19870630 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ~ \ c_ . AT MWANZA C:-l- CIVIL APPL:OCJi 'PT• IN NO.31 OF 1985 b~ S· ft"') THE MANAGING DIRECTOR · TIMBER AND FURNITURE STORES LTD. • • • • • • • 0 •••••••• APPLICANTS \ . Versus MAKHAN SINGH •••••o•••••••••o••••••••••••••••••• RESPONDENT JUDGMENT MWALUSANYA, J. The appellan+ company M/S Timber and Furniture Stores Ltdo was successful,ly sued by' the res-po'hctent Makhan s/o Singh at Mwanza RoMo I s Court in a claim of arrears of salary and other terminal benefits totalling Shs.156,O74/9O. It was common ground at the trial that on 15th May, 1981 the responient entered into a service contrnct with the· appellant company in which the sai1 appellant company agreed to employ the respondent as mechanical engineer on expatriate term·s and the respondent agreed to work under surh terms. A ~opy of the contrart was exhibited at the trial. The first main issue at the trial was: for how long dirt the rP.spondent __ work for the appell::int rompany? The responient said he worked for 36 months from 15th May, 1981· to 15th April,1984 but the appellant rompany s3ij '+hat he ha1 worked for 35 months only·i.eo from 15th May,1981 to 27th M=rrh,1984~ ,The nppellant romp any based its argument on +he f'"',.. t +h-'•t the respon,ient took his leave on 27/3/1984. But on my p-rt I ~gree with the trial magistrate and counsel for the responient Mr. Rug~r~bamu that the alleged abortive nrbi tra tion by Juw.=1 ta ( the tr,,de union) that the respondent should start his leave prem t·urely on 27/3/84 was not binding on the parties in view of the clear terms of the contracto According to the servire contrart - Part E of the Schedule to the contr~ct, the respondent was to take leave of 84 days on completion of 36 months. The appellont company cannot go _out of _those terms of the l"'.Ontract. The trial r.ourt was right to hold that respondent hud worked for 36 months. The - alleged arbitration c:fr· tripartite agreement with Juwa ta was rightly rejected as i_t was not part of their written contract. Therefore the trial court was right to r.ompute t~e leave 13ys and gratuity entitlement on the basis of 36 months instead of 35 months • .., - 2 On housing benefit the trial ~ourt awarned respondent Shs.15,000/;, The servi,..e contract•- on Part C of the Schedule reads; ' The company shall proviie f~mily arrommoiation and deduct f~om rhe salary 10% for the same•~ The respon1ent claimed Shs" 15? 000/= being 'to% of Shs. ~ 750/= per month x 40 months • . . On t~e o-t;hei::- hand the appell:int r::omp<J~Y s--id that as respondent was a,..romm_oi2ted by the r:omp--ny with ,1 house -t Kitendagu'.l,o for 36 mo~thi:;, t:herefore 10% ought to be dedu-·tei from his salary, They ralculated it as follows; 10% x Shs.2,500/;per month x 32 months =·rid it comesto Shs.8*000/==., And the appellant company also stated that he is entitled to house-rent for four months that being Shs.1000/:=~ . The trial . court . w.:is certaiply. -wrong · ~ ... ~ ~ •- to accede. to. t-he, respon1en,t' s clai.m. .of_ Shs. ~5 ,000/r:, . This is because the respondent was wrong to think that he ~as entitled to 10% of his salary µs housing benefit if he was accommodated. The truth is ths t he· was to be ded-urted 10% if he was acc.ommod~ed. •·,And it is my view, that. -respondent- was accomm:~~ ~~?_ __ by. thE;_, appellan,t company at K.itenr:laguio--as tie did not ·cha.llenge that allegation at the trial. As he was· accommodated :for· 36 month~., then· he has to be deducted 10% of the salary of those 36 months. Now whF;t.was the salary per month? The appellant company says it was, Shs. 2, 500/=; the respon-ient on the other hand says it was Sh~.3,750/= (i.e. Shs.2,500/= basic s~aary plus Shs.1,250/= expatriate allow~nce). The servire rontr~rt on Part A of the Schedule stipulates t:hat the·- respondent will get a basic monthly salary of Shs.2,500/:= plus Shs.1,250/= ~s a monthly expatriate a llow;:,nre. In my view Shs .1, 250/= exp,.,tria te allowance is not part of the s"_lary, it is -=n allowflnre r:s the name suggests. And so 10% of Shs.2500/= x 36 months comes to Shs.9,000/=, and this will be deducted from the terminal benefits of the respondent. · However as for four months whirh respon1ent was not accommod,,ted, he wouli be entitled to refund of the house rent he had paid less 10% of that amount. But the respondent failed to disclose at the ·trinl -:1s to how murh house rent he had paii in those .four months. The appellant ~ompany put the . . . entitlement of respongent for.those four months less 10% at Shs .1, 000/=. That· in my view is too low. Making · · a reasonable t. assessment I put a monthly house rent at Shs.2000/~. and for four months it is Shs.8,000/=. But from that sum of Shs.8000/= we have deducted 10% and this comes to Shs.800/=. So for those \ four months the respon-ient is entit:led to Shs.7,200/=· as housing benefit. 3 _J\'-..,.._-,!_t'hot about the grAtuity? The servi-e r.ontract on __ . I Part B "at' the Sr.hedule states thrt respondent would be entitled to 25% ""5 gr.Jtuity 'arcading to the bws governing the same in Tanzania's The issue at the tri~l was whether the expatriate ~llow~nre w~s to be t~ken ~s pnrt of the salary in computing the grntuity~ The trinl rourt answered that question in the affirmative. T~e tricl rourt w~s wrong, berause as I . ' have stated aoove an allowanre is an allow~nre and not a salary. So the gr~tuity payable is 25% of Shs.2,500/= ti~es 36 months and this comes to Sns.22,500/= just ~s the appell~nt company calculated it in their Written St~tement of Defenr:e. There is no, ,gr?tuity payable for the last four months 3fter the completion of contract, this is because the servir:e contr~ct , stipulates that gratuity is payable only after completion of the contract. After 36 · months had been completed no new contract was entered intoo The payments made for those four last months were simply on the principle of quantum meruit and not part of the original contracto As regcirds leave pay for 84 days-,. n=~spon1ent said at the trial that it was Shs.9,436/= taking Shs.3750/= 3S the monthly salary~ while the appellant company romputed i t at ShsoG,997/20 taking Shs.2500/= as the monthly s~lary. The appellant compFny is right, the basir salary is Shs.2500/= p.m~ and not Shs.3750/= and so the per diem is ralr.ulated ar.~ordingly. I therefore hold t~Jt the respon1ent w~s en+itle1 to Shs.6,997/20 as leave pay for the j6 moriths. The pay e~titlement of the respon1ent for four months after the completion of the rontr•:rt, on .-he prinriple of guantum mE:,~~~ :- ~--= C'•~~ •. 10 7 000/= i.e. tflking Shs.2500/= p.m. The period r.onr.erned is from 15/4/1984 to 15/8/1984. I do not accept thct it WE1s three months :,s appellant rompany argued at the trial .:and indi~:-,,ted in the Written Sbtement of Defence. On arrears of salary the responient 0rgued at the trial that he was entitled to Shs.11,368/50, but the appellant company argued that there were no arreArs of salary. The case for \ the respondent was that his salary 2nd expatriate allowance for 36 months· to which he was entit.le1 to was Shs.121,320/=. Then he said that by the end of the f:ontrect-·the appellant company had deposited in the respon1ent•s ~ank.~ccount only Shso86,850/50 and that he happened to have had been given some advance pay amounting to Shs.23,100/=. So he argued that if you substract those two sums from Shs.121,320/= there remains I 4 an outstanding' sum of Shs. 11, 368/50 which is due. But ao bank statement was produced at the trial nor any other document to establish the non-payment of the salaries. He expected the the court to believe his bare word. And it is the law that who asser,ts must prove. If he had not been p"id his monthly s::1lary when it was due, why did he not romplain there '.lnd then instead of waiting to claim it at· the rompletion of the rontrD,...t. Th3t fa~tor greatly weakens the respon1ent's,... se. On my view this item of the claim W3S not proved on _a b,lanre of prob~bility an1 the trial court should have dis0llowed it. I ar.r-or1ingly disallow that r.laim. Another thing roncerns payment of air f~res for the respondent's family by the appellant company. The service contract in Part Fon the Schedule stipulates tj')at: 'The Company will. pay air fi:lres to ani fro to the ~mployee· and his family on completion of the contract'. He claimed Shs.44,000/= in lieu of the air tickets which appellant company all~gedly failed to pro:vide for the respon-;lent' s family (wife and f~ur chil-1ren) since 31lt2/1982 when the Bank of Tanzania approved the application for the respondent's family truvel. The defence of the appellant Company at the trial and here on appeal is that Uey quly sent the fir tickets to the family of ,the respondent to the ad::lress in India as indica+ed in the res'pqndent' s office 1Mr9onal file. They argue:! that if the air tickets did not rear:h tfle required 1estlnation then that is not their r.oncern. The tri.a1 cOUJ:'t held that even if the tir.kets were sent, still the appel)ant compiny Wa$ at fault as they h~d not ~srertained from the responient who was with them 2s reg2rds the correr.t ad1ress t~ WQere the a1~ tickets were to be sent. In my vtew the tridl rour-t was should., -orirect.. In any r.ase they/h ,.we s_ent the air ticketa by registered m?Jil and produre at the trial the eviden,...e of postil\O • J3ut that was not done rit the trial. If the letter di1 11$t g•t tbe ad ires see, then it woul'.i hcwe been the subj er: t of Rei'-~. 1Retyrn to Sender) .. Moreover, we have only the eviden\e ~f aptti,:'~l ~ Bank of Tanzania, but we have no evidenr.e at all th~t the,.appe(lant company paid the requisite Tanzanian Shillings to t1'e b,in~;, What we have is mere speculation and conjecture. I agr~e ~ith counsel for the respondent Mr. Rugarabamu th:1t at least the <1ppellat1t company should have produ"!ed some dor.umPntary evidence to sh~w that the money was paid ·to the bank and air tickets were pto~red an1 sent. It is the law that who asserts must pro-ue what lie asserts. So like the trial court I allow the sum of Shs.44 1 000/=. I 5 Finally we come to the issue of overtime payment. Their service ~ contract was silent about ~t but now the respon1ent comes out with a claim of Shs.25,290/40 which the trial court allowed. That covers the period from 1/12/1981 to 30/11/1982 when the respondent was asked to urgently construr.t a Bukop's boiler house ~t Bukoba. He said that he used to work 12 hours a day insteu1 of 8 hours an1 hence four extra hours every day and full extra hours on Sundays. The appellant company c1rgued at. the trial thrJt the overtime payment: is not payable because it was not part of the r.ontrart. The courts do not readily imply terms on n rontract made between two parties. The r:ourts consider t_hnt the r.ontrar.t the two parties produce should be self-sutfi,-ient. They do not re.gaJ:d it us their duty to rei:>hrase, rewrite or alter the agreement:. The court will apply terms however when they feel that by so doing they are merely reflect~ng what the parties intended, even though they did not expressly say so - see the case of Otis Eleva:t;or Co. Ltd. Vrs. Bhajan Sing}:\:_._ 1966 (2) A.LoR.· Camon. 337. The rule then is that the court will imply a term if a reasonable bystan1er overhearing the contract being made would have said, ' of course it is obvious that they both meant to include that point it goes without saying!' And. Sir Newnham Worley V.P. correr::tly stated the law i~ Ceimpling Bros. and Vandef'1..al Ltd. Vrs. Uni te1 Air Servires Ltd: ll{; 9l.A.C.A. wl')en he said:- "In ~eiqate Vrs. Union Manufarturing Co. (Ramsbottom)/191.§.7 IK.B.- 592 Srrutton L.J. said: "The first thing is to see what the parties have expressed in the contrat"'.t and then an implied term is not. to be added bec~use the court thinks it would have been reasonable to h~ve inserted it in the rontract. A term ran only be implied if it is necessary in ~he business scr.sc 7 to give efficacy to the t"'.OOtrArt, that i~, if it is such n term that ~an conf~.., ~::tiy be said that if · ·. at the time the contract w<1s being negotiated someone had said to the parties, 'what will happen in such a case', ·they woul,i both have replie-1, 'of course so and will happen; we did not trouble to say that; it is too clear." Unless· the c·ourt comes to some conclusion as that, it ought not : imply a term which the parties thems~lvesj have not expressed". I .. 6 I a1opt those observa•ions ani apply them to the facts of this case. It may. be of interest to note thnt the aforesaid dectrine was applied in the case of Alimohamed .Osman Vrs Ngoni - Matengo Cooperative Marketing Union Ltd: /1962/ E.A.1 where it was held that there was an implied contract for oayment for a part of the contract which was deliberately frustrated by the defendant. And the Privy Council to whi~h ~hat case·went on appeal nodded in ·agreement. And in the case of Hassanali Issa Vrs. Jer;) j froduce Shop: L196JZ E.Ao555 the E.A.CoA. agreed with the High Court of Tanzania (Hamlyn J.) that storage rh~rges are impliedly payable at a reasonable rate for the period a vehirle surh as a motor-cy~le is being stored a.sr opposed to the period when a vehi,..le is being repaired. However I think the r:,"se of Sr.hwartz Vrs. Gill :;ind Co. Ltd. E .A. 1 which decided that the rourt would not imply a term that leave pay iJnd passages in an expatriate rontr: r.t rould be accumulated., is more analogous to the f0r.ts of this r:ase. I ~m not satisfied thnt in the case at hand it was the intention of the parties that overtime woul1 obviously be payable. The appellant comp;,ny would have definitely pointed out (as they d1d in their evidenre at the trial) that the practice in their Company is that senior officers of the Company, as the respondent was, are not paid overtime. I therefore, hold that it was wrong for the trial court. to h~ve held that overtime payments were payable. Suppose I am wrong in the above holding, is the sum of Shs.25,290/40 claimed as overtime reasonable? No, it is not. The payment of Shs.15/65 per hour which the responient has put is just arbitrary. An1 :j.t is doubtful that from 1/12/81 to 30/11/1982 the responient worked-continuously on overtime as alleged. So if he had succeeded unier this head I would have, awarded only a token sum of Shs.5,000/=. In the event I award the responient the following sums:- Shs.7,200/= ( housing benefit); Shs.22,500/= (gratuity); Shs.6,997/20 (leave pay); Shs.10,000/= (sAl3ry for four months ~fter rompletion of contract); and Shs.44,000/= (money in lieu of air-tirkets for I respon".lent•s family) and that total romes to Shs.90,697/20._ , Then from that sum you substr.,ct Shs.9,000/= being 10% housing charges iue to the respondent and it come to Shs.81,697/20. I ac~ordingly set .a-~i_q.-e.j:he aw 0: rd of Shs .156, 074/90 mede by the trial r:ourt and ,,,- ·.,. substitute thereof a sum of Shs.81,697/20. The appeal is partly . . ',f} allowed to the>( extent. As the appeal has only partially succeeded, · I or1er th~t each party will bear his own costs of this appeal. Order 1 I • ~-. accordihgiy. ~Q__, J. L. M W A ~ !\ Mwan~_a ' JUDGE 30th June,1987. l 4 • • • 7 . Court: Judgement delivere1 in Chambers this 30th ~ay of I June, 1987 in the presence of Mr. Kahangwa counsel for the Mr. Rugarabamu ~ounse~ for the responient. i;: ~"-1/'~~,--· ~~ cr~l J. L. MWALUSANYA JUDGE 30/6/1987