20141030 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM (DAR ES SALAAM DISTRICT COURT) CIVIL APPEAL NO. 48 OF 2009 (Appeal from the judgment and Decree of TEMEKE District court in employment Cause No. 11/2009 dated 19th September 2008 Hon. Mnzava PDM) LAURENT THEODORE MBENA ........................ APPELLANT

VERSUS QUALITY GROUP LIMTED .............................. RESPONDENT

JUDGMENT MURUKE, J. This is an appeal against the decision of the district court of Temeke as per Hon. Mzava DM dated 18 September 2008 in employment cause No. 11/2009. The Appeal is premised on four grounds reproduced here below:-. (1) The Temeke District Erred in law and in fact in holding that the appellant though . entitled to . overtime allowance should have claimed for the same before he was declared redundant overtime claimed Tshs. ,· 2,910,648/=. (2) The honourable district Court er~ed in law and in fact in not mentioning anything on the appellant's entitlement to shs 375,,000/= when he had stated that appellant 1 was entitled to the same ex~ept overtime and yet the same nowhere appears in the judgment. (3) The honourable Magistrate erred in law and in fact in granting shs. 150,000/= for transport of luggage when there had been proof of shs 200,000/= as luggage allowance. ( 4) That honourable magistrate erred in law and in fact in allowing 32,00/= transport allowance when the same should have been 40,000/= for four people at 10,000/= instead of 32,000/= at 8,000/=. with no justifiable reasons. The Appellant was represented by ·Law Associates while the respondent was represented by upright Attorneys. The hearing of the appeal was, by leave of the court, conducted by way of written submissions and both counsels timely filed · their submissions. It was submitted for the

appellant in support of the 1st ground of appeal that since under the provisions of section 19(2) (c) of the Employment and Labour relations Act, as well as the repealed Employment Act, the maximum hours an employee has to work per day is 9 hours, an employee who works order hours a day is 2 '' automatically entitled to overtime allowance. Overtime allowance, the counsel submits, can be claimed at any time since there is no law limiting the time for claim of that nature. The counsel concludes by faulting the trial magistrate in holding that the appellant though entitled to overtime allowances could not be paid as the same was supposed to be claimed during the period of his employment. The submissions of the learned counsel for the Respondent in response thereto were very brief. He submitted that ground one of appeal had been misplaced as here was nothing in the judgment of the trial court where the trial magistrate held that the appellant was entitled overtime allowance. Instead, the counsel maintained, the trail magistrate decided to the contrary when she said that the "complainant is not entitled to leave allowance or overtime as they were paid by the defendant". In rejoinder submissions, the counsel for the appellant while not refuting the fact that it was not in the finding of the trial magistrate that the appellant was entitled overtime allowance, submits that there was no

proof at the trial court that the appellant was paid his overtime allowance. 3 My examination of the judgment of the trial court shows that the finding of the trial court on this point was that the appellant was not entitled to overtime allowance as he had already been paid. Therefore, the first ground of appeal, as correctly submitted by the counsel for the Respondent, was misconceived as it was no founded on the judgment of the trial court. Whether there was proof of payment of the alleged overtime allowance or not is a storage ground of appeal which does not feature out in the Memorandum of Appeal. The departure from the grounds of appeal raised in the Memorandum of Appeal is in violation of the provision of Order XXXIX (2) of Civil Procedure Court which prohibit an appellant from urging in support of any ground of objection not set forth in the memorandum of appeal, except with the leave of the court. The issue of proof of payment of overtime having not been found from the grounds of appeal is not before me. I, henceforth dismiss the first ground of appeal for being misconceived. In respect of the second ground of appeal, it was submitted that since according to the letter of termination the appellant was only paid salary in lieu of notice, salary of September, 2002 and NSSF 4 contributions, and because the trial magistrate has held in his judgment that the appellant was

entitled all terminal benefits with the exclusion of overtime, the trial magistrate was wrong in not awarding severance allowance. In his submissions in reply, the learned counsel for the respondent while conceding that appellant was entitled, in terms of section 44 of the Employment and Labour Relations Act, payment of among other things, severance allowances, emphasize that all terminal benefits listed in section 44 were paid. I have observed from the proceedings of the trial court that the termination of the contract of service in dispute was in 2002 when the Employment and Labour Relations Act was not yet in existence. Whether the appellant was entitled severance pay and at what rate therefore should be governed by the repealed Severance Allowance Act, (Cap. 487 R.E. 2002) which was relevant at the material time. Under section 3 and 4 of the Severance Allowance Act, severance pay was available to an employee who had been in continuous employment for a period of at least three months and where, among other things, his service was terminated by the employer. 5 The calculation of the rate of severance pay was covered by the provisions of sections 5(2) and 5(5) of the Act. Generally it was calculated at the rate of 5% of the total basic annual wage payable at the time of termination, for each year of continuous service. Since the appellants had, at the time of termination of

their contracts of service worked with the Respondent for a period which is longer than three months they are entitled severance allowances under the Severance Allowance Act at the rate of 5% of the basic salary of the date of termination (2002) for each of the year they had been in service with the Respondent. It is so ordered. Submitting in support of the third ground of appeal the counsel for the Appellant contended that it was wrong for the trial magistrate to award TZS 150,000/= as repatriation of the appellant's personal effect instead of TZS 200,000/= which was claimed by the appellant at the trial court. The learned counsel has not given any authority in support of his argument. Neither has he referred any evidence during trial to support the claimed amount. With that bare assertion it is more than unreasonable to fault the decision of the trial court. The findings of the trial court, 6 .. in our view, were discretional because there was no evidence in the record to establish the claimed figure. This being an appellate court, it cannot fault the decision of the trial court on discretion unless there is good cause to do so, which is not. In ground 4 of appeal the learned advocate is merely complaining that shillings 32,000/= which was awarded to the appellant as bus fare for four people was not enough. He does not say why it was not enough and what amount would have been enough and the reason thereof. The ground of appeal is therefore completely baseless and is hereby dismissed. In the final analysis, and for the foregoing reasons, the appeal partly succeeds to the extent of the second ground of appeal. The remaining grounds of appeal are dismissed. This being an employment matter I will not order for osts.

JUDGE 30/10/2014 7 Judgement delivered in the presence of Mr. Gift Msuya for the respondent and in the absence of the appellant who is reported sick.

JUDGE 30/10/2014 8