peter mbago vs huruma renming medical centre 2006 tzhc 77 19 september 2006

IN THE HIGH COURT OF TANZANIA

AT PAR ES SALAAM CIVIL APPEAL NO. 8 OF 2005 PETER MBAGO..................................... APPELLANT

VERSUS HURUMA RENMING MEDICAL CENTER. . . RESPONDENT Date of last Order - 1/8/2006 Date of Judgment - 19/9/2006

JUDGMENT ORIYO, J.: The appeal originates from Civil Case No. 69 of 2000 in the District Court of Morogoro wherein the appellant claimed from the respondent shs. 120,000/= as unpaid salaries for the months of August and September 2000. The respondent denied the claim but admitted liability of shs. 90,006/= being leave pay for 42 days not taken in the years 1998 and 1999. The background facts are simple and not in dispute. On the basis of an oral contract between the appellant and the respondent, the former was in the latter's employment as a Clinical Officer since 15/11/95 at a monthly salary of shs.60,000/=. The appellant ceased working for the respondent from April 2000. The reasons for the l appellant to stop working for the respondent are not clear. The appellant testified that he was given time off by the respondent for the period of April, May, June and July 2000. On the other hand, the respondent testified that the reasons were not known why he left the job. Using the services of the Regional Labour Officer in Morogoro, the appellant put up a claim of shs.240,000/= against the respondent being unpaid salaries for April - July 2000. Under a mutual agreement (Annexture "D l" to the Written Statement of Defence) the respondent paid the appellant shs.240.000/=. Thereafter, the appellant submitted a further claim of shs. 120,000/= being unpaid salaries for August and

September 2000. The appellant had alleged that he worked for the respondent up to 20/9/2000 and thereafter he had applied for and was granted a further 10 days leave as per Annexture "PMI" to the Reply to the respondents defence. The trial court dismissed the appellant's claim with costs for lack of merit. The appellant was aggrieved and lodged three grounds of appeal as follows:- 1. The trial court erred!in taking into consideration and accepting as proved the issue of purported pressure exerted upon the respondent, a fact which was never pleaded.

2. The trial court erred by interfering with the contract of employment between the appellant 2 and the respondent.

3. The trial court erred by granting the respondent an extension of time to file final submissions suo mottu and accepting the same filed out of time. The representation was M/S South Law Chambers for the appellant and Mr Kanonyele, learned counsel for the respondent. I have gone through the trial court record as well as the submissions made by parties. I will begin with the third ground of appeal, which questioned the trial Court's exercise of its jurisdiction to enlarge the time within which the respondent was to file its final submissions. The appellant did not state how the extension of time made suo mottu prejudiced its interests. It has been repeatedly stated by courts of law that submissions is not evidence but are mere arguments by parties on the facts and law raised before the court. Submissions are made without oath; and a party is not subject to cross - examination. (See MORANDI RUTAKYAMIRWA vs PETRO JOSEPH [1990] TLR 49). The trial court judgment was based on undisputed evidence that theu appellant stopped working for the respondent since April 2000 and was therefore not entitled to salaries thereafter. 3 Therefore even if respondents submissions were rejected; in my view, the trial courts findings would remain the same. Third ground of appeal is dismissed. On the remaining grounds 1 and 2 of appeal; the only issue for determination is whether the appellant was

entitled to be paid shs. 120,000/= being August and September 2000, salaries. As stated above, there was no dispute that the appellant ceased working for the respondent in April 2000. But through a "gentleman's" agreement, annexture "D l", the respondent agreed to pay him salaries for the months of April - July 2000. By the same agreement, the respondent agreed to pay the appellant a further sum of shs.90,000/= being leave pay for 42 days for the years 1998 and 1999 (see admission in paragraph 3, WSD). This latter sum is still unpaid. The trial court made a finding that the appellant was entitled to the payment; but since the salaries paid for April - July 2000 were illegal; it was held that the sum of shs.90,000/= be off set from the sum of shs.240,000/= already paid. It was also held that the appellant was not entitled to the payment of August and September 2000 salaries because he did not work for the respondent. I am inclined to agree with the trial court's observation that by Annexture "Dl", the appellant was misusing the offices of the Regional Labour Officer. However, in the absence of fraud or any other illegality; the agreement of parties in Annexture "D l" has to be respected by the Court. In my opinion the trial court had no 4 justification to offset the sum of shs.90,000/= from the sum of shs.240,000/=. The respondent willingly agreed to pay the appellant both sums

of money. The respondent repeated the undertaking to pay the balance of shs.90,000/= in its Written Statement of Defence. Same commitment is echoed in the submissions of the respondent at the trial court. The wishes of parties have to be respected. In this connection, I find that the appellant is entitled to be paid shs.90,000/= by the respondent as per Annexture "Dl". However I uphold trial courts decision that appellant was not entitled to be paid salaries for August and September 2000. On the foregoing, the appeal partly succeeds and partly fails. For that reason each party to bear own costs. (K.K. ORIYO)

JUDGE 19/ 9/2006 982 Words 5