH COURT 24/11/2006