20151009 TZHC Mbeya4

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR COURT ZONE CENTRE AT MBEYA REVISION NO. 32 OF 2015 BETWEEN ./ \ 1(0 IV1 BO ALL'Y SIN GANOS ........ ••...... ......... ..... ...... . SAPPLICANT " VERSUS A BARCLAYS BANK TANZANIA LIMITED......S...W..W RESPONDENT -* JUDGEMENT 7R/09120 1 IT Pv 0,911Q12015 Abd, The application is rnade:under Rule 24(1),(2)(3) and 56 (1),(2) of the Labour Court Rules G.N No.,i0 of 2007(to be referred as Rules in this judgement). The appllcantcal(s upon this court for the following orders; ( \, ' 1. That' isF4bhodabIe court be pleased to call for and revise the ring" na by the Hon Deputy Registrar S M Chikoyo in the Execution No 20 of 2011 between Kombo Ally Singano and Bardays Bank Tanzania Limited dated on 28th April, 2015 and the copy of ruling received on 30th April, 2015 on the ground that the said decision contravened the import embodied in the main decision made by Hon. Madam Judge I.D. on 18th I 11 June, 2014 hence it was illegally and erroneo -n an in disregard of the provision of the law. 1 2. Any other relief's as the Court may just to grant. On 18th June, 2014 the court delivered Judgement which revised the CMA Award and ordered the applicant be paid 12 months salaries compensation, 15% house allowance from the date of termination to the date of Judgement as well as other entitlements to witØlea notice and severance pay. The applicant filed application for*econ ich was before Chikoyo, Deputy Registrar (DR), (as she thejwas). 1% respondent paid the applicant by depositing in the applican QJnt the sum of Tshs 33,886,555.90/= which was approved by ThTapplicant alleged that he was supposed to be paid Tshs.•1.0680157.72. Dissatisfied with the DR's order the applicant fUel this rvistoF ' During the hearing partie.wererepresented, the applicant was represented by of Mr. AkytÔ Advocate and Silvester Mgalla from TUICO while Mr. Tazan, learned.cdüèlrepresented the respondent. 1. The applica r grounds of revision as reflected at paragraph it in support of the application, to wit; eputy Registrar erred in law and facts for failure to e and differentiate the amount to be taxable with regards nzania Revenue Authority taxes calculations and Income Tax Laws. (ii) That the Deputy Registrar erred in law and facts for delivering a ruling infavour of the Decree Debtor while the compensation of 12 months remunerations paid and other benefits did not consider 2 - the decision delivered by Hon. Mada . ted on 18th June, 2014 and the Employment and bour Relations Act, 2004 interpretation. That the Deputy Registrar erred in law and fact to determine or calculate the amount payable under a decree in lieu of the compensation and other benefits of the empe whi1oh is not the position under the current law. V That the Deputy Registrar misdirected bherself ihw and fact thus failing to analyze the evidence terFdhy the . representative of the Decree Holder which clearly é'dn tfi-e interpretation of the provisions of the law and êeñof the Hon. Madam I.D Aboud,J. , I I Arguing in support of the apignJ'Mr Akyo, Advocate on behalf of the applicant submitted ththe Deputy Registrar (DR) failed to consider the calculation made equation of the Judgement delivered by this court on 18/6/2014;He said the respondent did not comply' with the court otda to applicant the award of 12 months, 15% house allowance;ftor'4atébf termination to the date of court order, leave, notice an1Leve'rapj. Mr. Akyoo further contended that he filed application for execution%here the applicant claimed Tshs. 106,580,155.70/=. Mr. Akyoo sui'mitted that before hearing of the Execution, the respondent (decree debtor) surprisingly paid the applicant (decree holder) Tsh. 33,886,555/90 through his bank account without any consultation as to how the respondent reached that amount. It is Mr. Akyoo's submission that 3 gDPY Registrar failed to consider the Mr. Akyoo submitted further that in calculating 12 months' salary the judgement decree debtor relied only on the basic wage only contrary to Section 40 (1) of the Employment and Labour Relations Act, No.6 of 2004. Mr. Akyoo said, at the time of termination of the applicant4?hibasic salary was Tshs. 2,197,180/96 and full allowance at the $fshs. 3000/=, Airtime allowance Tshs 150,0001=, House allowpce TsTht4 329,577/14 which made the total of Tshs 3,060,7581=. Thethe applicant ought to be paid the total amount of Tshs. 3,060,75. 3i2 mths equal to Tsh 36,729,97/25/= plus Leave Tsh 11831,881f40/=, Notice Tshs r- 1 ,..,.. ••.' 2,366,376,/88/=, severance payTsh 4140, 1.59/54/= and house allowance Tshs.15,160,548/44/= which briig the ttä1'of Tshs 70,229,066/5=. Mr. Akyoo further said in ap!icatiGFf6r execution the applicant made calculations basing on tl - cirrent salary which is Tshs, 4,488,33/33 per month times 12 mopthswhicti brings the total of Tshs. 106,580,157/=. On to isvof. tax'r Akyoo .contended that the respondent violated the provisionqf St1diT 7 (4) of the Income Tax Act (cap 332 R.E 2008) and further,79aid7t, respondent did not provide the applicant with any evidénçe hdNhe reached the amount of tax deduction as well as the receipt t5rove that the respondent paid the said amount to IRA as alleged. In reply Mr. Tazan counsel for the respondent submitted that the Deputy Registrar In charge did not error in law in ruling that the respondent has satisfied the decretal amount to the applicant (decree 4 ,1 - holder) and he said the fact of Tshs. 70,000,000] - o art of the proceedings on the tax deduction. Having gone through the available records of the CMA and parties submissions I find the gist of this application is calculations of the award according to the judgement of the court dated 18/06/2014. According to the records parties clearly conteste4on Pnputatjon of the entitlements of the decree holder in various issu (Ike, wh ,amounts .v to remuneration, the rate of salary compensatiopayable1tç. the decree holder is it the last rate the decree holder was receiviqigefore termination or the current salary rate payable to the empl yl¼f the same position? The established principle in law , is liat)the duty to decide the quantum payable under a decre is tt .pfthe trial court and in case of labour matters where the award Was mà'de by the arbitrator the CMA has that duty where the dispuinvolves matters of facts which need to be proved. This being an appellate court cannot receive evidence to prove the ',.... ,. •c'. alleged facts at tbis stage. :This is the position in George Mapunda & 4' . Another vs. DAWASCO I Revision No.1 of 2014 at Dar es Salaam (unreported}wjiee Hon. Rweyemamu, J (Rtd) held that; S %"...LCgistrars have no jurisdiction to determine or calcMate the amount payable under a decree. Their IV duty is to enforce the decree as it is". Under the circumstance of the case at hand I find the Deputy Registrar In charge exercised jurisdiction not vested in her under the law and I set aside her order. Therefore this file is to be remitted to the 5 Commission for Mediation and Arbitration thepe computation of the award issued by this court in 'vision No.65 of 2013 between the parties herein. Arbitrator is to compute the award including remuneration that the respondent is supposed to pay the applicant as per the coyrt order and according to theEmployment and Labour Relations Act,o 6f20O4 It is so ordered. kW '. LI Date: 09/10/2015 Coram: Hon. I.D. Aboud, 3 Applicant: Present For Applicant: Mr. Mgalla, Advocate. Respondent: Absent For Respondent: CC G. Mushi Order: Judgement delivered on 09/10/2015 in the presence of Mr. Mgalla, learned Advocate for the Applicant and the àpplièant himself. Respondent is absent. 2' LD JI 09/: U 2i vAc0 P 4 $' 7