19981119 TZHC Dar es Salaam

(DAR i~S SAT.MN DIS'l'RICT RZGL3TRY) !,-1. D!!• _lp§..JiNd_il\}'!o Cf\!tL ~~ 2s.°6 tq5;' JOVIr~ IZA.LOI\.CL!~o O '-1 0 0 0 DO ·o 0' 0 0 0 0 0 Cl Cl Cl O O., c. ~ ~ O O O O O O _o O o o·~ oI'UI:t-JTBTF AIR TANZANIA CORFOPJtTION o • • • • o • • • • • • • • ~ • • o • • • • o . o .DEFJ'.:I'-i'Di\NT J U D G MB N T Jovin Kalokola, 41 · y2ars old 1.rhen he testified·,' ,,.ras an mnployee of the · defendant from Augl!st, 1983 1 until 15th September,. 1993, when he· war,, informed ; ·--. through Ex.:.7.e P & 5 that he had be011 :cetrcnched~ H;e cons::i.dered th.e retrenchment unfair. So he complnine~ to his employer who, in turn, confirmed ,the redundo..ncy e 'l"'he plaintiff 1 s complaint is based on his career development. He 1,-,ras employE as an _accountant, rising tQ Pri;ncipal Accountant at the time of retrenchment. Hie qualifications include c:,n Advanced Diploma in Accountancy. In 1992 h.e went to . ' Australio. to persue a :!-faster I s DE:groe in business administrD.tiono He returnc!d home nfter gr;~.due.tiono Wh,-,n he inquired why he had· 1)een retrenched while hi3 pee:":' 61/<: or tr·ose junior b) him re'tainecl. their jobs he was in:formed that six criteria were ft. appliedo The critr,ria are listed Hl Ex;:,~ 6 to be~ qualifications, experience, performance, discipline, health, 2,ge ne'Hing retirement, seniority in service i. e first-in- L1st-out1 volunt::,.riness but subject to approval by management .. ~ \ The plaintiff mrni:-e that he was more qualified than ru.1 the accountants who were retained; that he \:Jl:l.S more exp,~rienced than such officers 8.S Justine Kasha.raj Kaaya, and Runje who were r<=tained; that he perfcrme,d well and that ,.=:cs a result he: was promoted to ,senior positions; he was not i;:ndisciplined; that he enjoyed gocid heaJ.th; that he was very youthful and. yet· there were o1der people who were retG.~cn2c'.• .,, '!'· This account has been . . corroborE,ted: - .,. by the testimony :of Luis. Kilua (HJ 2) who was t;:f, Director of Finance bofore he.was axed from employment. The: defcmc8 called ,10 ~iitness. I have consid-2ted the evidence before me ·and L am satisfied that the pla.intiff has made his case. ,The, evidence demonstrates qlfr~,:! clcc1rly that he vms mor2 qua.1ii'ied than any of his c'ontempories, he enjoyed gocd health, he had no bad record of discipline or performance, he was at the yJrime of his working lifeo -IJ1,, these circumstances, the er:1p;l.oyer, had the unanviabl;; burden c:'.'" cGtablishing that the rila.intiff 1 s retrenchment was fair. He has shunned to do th· ·. by declining to adduc:0 f?Videnceo · So the first issue, t.hat is whether the plainti:i i 11as lawfully retrenched is determined in the r:.ege.tive. I now turn to the quantum of damages, which the second issue is all f.lbout. 0 ♦ ' 6 Q O ()(IGO O o/' 2, -0 , . , 1 .,. ,, 2 In hilll suit the plaintiff prays for judgment and decre~ as follows:- 1 -Cn) special da.mages in the s,um cf shso 71+s868,000;' (b) general .damages in the sum of sh.s. 30,000; 1 I (c) interest at 39% per annum (d) costs of the suit. The plo.intiff swe1:u's ths.t the re,trenchment affected him mentally; it necessit )_+ c.:.S 0 'him to rir.g· b.cme (he \F:.1.s in Australia) frequently to scG how his fam,ily fared bec,TuE, ·their livelihood hn.d been cut off as'they depended on his ~alary and all allowancos which ·he had lost. The redundancy so affected. him, he said, thnt he almost failed fr . j '- examinationso It is by reason of these circumstances thc~t ,, he prayed that his clai:~,s i be al.lowed. Damages fa1ling under the h2c>td of spy,_c_ial c!._p.!i~'l.ges_ .are pa.rticubrised in paragr2 :-~- .,. 0 the plaint. They are constituted by s::::~lD.ries o.nd nJ.Iowances he expected to ,2::..r~· _ until he retired. Mr. Ndanzi, leo.rned counsel 'for the,'.,~ .,_.,. : ....... v·,fr,nd•rnt -~ ... .J.... ' contends th:.:tt th:iB claim be disallowed bec,:rnse the plaintiff aid the dcdeP;-dar.t never entered into o. contract i-1hich guaranteed eimploym,mt to the pla':~ntiff ·'until ho rc,tirod ,-,hen he I a:ttainc➔ d 55 years of nge. He was 2..rgued thot C'l2-:olaw ;;1e have hc-ts conclusively esto.1=1'. • I shed thot according to J.abour-nw.n,:tgement relotions pr:J.ctised in H,is country 1 contrc.'.:·i for employment r:.re .not for a life time. On the other hn:!1d, Hr. Rweikiza contends ti: the pb.inti:[:'f is entitled tc-, thos~ d,3mo.ges bec,3.Ufie this' j_3 ·,1hat this Court enid in ' ,, NaiJ1:..e,t Le10nard~o V._N:.:,tiom.l }\~ultr__;y_ Co. Lj;d (Cit:,tion not given). ' As I have indicated earlier there is no roc-;;1 on t;11e. nc:1ture of the e-ontract of ,service~ The Court of Ap:pe2.l seal0d this controversy ':in T_~ik~BlE:i~..e )"twai1:1_or.:be_::> I'-'i~J!?·~ I ~ " ~ Tradmg ~o..!. ~c , (CA) Civil Appeal Ho. ·I. 15 of 1990 when it was t dyd, Oroc.ri, J. A., that:- l1 This is clearly not a contract of service till one reaches the o.ge of 55 7 nor does it,s termim.tion entail the compulsory payment of the :remo.ining period to the rct ireing age of 55 yes.rs ••••••• 11 e Thr,t is the law 0 Let me a.dd here thc:1.t Kato' s case do~s not give room to the propo- ·------- !( sit:i.on that tl:e plaintiff is entitled to empJ.oyment benefits until he retires. It was held thc.t he~ was entitled to wages between the date his employment ~1as terminated . . -~ and-the date of his re-instatement. In fact Kc::!.?~ case can be di,stinquish8d from the. instant case because in the former cD.se the emrJ16yee sought re-instateme:nt, whic". he got. This head of d:J.rnages would, there fore, foil. I have found that the retrenchmE,nt of the }Jlaintiff \•ras wr?ngful. Considering th0 &nguish arid ernbarrassri1ent he got wh8n his employment was brought to a.Il uhe:xpectec end, th,::re is ju.stification for an awa.rd of general damages. ~:he plaintiff claims shs. 30,000,000 und,~r thi.s head. In my assessment a sum of shs. 20,000,000 with sirnplt) inter,:::st at .3196 from the datr.:: of the suit to the dat~ of judsrment and ~ . at 7% on the decretal amount from -thE: d.s.te of judg1nent until the decree is fully satisfied will meet the justice of this case. In the r2sult I enter judgr,ieYit in favour of the plaintiff and I award him g:sn,::r. dc1.mag('"s in. the: sum of shs. 20,000.000 with simple interest at 31% and 7?&, rc,,spcctivs> as h0r(,inabove .stated. The plaintiff shall have the ta:,ed co,st,s. Jc T•'L, iv1acl(a._nja, ~~u}~E. 19/11/1998 Mr. Rweikiza, Advocate For Plaintiff Mr. Hdanzi, Advocc1te For Dcfondant