1980 TLR 65

ZUNGUMWANA v. THE MANAGER OF SODECO- SONGEA (KrsANGA, J.) 65 SAIDI MZUNGUMWANA v. THE MANAGER OF SODECO-SONGEA (KrSANGA, J.V SAIDI \ MZUNGUMWANA v. THE MANAGER OF SODECO- SONGEA \hH10H CouRT OF TANZANIA AT MTWARA (KISANGA, J.)] (PC) ClvIL APPEAL I OF 1916 . Jtt1Cract-Employment-Employee entitled to overtime when contract is silent. L.•tract-Employment-Employee watchman -and his family living on the premises of employer at employee's request and not because of exigencies of his employment-Not entitled to overtime during night unless he proves he was on duty. 1 The appellant sued his former employer for Shs. 10,956.35 being overtime payment owing to him. l'bc lower court disallowed the claim. On appeal the appellant failed to prove that he worked overtime on ~ook-days and nights because he was residing on premises on his own request, but satisfied the Court that !11<~worked on public holidays and Sundays. The respondent contended that the appellant was not entitled '. iv 1>ayment of overtime because the appellant's written contract of service made no mention of payment of ovortime, that the appellant could work overtime and claim payment only if he was instructed to work ovortime. Held: (i) the appellant's entitlement to overtime payment is provided for by paragraph 9(3) of the Rogulation of Wages and Terms of Employment Ordinance (Cap. 300) made under s. 10(3C) of Cap. 300 n,nd published as G.N. 152 of 1972; (ii) the appellant cannot contract out of the statute which expressEy provides for payment of overtime lo respect of such days; (iii) where a contract or"employment makes no reference to services on rest day or holiday rite appellant u.pon proof that he worked on such days becomes entitled to a remedy under the genei:al law of contract under ~- 70 of the Contract Ordinance (Cap. 433) or the rate prescribed in the Regulation mentioned- (i) above; (iv) the appellant's claim fell within the provisions of s. 70 of Cap 433. ' Appeal allowed in part. Case referred to: <I) Lalil Naran v. United Construction Co. Ltd. [I 968) H.C.D. n. 4(13. 66 TANZANIA LAW REPORTS [1980] TLR November 15, 1977. KISANGA, J.: The appellant sued the Songea Development Corporation (which I shall refer to as the Corporation) for Shs. 10,956.35 being overtime payment owing to him. The Resident Magistrate Court at Songea disallowed the claim, and the appellant now appeals against that' decision. • • ' The facts of the case were as follows: The appellant was employed by the Corporation as a watchman as from 1.1.73 and on 15.5.74 he had his services terminated because he caused a fire at his place of work. He appealed, under the Security of Employment Act, to the labour conciliation board but his dismissal was upheld by the board. During the proceedings befoie the board, the appellant also raised a claim .of o~ertime • I payment in respect of extra hours he worked on normal working days of the week and the hours he worked on Sundays and public holidays which amounted to a total of Shs. 10,956.35. The board purported tor entertain the claim but, considering the poor financial position of the Corporation, directed that the Corporation should pay Shs. 2,257 /- only in full settlement of the appellant's claim. The Corporation failed to pay that sum and criminal proceedings were instituted against it in respect of such failure but it was acquitted. The appellant, however, was advised to proceed by way of civil claim which he did, thus leading to this suit. ·The Corporacio11. t:mpioyed two watchmen, i.e., the appellant and one Philip Hiyera. These two ·'worked alternately during the day but at night they were both on duty. This prncedure applied also on Sundays and public holidays. The appellant also had secured permission from the Corporation for himself and his family to live on the premises of the Corporation. On four occasions the appellant completed overtime claim forms and submitted them to the Corporation and he was duly paid an aggregate sum of Shs. 312.60. He claims that subsequently he submitted similar claims verbally but they were tened down. In his defence, the Corporation's General Manager, one Mr. Julius Ngahyoma, vehemently denied the claim. He contended that the appellant's written contract of service which was put in evidence as Exhibit D.1 made no mention of payment of overtime. He said that the appellant could work overtime and claim payment only ifhe was instructed to work overtime. According to him the appellant was so instructed to work overtime only on the four occasions mentioned earlier for which he was duly paid the aggregate sum of Sh$. 312.60. He added that the appellant was not asked to work, and he did not work, overtime on any other occasions because otherwise he would have submitted his overtime claim forms as he did in respect of the four occasions. The learned Resident Magistrate found that the appellant failed to establish that he was asked or authorized to work overtime, or that he did in fact work overtime. The magistrate therefore held that the appellant's claim was not proved on the evidence and accordingly he dismissed it. It would seem to me that the conclusion of the learned resident magistrate was justified as regards the appellant's claim in respect of overtime during the normal working days of the week. It was asserted that the appellant worked overtime at the rate of 63 hours per week and that for the entire period in question he clocked in a total of 4032 hours for which he claims Shs. 7,443/70. But there is no reliable evidence to show how this figure was arrived at. According to the appellant he worked from 7.30 a.m. to 1.30 p.m. and then from 6.00 p.m. to 6.00 a.m. But according to his witness and a co-watchman Philip Hiyera (P.W.l) the appellant worked from 7.00 to 6.00 p.m. in alternate days and then from 6.00 p.m. to 6.00 a.m. each day. The evidence here is so inconsi- stent and conflicting that I am unable to get any clear notion whether the appellant did work overtime and if so for how many hours. The position is made even more complicated by the fact that the appellant and his family were living on the premises of the Corporation at his (appellant's) own request and not because of the exigencies of his employment. Considering the claim of overtime during the night, fot example, it is not clear whether the appellant remained on the premises at night because he was on duty or because he was residing there. In these circumstances I share the view of the learned trial magistrate that the claim of overtime under this head was not proved and should be disallowed. :, However, I hold different views as regards the claim for overtime in respect of Sundays and public holidays. The finding by the 'trial magistrate that it was not established that the appellant did work on Sundays and public holidays is unsupportable. On the contrary there was ample evidence in support of the appellant's allegation. The appellant and his witness Philip (W.l) clearly stated that the appellant was .workini on Sundays and public holidays. The learned trial magistrate took the view that if the appellant had thus worked overtime, he would have lodged his claim in writing for payment of overtime as he did in .the four instances. The appellant said that he lodged his claim only verbally but it was rejected. Even •if I do not accept that the appellant did lodge a claim as he asserts, I find no good reason for disbelievin&. him and his witness (P.W.l) when they say that he (appellant) worked on Sundays and on public holidays. tHAYA HUSSEIN V, OHAN TRANSPORT LTD ANO AN~THER (NYALALI, C.J.), 67 11;.,l\11 point seems to be put .beyond doubt by the Corporat10n s General Manager himself, • • .Oma. He said in his evidence that the appellant was bound to work for eight hours a day from to 2.30 p.m. It should be pointed out, however, that from 7.30 a.m. to 2.30 p.m. is seven hours la:ht hours. Then he went on to• say that the appellant was bound to work for eight hours on Udays as well. He did not say anything expressly about \\·~1ki11g on Sund~vs_ but his stand must be the same that the appellant was bou,,, l to work for eight hours also. Because he was replying ellant's claim for overtime in respect of Sundays and public holidays and I could find no ground or thinking that what he has said about working hours on public holidays is or would be different ··t he would say about working hours on Sundays because public holidays and Sundays were 90th ys for the appellant. Thus according to him the appellant was bound to work for eight hours . oholidays and on Sundays as well.. In other words he expected the appellant to work for eight hours le holidays and on Sundays and he clearly knew that the appellant was so working. So that appellant on the premises for eight hours on public holidays and Sundays not just because he was residing r,emises of the Corporation but because he was bound to do so as a matter of duty and as expected employer. ow, once it was thus established by evidence that the appellant did work on Sundays and on public )'ii then he is entitled to claim payment for it. It is true that for one reason or another he failed to t his written ylaim for such payment as he did in the four in'.\tances. But this is immaterial. So long claim is not time barred (as indeed it is not) there is nothine:. to prevent him from recovering his dues tcr date. His entitlement to overtime payment is provided for by the Regulation of Wages and Terms ployment Ordinance (Cap. 300). Paragraph 9(3) of the Regulation of Wages and Terms of Employ- Order made under s. I0(3C) of Cap. 300 and published as G.N. I 52 of 1973 reads: where any employee is employed on the Statutory weekly rest day or on a public holiday other than Sundays (save where Sunday is the weekly rest day for such employee), he shall be paid in respect of every hour or part of an hour during which he is employed on such day: (a) in the case of a domestic employee, one hundred tenth of his monthly wages; (b) in any other case, one ninetieth of his monthly wages. fno appellant fell under category (b). It is quite cle_ar therefore that if he was working eight hours on public lltOlldays and on Sundays he was entitled under the Statute to be paid overtime. As I said before, the rporation's General _Manager contended that the appellant was bound to work for eight hours on public leo.·.~.·-.,.···.·· ;olidays and on Sundays. But such argument is both misconceived and untenable for the simple reasor. iuit he cannot contract out of the Statute which expressly provides for payment of overtime in respect of' TUoh days. The General Manager also contended on behalf of the Corporation that since the appellant's written Contract was silent on the question of overtime, the appellant could only work and claim overtime if he was I<> asked or authorised to work overtime, which he was not. Indeed on the whole the respondent Corporation did not seem to seek to challenge seriousiy the point that the appellant worked on Sundays and on public holidays, rather it was more concerned with showing that the appellant was not asked or authrrised to wor15: on those days. A similar question arose in the case of Lalji Naran v. United Construction Co. Ltd. {1968] H.C.D. n. 403. In that case the appellant filed a claim against his employer to recover, inter alia, Shs. 2,560/- in respect of work done overtime on Sundays and public holidays. The trial court dismissed the claim on the ground that the appellant's contract of employment made no reference to additional services. On appeal to the High Court, however, it was held (per Saidi, J.) that he appellant was entitled to a remedy under the general law of contract and that s. 70 of the Contract Ordinance (Cap. 433) clearly entitled the appellant to overtime payment if the appellant's contract of employment was silent. The claim, however, failed only because .the appellant failed to prove that he actually worked overtime. S. 70 of the Law•of Contract on which the decision was based reads: • 70. Where a P,erson lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. Provided that no compensation shall be made in any case in which the person sought to be charged had no opportunity of accepting or rejecting the benefit. 68 · TANZANIA LAW REPORTS . (1980) TLR _fn ,order to sustain a claim under this section the party bringing the suit has to prove four assential matters, namely, that: • I. he did render the service or services for which he is claiming compensation. 2. he did not intend to render such services gratuituously, 3. the party being sued did enjoy the benefit of those services and 4. had the opportunity of accepting or rejecting the benefit of those services. i •I have already made a finding that the appellant did work overtime on Sundays and on pu~lic h~lidays. and it necessarily follows that the respondent Corporation did enjoy the benefit of the appellant's services •because he was working overtime for the Corporation. The appellant in his evidence makes it clear that he did not intend to work overtime gratuituously and that he did claim payment orally but he was refused. This contention would appear to be supported by the Corporation's General Manager himself when he said that the appellant was bound to work on public holidays, in other w6rds according to the Corporation's General Manager, working on Sundays and on public holidays was part of the appellant's schedule of work for which he was paid a monthly wage. This statement of the Corporation's General Manager also makes it abundantly dear that the Corporation knew that the appellant was working for it on Sundays and on ,public holidays and therefore had the opportunity of asking him to stop but it did not. I am therefore of ·the view ·that the appellant's claim fell within the provisions of s. 70 of Cap. 433 as· quoted above, and that )t satisfied all the assentials required to sustain a claim for compensation under the section. ft was clearly stated in the evidence that the appellant worked for 20 days on public holidays and 68 days on weekly rest days, i.e. (Sundays). Th.is makes a total of 88 days. Since according to the Corpo- ration's General Manager the appellant worked for 8 hours each day, this makes a total of (88 x 8) hours = 704 hours. According to the rates which were in force at the time as set out in paragraph 9(3) of G.N. No. 152 of l 972 quoted above the appellant was entitled to a payment of .Jo of his monthly wage (Shs. 240/-) per hour. Therefore for a total of 704 hours he was entitled to receive Shs. 240 x 704 = Shs. 1,877/- 90 This is payment for the hours which he worked overtime during daytime only. I could not award any payment in respect of overtime at night because, as I said earlier in this judgment, it is not certain whether the appellant remained on the Corporation's premises at night by reason of his duty or because he was . having his home there. Since the appellant had received overtime payments on four occasions amounting to Shs. 312.60, this sum should be deducted from his total dues. His net claim therefore is Shs. (1,877.00 312.60) = Shs. 1,564.40. Accordingly he is entitled to recover that sum from the respondent Corporation. In the result the appeal is allowed to the extent as indicated and the appellant is to recover his costs in this court and in the court below. • Appeal allowed ~n. part