19810325 TZHC Tanga

r IN THE HIGH COURT OF TANZANIA ... . - AT TANGA MISC. CIVIL APPEAL NO., 3 OF 1980 From the decision of R.M. 's Court of Tanga (DIstrict at Tanga - RM EMPO CAUSE 110.4/78 Before: W.N.B. Kapaya, Esq0 R/Magistrate SAUNGINWITA.......O.O...O..APPELLANT (original Plaintiff) versus 1ANAGER 9 TANGA NURSERY SCHOOL - RESPOI1DENT (original Defendant) Sisya, 3':— ... This is an appeal by'the piain1iff from, the judgement and order of the Court of the ResIdent 'Magistrate,Taiga. The plain- tiff (whom I shall henceforth call the appellant) claimed from the defendant (whom I shall hereafter call the respondent) a total amount of Shs.6,478/='.'re'i5±'esenting arrears of wages and ovortie, payment for a period of eighteen months 1 ranning from 24.3.76 to 5.8.771 inclusive. 'He failed"In his clairri 'This appeal is now against the dismissal of that claim and the whole judgement of the Court '.bçlow The" established facts sho' that the appellant' was employed by the defendant institution as a watchman at a monthly pay -of Shs.380/=. He 'was also entitled to overtime payment at the rate of Shs.14/60 per diem whenever he reported on duty on Sundays or public' holidays. On 5.8.77 he was dismissed from service. He was paid, through the Labour office Tanga1 a total amount of Shs.8641= which included scvei'ance allowance .(Shs.228/.).., oie mpnth 4 o pay in lieu of notice (Shs.380/=) and leave, pay (Shs.25 6/). The case for the appellant was that throughout the relevant period he was being priderpaid; sometimes he:.was'paid. Shs.270/='er month, sometimes Shs.200/= and sometimes as low as Shs.l70/= p mensem. He denied ever being paid for all. the overtime work'ich he performed throughout the rclevait period. The respondent di$—. puted this and adduced oral and documentary evidence, viz the evidence of Pavinda Singh (Dwl) and petty cash vouchers, Exhibits 2 Dl, D3 and D4, to the effect 'that the appellant was pid all his wages in full inciMing overtime payment. Exhibits Dl, ]3 and D4 bear the appellants signature and. the'y''cOier the whole relevant period etcet the moiths of April to August, 1976 9 Iflclusive, whose potty Oash vouche's, according to. DW1, got msp1aced,. The 1ea'nod, trial Magistrate framed only one substant.ve ismie, namely whether or not the app'1cànt was underpaid during theoriod in question On the evidence before him he did, not hesitate to answer the question in theaffirmative. In coming to the conclusion'which he did in the case the learned Resident Magistrate appears to have been appalied:by the appollahtts willingness to allogo underpayment throughout the relevant period whereas there are documents signed by the appellant himself show- ing that, save for the five months out of .,the eighteen, he was fully paid. . At the same time he, i.e. .tho:loarned Magistrate, accepted the word, of DW1 to the effect that petty cash vouchers on which the appellant signed for his payment during the five months under qu.er.ry were misplaced. On a preponderance of proba- bi].itles and in all circumstances of the oas,e ,I \ am not persuaded that the learned Resident Magistrate erred, in coming to the con- clue ion which he d,ia in the case 0 The position would.. perhaps have been different had the appellant alleged that'.he:.was,undor- paid daring the five months whose petty cash vouchers were.miss- ing because some reasonable doubt would, then have been cast on the word of DW1 that the said vouchers had been misplaced. Why, one would then have been ôntitled to ask, these five vouchers in FA particular? But as the position stands the appellants bona fides in his claims are very much in question whereas the toshmony of DW1 on this' aspect of the ôase stands out loud: and clear. At this juncture it may not be impertnent to observe that exhibItD3 dated 5.8.77 which the appellant signed clearly shows that the paymentthe'reon,was the last as he was dismissed from duty. The amount shovjii was 'transferred from Exhibit D2, a receipt 'issued by theLabdur,Officer who received, the monor on behalfof the appelI ant. Exhibit D2 describes the payment as.Tt'ermina1bo1efitsV? whic1h, in the circumstances of this case j is stnonymous with "last : payment." In his memorandum of appeal the appellant raises several points,all of which are based on misconceptions. T6 mention but - :. ... 3 ie • a few, the first is that-the proceedings in the Court below were a nullity bóauso they pr6ceeded after an e—pa±'te judgoment had been set aside after the prescribed peiiod of limitation. The record of proceedings of the lower Coiirt tells the lie of this. The application for an order to set aside the ex—parte judgement tqhich the appellant is talking about was filed, fifteen days from the datothe respondent, knew about the ex—parte judgement. The • S pecribed period of limitation in such cases is thirty days. Secondly, the appellant castigates the learned. Resident Magistrate f or not permitting his, i.e. appellant's, attorney to represent him during the hearing of the case, S As can be gleaned fror thd reôord.it seems one Rogers Barwani, who held the appella -1t's pOwer of attorney was permitted to address the Court on a few occasions before the hearing Of the suit. Without beating about the bush, this was wrong. In so far as the appellant himself was present and in Court and the said Rogers Barwani was not an advocate duly engaged by the appellant to represent him the so—called attorney of the appellant had S absolutely no locus stand.i before the Court. Finally, the appellant contends that someone else other than DW1 who described himself as treasurer of the Tanga Nursery School, the respondent institution, ought to have given evidence on the respondent's side in the case. Prima facie, this sounds• rid.icu- bus. In so fat' asDW1 was conversant with the facts of the case s which indeed he was, he was both a competent and compellable witness in the case. The rest of the points hardly deserve any . mention. Suffice it to say that for the reasons given this appeal fails and it is hereby dismissed with costs. (H. F. D. Sisya) JUDGE 25/3/81 e