issa ally vs titus mbilinyi 2007 tzhc 377 27 march 2007

IN THE HIGH COURT OF TANZANIA

AT SONGEA DC. CIVIL APPEAL NO. II OF 2006 (From Civil Report No.19/2005 of Songea District Court) ISSA A L L Y ........................... APPELLANT

VERSUS TITUS MBILINYI..............RESPONDENT Hearing Concluded: 13/3/2007 Judgment Delivered: 27/3/2007

JUDGMENT BEFORE: HON. UZIA J The appellant Issa Ally filed a suit against the respondent one Titus Mbilinyi, his ex-employer who terminated him. The claims among other things were one month Salary in lieu of notice, leave, severance allowance, arrears of wages and overtime. The total amount claimed by the plaintiff against the defendant tallied at Tshs. 1,955,200/=. The respondent denied to have employed the plaintiff, although he owns a shop at Songea Bus stand, but he did not at any time employ the appellant, who used to carry passenger’s luggages, and merchandise for some of the shops at the Bus Stop. It was further alleged that there were six shops in that area which are owned by Paschal Msigwa, Mr. Toyota Mbilinyi, Jomat shop and his shop, so the appellant was contracted sometimes to watch those shops on emergency when their watchman was absent, all used to pay him. Witnesses for respondent testified to the effect that, the appellant was a mere kulii who used to carry luggages for pay. He was sometimes contracted to watch the aforementioned shops. The main issue during trial was whether the appellant happened to be the respondents employee. The trial court found in favour of the respondent, that the appellant was not employed by the respondent, therefore the suit was dismissed, hence this appeal. In his memorandum of appeal, the appellant argued that, the trial court erred

in law when it held that, there was no any contract between him and the respondent, he further contented that, the trial court failed to consider the fact that the respondent admitted before the labour officer that he did employ the appellant and agreed to pay him Tshs. 100,000/= as his terminal benefits (as shown in the labour officers report) but the appellant refused and preffered the matter be decided by the Court. He further argued that he was employed to guard six doors of shops and the respondent paid him monthly, when he demanded hiy pay, the respondent cooked Criminal Cases against him at the police station, being a method of preventing him from pursuing his rights. In reply to the petition of appeal, the respondents advocate vehemently disputed all grounds of appeal, and argued that the decision of the trial court was properly and legally arrived at in favour of the respondent by virtue of evidence tendered in court, therefore he prayed to this court to dismiss the appeal. I had the opportunity of hearing both parties on 13th/3/2007, and in the course of hearing, the parties recapitulated what was in the pleadings. Having perused the evidence in the lower court’s record I found that the respondent and the appellant are people who are living in the same society, the respondent is a shop keeper while the appellant being a labourer who in one way or another come into

contact with the respondent in the course of doing business, therefore they are familiar to each other. When they approached the labour officer over the dispute between them, he failed to reconcile them. The word “USULUHISHI”, in the report, shows how the labour officer tried hard to reconcile the parties without success. The report prepared by the labour officer, indicated that the respondent offered Tsh. 100,000/= in order to reach a conciliation, that amount was not agreed by appellant. It is unfortunate that the trial magistrate failed to evaluate the evidence brought before him by the labour officer, in short he did not direct his mind on that aspect. In this Appeal the issue is whether there was a contract of service between the two parties, if the answer to that is in affirmative, the second issue is whether the reliefs calculated by the labour officer were according to law. Having carefully examined the evidence in the lower court, the trial court erred in law in not considering the labour officers report filed by the appellant through a labour officer. If it should have directed its mind properly on that, it would have not come to that conclusion. In most cases illiterates and non Lawyers prefer oral contracts in most of their transactions, the thing which is quite common in our society, this case is a typical example of such contracts. Having that in mind

the Parliament enacted the law which recognizes oral contracts. The Employment Act,CAP 366 R.E -2002 in Section 16 gives us the types of contract of service, oral contract being one of them, the section provides as follows: “Contract of Service may be oral or written contract” The Act under section 40(1) imposes a duty to employers to prepare and maintain, or cause to be prepared or maintained, a record of contract for every employee employed by him under oral contract of service, other than a casual employee.” There is no where in this Act, where the employee is required to prove the terms of contract. It is therefore a duty of the employer to give a contrary view by providing records of the employee which is prepared by him as it is provided under section 40(2) of the same Act. Section 40(5) of the Act gives a clear picture that if the dispute arises as to the terms and conditions of an oral contract other than a contract for the employment of a casual employee, and the employer fails to produce a record of such Contract made in accordance with the provisions of the section cited, the statement of the employee as to the nature of the terms and conditions shall be receivable as evidence of such terms and conditions unless the employer satisfies the court to the Contrary.” According to the evidence in the lower court’s record, and the provisions of the law referred above, the

appellant entered into oral contract with the respondent and upon termination the respondent offered a meagre amount during conciliation before the labour officer and the matter was referred to court for decision. In this Appeal, there is no doubt that the trial court erred in law for not considering fundamental issues raised by appellant based on labour officers report, he was required as decision maker to consider the effects of the conciliation by the labour officer. I have also considered the calculation made by the labour officer. I find no good reason to disagree with the amount of Tshs. 1,955,200/= which the respondent was required to pay to the appellant as terminal benefits. In the event, and for the reasons stated, I allow the appeal with an order that the respondent pay the appellant Tshs. 1,955,200/= with Costs of this appeal. .R i|h i6 f Appeal is explained. ' 1 'N '> Judgment delivered before both parties on 27^/3/2007

JUDGE