19880528 TZHC Mbeya

IN TIOP, HIGH COURT OF TAI'7.1A AT LIBEYA (DC) CIVIL A P P E A L NO.11 OP 19; (Prom the cIocision of the RN's Court Mbeya, CiVil Case No, 41 of 1986 Before EOM,K. Mmilla, Resicont Magistrate) 1 /JBEYA REGIONAL TRADING COMPANY LTD: : : : : : APPELLANT v e r s u s :BYAMUTGtJ V. MTOKA : : : : :. g : .: 1E.PONDENT J-TJDGIvNT 1OSO, J. .. The respoidnt is a former empIyè of the.appeUnt Company, the Regional Trading Company, Wbeya or R.T.C. in sort, He was summarily dismissed but the I'inister for Labour, ct1ng under Seo.oz 40A (3) of the Security of Emp1oyinen Act, 1964, rd.erea his reinstaterient On the other hand, the appellant zorcised his option under sub—section (5) of: Saioit 40A cite(.ab &by refusing to comp1 with the order of reinstatenent The respondent accepted certain yrnents which inluded statutory compenaton, twelve mon1 pay as stipulate.dinsuhsec.tioia (5)'o±' Section O.A, read together with Section 35, of the Security of Employment Ict, l964 arni payment in lieu of notice He, however, still felt agr:rv'd and brought an actiñ in the Cou of Resident Magi rae ç. Mbeya In the suit the respondent claimed, inter çlia Rhlllmgs 90,3181= as salary arrears, arearo of leave pay, fares to and from his home and other incidental expenses. He also claimed damages for breach of contract of employment, The trial court awarded Ium the amount of s]lLlllngs 90,318,1= as indicated above and shiliings 669,600/= being 'enera1 damages at the rate of shs3,lO0/= per month for 18 years The 18 years was considered the temaining period to his retirement age at 55 years. In itsrnemorandum bf appeal the appellant compay contend•ed that the trial court had no ris(Lctlon to entertain the suit, Alternatively, it was contenied that since tie respondent had been summarily dismissed on 30/9/82, he was not entitled t or ' payirent of. (arrearsof) salary. The award'fo' gen.ra1 dariages has also been challenged. Counsel for the appeifärit confined the issue on the jursdicti.on of the trial court to the quaiun of general damas awarded, Under Section 41(1) of the Iiagistrates. Gourte Act, •l984,read togethar with section 40(2)(b) of..the same Aot, the pecuriary ,jurisdiction of .the-CQurt ofResidentMagistx'ae in roceedinys of the kind now under discussion is shil1ing 200,000/, The tria,1 court, in th 3udgrnent, awarded general damaes of T. Sh,669,OD/, which was clearly in excess of its jurisdictioli. Th-i particular ground of appeal, therefore, iicceeds I from the trial cort record that the respondent was aid half his monthly sIarr for the peod October, 1982 to Aiust, 198 lnthe suit the resondent claimed, and wa awarded by the trial court the other half salary for the same priod. Was this award good in law? This _questioxi revolves on the effect of the ~ ' - order of 'éinstatement whbh*as made by the Miister 0 In the first place, tt th.t the appellant company paid the respdent rI Ofober, 1985 arrears of half . salary for the - whole periôd.f O&€o1er, 192to September, 195 aspart of his 23 terminal entitlement, suggests tLIfG the respoent was treated as having been suspended on hal/:'ji duty durizig,that period, It : would follow logiöally that afte tè order of zeinstatement the respondent would be entt.1edto the remain4,n half..f his salary for the whole period in que:±on,. Even if the assumptibn I bade above the; respondert hd been suspended on half.pay were thougI4 uuivade, the fact . that the Minis -per ordered reintatethent othé spondnt wouid, of necessity, entitle him t o fullay dirirg the whole period, before . the order for reinstatement was made. This is becaee to reinstate an employee has the effect. Qf restoring to i&m all his rights 33 and duties under the contract of emponent, as if he had been in continuous employment upto the date of renstatement This proposition conforms with the roision of sub—section (4)(a) of Section 40A of the Secu.bity of Employment Act, 1964, There it is stated that where the Minister orders the reinstatnt of an employee "the employer shall reinstate the employee in s former 3 employment and such reinstatemen shall have the effect for the purposes of the payment of wages, entitlement o ca veranoe allowane and other retiring benefits, and otherwise in relation to any benefits of employment from the date of termin ion of the exnploye' employment or his dismissal, as the case may be .., This view also.finds support in a decision of this Cotirt -. TANZANIA HARBOURS AUTHORITY V. VENIELIN LGR, Civil Appeal No8 of 1986 Dar es Salaam Registry (Unreported) 0 In the case citQ the respondent who was facing a criminal. charge wan suspended on half—pay by the appellant employer. Subsequently he was acqitttel of the charge and was reinstated in his work, He sued for the ,9 other ha'f of his salary which he had not been p - Ld during the period he was usijended -'ëferiI- i( tb the ase of i'.ASURES BROTIR LTD. Vs, LASLTRES (1910) 2C;H. 248 heldthat ncethere is reinstatement I.It1 contrt of oI1,)1o3r,-.qent (s renewed with all it incidents, Poxhajs ; tue word "renewed ued• Lv the learned Principal Judo may cause some a ibijuity. I would therefore say that all the inOi.dents of the contract of' qmp' onaent are revived for te whole. he, reinstaterrTen, The award. fQr the half—salary ustifiahle. .. AltIuouh the resondent was paid fare and baggage from Mbeya to his home distri . ct in Karagwehe cla1med diac as warded a tot± of (8 9 190/ + 2,2201=) 10 9 410/=, This awaid.,was,hot supported br evidence, No •r.ecipts wer?. produced to sho that he spent more tha he . had been paid to traelnd oit his baggage to .Karagwe 4 So, this•amouat is.to be dedu.cied from the amount.of shillings 90,318/= wiicn -the trial court awarded the respondent. ina1ltiere is the.qubstioh of whether the respondent was $titled to any damages for breach of contract 0 Mr, Batoyun. for the responiit arg'ed that when the appe1i' Company acte.. nd.er subsection (5) of Section 40A Of theSecurity of Emp1ocnt Act;'164 it must be deemed to havwohgfuUy dismIsseJ the resondent. He relied on section 27(2)-mof the Security of Em:4oymènt Act, 1964 and on the case of PETER NDOND Vs. TANZANIA SPOE C0FiPANY, LT(Miscellaneous Civil Cause No.9 of 1986 of Dar as Salaam Registry unreported,for that .roposition, IL With respect, the proposi'tiun is wrong. In refusing to reinstate the respondent as per the order of the Minister the appellant had exercised an option which is authorized by law - subsection (5) of Section 40A of the Security of Employment Aot, 1944 Once the appellant complied fully with the requirements stipulated therein it cannot be gainsaid there was wrongful dismissaL To know if there was a breach of the contract of employment one has to look at the letter of appointment and äny.other•documents which contained the terms and conditions of employment. A copy of the respondent letter. o.f appointment which was produced and admitted into evidence at the trial categorically stated that after he (the respondent) was confirmed in his appointment "either side may törmináte theappointment by giving three months, notice or payment of one month's wiary in lieu of notic&' Item 3 on a document listing down the terminal benefit-'to the iespondent filed in the trial court record shows that he-wag paid shillings 2,583/50 as pno month salary in lieu of notice. Thoreforea the appellant bad complied with the terms of the contract of employment and the bomplaint that there had been a breach of 1 -the contz'at was kbl There has been. some arguments whether the issue of general damages (which really boiled down to one on antici'pated.wages upto the'age of retirernèn'b) survivodto the end. of the trial.. I have tone through the trial court procce.inge and I am satisfJed that although at one time the respondent said ho was droigi, it was subsequently revived and both counsel addressed the issue during 'their final submission. The question 1 have to ask myseJ.f now.&s whether anticipated wage earnings could he awarded in this ease. In answering that question I have to ons'idor first the effect of subsection (5) of Section.40A of the Securtyof Employment.in this connection and second, whether the contract. of empJ,oyment into which the parties entered could justify such n award. Ih oonsidering.ono of the effoct of subsoction.5) of Sectioi 40A of the Security of Employment Act, 194 Mapigano, X. in the Peter Ndonde case said "All that I understand is that the componsat&on are designed to mitigate the impact of the istross of an onployee so circumstanced (thah is, who,,-,i the employer refuses to reinstate) I and. chooses to pay him compensation under sub- section (5)(b)). Parliament ralized, as I do, that in the majority of casesit takes some time for such an employee to secure another employment 0 The compensations are intended to enable him to have a reasonable means of livelihood during the intorvning period". I share those views of Mapigano, J.,in the sense that Parliament realised that a person whose employer refuses to take back into his employ usually does not have any other remedy aaAinst his employer 10 except those provided for under the subsection. That voiild explain why Parliament stipulated nar—punitive sanctions against the employer. I do not however agree with the further view expressed in the Peter Ndonde case that the former eniployoe is necessarily e?ititled recover the estimated pecuniary loss roslting as a reasonable and probable consequence from the preniatue determination of his employment0" I find the following words from Haisbury's Laof England, 3rd Edition, Vol. 25 at page 520 of guidance. Thez'e it is said "To entitle the servant to sue for damages two 20 conditions must be fulfilled, namely- unless the contract of service isto be construed as a oontract of life or;p&yment, or as cxcludin' any general powo' of dismissal on notice the servant nxust have been engaged for a period fixed, or determinable upon notice, and dismissed before the expiration of the period, if fixed, or without the requisite notice, as the case may be; his dismissal must have been wrongful, that is to say, without just causO or excuse on the part of the mastr!. Now, in th? case on appeal before mc, the controt was not of life employment, or for a fixed period and although" no requisite notice . was given, there was payment in lieu, as per the: terms of the eontract Secondly, the employer utilised an option autho'ized by law in terminating or, rather, in refusing to r?instate th espondent. For those reasons, I am unable to follow the deQision in the Peter Nonde case on this issue 0 I hold that there wa no legal justification for the award of the eneral damages, even if the trial court were to 40 have jurisdiction (of course, it did not have) to award the amount of shillings 669,600/, as probabla ftthure earnings from salarics I quash that part of the low'r court Jacision1 -6 - In effect this. appeal succoods ubstànti'y. Grounds (2) and (3') f .tho mombrandumof appeal, however, fail. The appellant shall be .ontiticd...to two thirds (*) of the costs hero and in the court biow. J.A.MROSO At Iylbeya 0 JUDGE - 28/588 Uwangolo for appellant, and also holdir' lBatoyunga for respondent. 0 JAM/ATM'lirna.