20071211 TZHC Zanzibr

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR {CORAM: MUNUO, J.A., KILEO, J.A. And KALEGEYA, J.A.) CIVIL APPEAL NO. 48 OF 2007 1. SEMENI JUMA KHAMIS ] 2. FATMA IDDI JUMA ] .................................. APPELLANTS VERSUS QURBAN WAL.JI ................................................... RESPONDENT {Appeal from the Judgment of the Industrial Court for Zanzibar at Zanzibar) (Mshibe, J.) dated the 14th day of February, 2007 in Industrial Court, Civil Case No. 21 of 2006 JUDGMENT OF THE COURT 5 & 11 December 2007 MUNUO, J.A.: The present appellants namely: 1. Semeni Juma Khamis And 2. Fatma Iddi Juma instituted Civil Case No. 21 of 2006 in the Industrial Court of Zanzibar .••,..~,.=•co at=Mambo -Msiige-+n ~-Zant:i ba r--in--wh ich- they, clai-medo-J:r:0m.-tl1eir"". . ex.--= = - ~ ~ employer, Mr. Qurban Walji; (i) maternity leave payment; (ii) payment of all their benefits for the period they worked for him; (iii) costs of the suit; and (iv) any other relief deemed fit by the court. 2 The appellants first lodged the employment matter in the Labour Office at Zanzibar in vain so they filed the case in the Industrial Court. After adjudicating over the matter, Mshibe Ali Bakar, J., on the 14th February, 2007 ordered the present respondent to pay the appellants the sum of T.Shillings 315,000/= terminal benefits for the 1st appellant, and T.Shillings 95,000/= terminal benefits for the 2nd appellant. The record of appeal shows at page 29 that the respondent paid the 1st appellant a total T.shs. 318,000/= and she signed to acknowledge receipt of the said money on the 2nd of March, 2007. On the same date, the respondent paid the second appellant the sum of Shs. 100,000/=. The appellants received the money in ' the presence of the Registrar of the High Court of Zanzibar, Mr. Abraham Mwampashi. Although the appellants were paid in execution of the decree of the trial Industrial Court, they -were not .......... ·... .. -c,-,_ cc=--- .. . -,- . ··· ,,_ . . •·• -- ___ , ·cec--,=~·· ~· · -··, .· ,- --~"- satisfied with the decision of the said court so they preferred this appeal. The parties appeared in person. The respondent.who said he is not well versed in Kiswahili, had his son, Mustafa Qurban, as an ' 3 interpreter for him. The latter was affirmed to interpret from Gujerat to Kiswahili and vice versa. The appellants filed 5 grounds of appeal contending that the learned judge should have· ordered the respondent to pay wages for overtime for the days the appellants worked on Sundays, Saturday? and public holidays for the whole period they worked for him. Furthermore, the appellants claimed maternity leave payment in that they were underpaid in the trial Industrial Court wherein the learned judge ordered that they-be paid for one maternity leave each. The 1st appellant, Semeni Juma Khamis, claimed that she was entitled to 3 paid maternity leave payments, not just one so we should order the respondent to pay her the other two unpaid periods of maternity leave. The 2 nd appellant contended that she should have been paic;I for two periods of maternity leave and not just one so the respondent should be i>rdered to-- pay -for the--second-~maternity -she---was entitled 0 •'. to. With regard to ground 3 of the appeal, the appellants faulted the Industrial Court for not orderiAg the respondent to pay them transport and housing allowance for the period -they served him as 4 domestic servants. In ground 4 of the appeal, the appellants faulted the learned judge for not ordering the respondent to pay them wages from the time he dismissed them from employment to the date of judgment. At the hearing .the appellants reiterated that they were underpaid maternity leave in that the 1st appellant should have been paid three periods of maternity leave while the 2nd appellant was entitled to two maternity leave payments. They should now be paid the difference, they urged. Speaking through his interpreter from Gujerat to Kiswahili, the respondent submitted that he had already settled the maternity leave claims on the due dates at the material time. He stated that he again paid the same- claims when-the -appellants went to the Industrial C:ourt so he has over paid the appellants and owes them nothing. He further contended that the claim for public holidays and .Sundays was not introduced in the Industrial Court so it cannot be introduced at this late stage. In a word, the respondent stated that ' 5 he paid the appellants in compliance with the order of the learned judge and is not liable to pay them anything more. The issue is whether the learned judge omitted to order the respondent to pay the money claimed in grounds 1 to 4 of the appeal. To decide the above issue, we perused the pleadings and the evidence adduced in the trial court. The 1st appellant who testified as PWl simply stated that she was employed as a domestic servant by the respondent from year 1989 to 2002 when she was dismissed. She then took her complaint of unpaid terminal benefits to CHODAW, a trade union organization for domestic workers which facilitated the payment of her gratuity of Shs. 150,000/=. Not satisfied with the -sole payment-of gratuity, PWl sued for terminal benefits and was granted terminal benefits by the Industrial Court. She stated ia cross-examination by the court assessor that during the thirteen .year.s·_oLservice she delivered thrice. She said nothing about unpaid overtime payments for Saturdays, Sundays and public holidays. '\ 6 Neither did she claim transport and housing allowance in the Industrial Court. As the 1st Appellant's evidence of three deliveries was not contradicted by the respondent, the learned judge should have allowed her claim of 3 maternity leave payments. The 2nd appellant who testified as PW2 also gave a very brief testimony saying that she worked for the respondent as a domestic servant from 1998 to 2003. She stated that she was dismissed and ' reinstated after six months, but she was dismissed for the second time when she became pregnant for the second time. She stated that the respondent - "refused to give me my maternity leave. He opted to give me 200/000/= as my terminal benefit Then I was given a letter to come to Industrial Court to claim my rights.// Like her co-appellant, she stated that she delivered twice during the period she worked for the respondent so she should have been paid maternity le:we allowance twice, not just once as ordered by the learned judge. 7 The respondent gave his defence as DWl saying he paid the appellants their terminal benefits an9 gave them good treatment including medical treatment for themselves and for their close relatives in ti mes of sickness so he owes the appellants no further terminal benefi~s. The learned judge held that the appellants are entitled to; T';eir maternity leave, their gratuity and, costs of this case............................................................................... Th:1refore the 1st plaintiff is entitled to get Shs~ 240 000/- as gratuity and Shs. 75,000/= as her 1 maternity leave. . . . . . . . . .. . . . . ......... She [should] therefore get a total of Shs. 240,000/= + Shs. 7.r:, 000/:= which is equal to Shs. 315,000/= as her tc:-n1inal benefit. The 1st appc!! ~,nt was indeed paid the total of T.Shs. 318,000/= and she signed to acknowledge the said payment on page 29 of the record of a~:r;:::al. The claims for transport and housing allowance and overtime payment for working on Saturdays, Sundays and public holidays were not claimed thence not adjudicated upon in the trial court so it is tco late in the day to introduce them on appeal. 8 LikewJs,2, the learned judge held that - -- the zid plaintiff is therefore entitled to get Shs. 7~ 000/= as maternity leave and Shs. 20,000/= as her gratuit½ which makes a totality of Shs. 75,000/= + 20,000/= which is equal to Shs. 95,000/= only. The 2 nd app,.:;3nt received the sum of Shs. 100,000/= and she signed at page 29 of the record to acknowledge receipt. With rc 0,Jrd to the claims of transport and housing allowance and paymer :'..s for overtime on Saturdays, Sundays and public holidays, we have already noted earlier on that the appellants did not raise these claims in the Industrial Court so they were not adjudicated u~Jon. It is too late to introduce them at this stage of appeal when lhere is no evidence on record to support the said claims. Under :·he circumstances we find that the 1st appellant is entitled to maternity leave payment for her other two deliveries, that is, Tshs. 7:)/"~'Cl/= x 2 = 150,000/=. The 2 nd appellant is entitled to one--.--- unpaid n•::iternity -- -- -·- .. ,,, . - ----- leave, . ., that is, . --- --- - . . Tshs. --- --. ... ... 75,000/=. ---···· The ., appeal ..________ --,~ --... .. ..-,. -,. - therefore succeeds partially to that extent. No order for costs. 9 th DATED at ZANZIBAR this 11 day of December, 2007. E.N. MUNUO JUSTICE OF APPEAL E.A. KILEO JUSTICE OF APPEAL ( ~ . RUMANYIKA) DEPUTY REGISTRAR