19970220 TZHC Dodoma

,, I \ ·1~fll 111 1 If 1,1 '.mr Tm! HIGH COUR'l' OF T.ANZ!J:ITA AT DOD CJi'l!{i (DC) CIVIL APH~AL NO. 53 OF 1994 (From the decision of the District Court of Dodoma ~ Dodoma in Civil Case No. 71 of 1993• BEFORE W.P. DYlillJSOB~"lA .. E94._,. RESIDENT lY'..t..C.I.S'I'RA.~ -TANZANIA RAILWAYS CORPOIUiTION ) c/o TANZANIA LF.GJ-,L CORPORATION BANK HOUSE, SAJ"IO~lA AVY:.IN1JE ) • • • APPELLANT P.O. BOX i203l' Dill?. ES Sll.LiVIM. ] versus .JQSE!PH MASINGA • • • , • • • • • • , • RESPONDE!N1' - JUDGMENT ......,.. ..... ---- V#3_1 .iWHJLWAli: PRM. EX-, JURS.,_ There is only me ground. -0£ a.i,:!'.ioal in -1:h.is matter. namely, 11 Tb.e -~ed tria.l Magistre.t.e er:r:ed J.,rl J.@r i.P ho.l.ding t.hcvt t~ r-Q,gDOD.d.ent was entitled -to.. hi's wages during the period he was ir.1pris oned". .. The facts which led to this suit are as follows:- The respondent .losem Na.singa .was ,eom,-ictod ~ the Dodoma D:1atri.ct. Court.. in Cln.mina.l Case_ No. 463 of '.1988 of the offence of stealing by servant c/ss 271 and 265 of the Penal Code Cap.16, while the second count was of negleot to prevent the commission of an offence c/s ,a, of the Penal Code• He was sentenced to three years .i□prisonment on the first eo-wit and six months imprisonnent on the second count. The sentence were to run concurrently. Dissatisfied, the respondent suceeasMly appealed to the High Court at Dodo~a vicle DC Critlinal Appeal No, 22 of 1991, It was common ground at thG trial that r.e~_p'oncleht ·was hEiad: Of •-•atcl1r1en the- .,. --. ~-,.,t the st.or,..-. ,..,, ---- ,n.: -----~-----~ --· . ----·---·~-.1 - • ._,...,_ - ----· I.-., - ---~-,r-'-.; - - P C ) \- ·--• • in Dod01:ia. 1~ nunbcr of things worthy 1:0-l:. 1'.)CG -:-:12:ci cihs. 309:,000/= were io'und Dissing fror5"'a.'··11rw store on 21.1001988. The res:ponclent aprJeared. ct the trial as the second accu.scc."_. ':;."'!1G cvi.::;;nqe' tJ1c.t .:i,.mpliqc.tc::l ·. . ,· . the ~ ::::;)2l)Ol1dent with t'.:::: ti-.,,-"+v v-"~ '"' .• ,, ..... ~ctr-•' '/~.~~-c.." .1......,,.-J..,,. t.i. ...... .... 1 c~n-l'""'"'"i"'1 '-'-.i..._,~-~ \..L. ..... ~. ,··~ ___ ·...,t··•.--r ... ,.. ,., f-' .. --~ ··•ccused ~.~::-.~~-.';__>... .· 2..t the trial one ~"laphp.el -V.1volc. • I-~ 1-.-c..s alle{;cc: that o:·.•10 ,10 ,;t.988 at 0.vO p,r..1. the ros'pondent; ana, one rfa.'3sr,n M?iee, Hotel l'1~J~e:i:- - - 'I n.' 'Ponella ::i.;1.~ In:.,:)• .:·o':m ::::nj-2,,:.:.:.-_; ._;f t~"'' ·,_ ''.':~;-v ::·c2.ice 1 or-:r:18~: -1;~10 sto:r.e uml .. 2 took :f.:cor::J. thero a nuobor · of th.in{,o al.leged t.o .have been· stolen • .A.f-te.r his 0,equ.ittal, the respondent filed a suit in the Dodoraa District Court Civil Case No. 71 o:f 1993 in which he prayed·for a sun of shs .. 1,35, 380/= being his half pay1c1uxin:3 the period of suspension ,and hie fulJ. saJ..acy for the perioc'.. during which he was in prison . before his appeal was deterr.ri.ne<l i.e. fro1,1 Lsi lfover:;iber, 1988 to 9 21 ! November, 1991. The trial -OOU.rt granted the application £or payr.ient of !uli salary during the period which tho appellant was imprisoned. It denied his application for the other payment of half s.a.l.aries. which wore paid during the suspension period. I have gone through the trial court record, both the a.d.vooe.t.a.a.. of the parteea. 8rld the tclal court 03lWnneec!. a~ a great ex-tent the legal positions on the issues ro..isod. '}n cry part, it 1 s my settled view that once an enployer se~.in mot.ion ~.:i.r.tlna.l charges ag~inst an employee whi.ch are the .s.ar:ie ±.irae a breach of rl.isciplin2.ry code he shoulc'L n.lw2.ys al:ide by the results of the court in that natter. 'l'hat is in case of acquittal of the enployee, the er.1ployer is bound to pay the full salary of the enployee frou the day he put in notion the crininal proceedings against the enployee and onwards to his resumption of his duties. That period of criminal proceoclings, and or ioprisonnent which is latter set aside on appeal is not terr.1ination of the contract of enploynent. In fact an eoployee has an option in such circunstances either to instm.tute Critunal proceedings on to talce discciplinary ueasures against the euployee. In this r:1atter the responclcnt is entitled to his full salary during the period he was in pris en• I would add that the respondent was also entitled to his b.2.lf sala.ry after the acquittal, but I not thn.t he clj.A_ not lci:l_.,,r) 2n:r c·•.':.""~al acainst. t,h<.: decision. o! the District Court, os such I will not r.1...'1.1.co any order in that regnrc1.. In the end result this appeal is disuissod with costs. .. ( \I u--, , II • ,<;... (S ,B. LUIU}JC=:;L\<!A) P?Jvl, L'X • .T"t.n.1.SD - 2.0/2/1997