university of dar es salaam vs jerome tesha 2021 tzhcld 316 19 august 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISC. APPLICATION NO. 73 OF 2021 BETWEEN UNIVERSITY OF DAR ES SALAAM................................................APPLICANT VERSUS ’iv? JEROME TESHA..................................................................... .^RESPONDENT ■'RULING A, K 'V > - S.M. MAGHIMBL J: : v In her notice of application and the-Chamber Summons, the applicant above mentioned has moved this court under the provisions of Rules 48(8), Rule 24(1), 24(2)(a)(b)(d)(e) and (f); Rule 24(3)(a)(b)(c) and (d) and Rule 24(11) (b) and (c) of the Labour Court Rules, G.N. No. 106 of 2007 ("the Rules"). She seekingTor the following orders:- 1. That the honorable Court be pleased call for the records of proceedings of. Labour Revision No. 608/2019 at the High Court Labour Division at Dar es Salaam and be pleased to interpret the judgement delivered by Hon. Judge I.D. Aboud on lithe December, 2020. 2. Costs to follow the event any other relief(s) this Honorable Court deems fit and just to grant. The application was supported by an affidavit of Prof. David Alfred Mfinanga, the Deputy Vice Chancellor - Administration, with the Applicant i dated 11th March, 2021. Ms. Otilia Rutashobya, learned advocate represented the applicant. On the other hand, the respondent, duly represented by Mr. Davis Matimo, personal representative, vehemently disputed the application by a counter affidavit dated 31st May, 2021. The application was disposed by oral submissions conducted on the 22nd day of July, 2021. , ' f From the facts gathered in the records of this application including the parties' submissions, brief background of the matter is narrated. Through the letter dated 22nd June, 2012, the respondent and another person not a party to this application were terminated from the 'service of the applicant. The termination as on grounds of working^uridef/ihfluence of alcohol and assaulting the applicant's students. Aggrieved by the termination, the respondent and the other party lodged aiabor Dispute at the Commission for Mediation and Arbitration' ("the CMA") referenced as CMA/DSM/KIN/434/12/305 against the applicant herein. The dispute was partly successful ph’the-ground of being procedurally unfair, the CMA ordered compensation of the respondent by payment of 12 months' salaries pursuant to Section 40(1) of the Employment and Labor Relations Act, 2004 arid Severance Pay in terms of Section 44 (1) of the same ELRA. The respondent and the said other party were unsatisfied and subsequently lodged a Revision No. 417/2015 in which this Court, (Hon Mashaka J, as she then was) upheld the finding of the CMA that the termination of employment was substantively fair but procedurally unfair and proceeded to confirm the award of the CMA and dismissed the Revision Application. 2 Having been defeated at this Court, the respondent went back and again knocked the doors of the CMA vide Labor Dispute No. CMA/DSM/KIN/R.911/17/888 claiming for transport and subsistence allowance and on the 31/05/2019, the CMA dismissed the matter for lack of merits. The respondent then lodged another Review Application styled as Revision No. 608/2019 which is a subject of the current/a^pplicatipn. In the said revision this Court (Hon. Aboud, J) merite^^the^appiication and holding that the applicant is entitled to be paid<subsistence<allowance as >.< for the whole time he was waiting for his transportation allowance. This Court specified the period within which the<respondent was to be the subsistence allowance whereby it was counted from the 22/06/2012 when the applicant was terminated frorrf employment' to the 13/06/2017 when his transport allowance was paid holding'that the situation attracted payment of subsistence allowance'to the applicant for that period of 5 years. ' It is the above finding' of-this Court (Hon. Aboud, J) which has attracted the currentapplicatiqn. on the grounds above mentioned. The applicant is aggrieved by the said finding and is hereby seeking for interpretation of thehjudgment and decree of this honorable Court on the said order of payment of subsistence allowance as for the whole time the Respondent was waiting for his transportation allowance. As per the affidavit in support of the application, the statement of legal issues was that: (i) Whether the applicant ought to repatriate the respondent while he appealed to the Commission for reinstatement. 3 (ii) Whether the applicant ought to pay subsistence allowance to account for each day the respondent chose to stay in Dar es Salaam to pursue his own case. (iii) Whether the applicant ought to pay the Respondent subsistence allowance for the whole period of the Respondent's case; .-■/ (d) Reliefs Sought ~ The applicant hence sought for the reliefs as stated,in X ' Z both tlieX?Chamber Summons and the Notice of Application as stated above. X\ In summary, in her submission to <.support\xthe application, Ms. Rutashobya's main point was that during hearing of the Revision No. 608/2019, they clarified that ( the period for payment of subsistence allowance should not be from thd date that the respondent was terminated on 13/06/2012. until the 02/03/2017?~Her argument was that in all this period, the respondent^v/as in court along with his colleagues Kurwa Mgasa and it is a period vyhereby he ’was not waiting for transportation allowance, rather he waszpursuing/Ns own case. She cited the case of Mvomero District Council Vs, Thobias Bilongwe & Others, Lab Revision No. Vx V”--/ 26/2019 (Morogoro) and KM 2006 entrepreneurs Limited Vs. \\ \'x. Emanuel Kipietule, Lab Rev. No. 19/2014 LCD 2015 Vol. 1 whereby in both these cases, it was held that the time which the respondent was in court was not supposed to be paid subsistence allowance. She emphasized that the period within which the respondent was in court, is not supposed to be counted in payment of severance allowance. She hence prayed that the court excludes this period for reason that even the terminal benefits 4 were paid immediately after he informed the applicant that the matter had been determined by his letter dated 02/03/2017. In reply, Mr. Matimo argued that the respondent was terminated on 13/06/2012 and was paid transport allowance on 13/06/2017 therefore the claim of 5 years is correct and is the one which the respondent is entitled to be paid. That the date which the respondent' was '/terminated employment and the date which he was paid the allowances sVyears and 9 days. He supported his argument by citing the)decision of The Court of Appeal in the case of Gasper Peter Vs. Mtwara Urban Water Supply Authority (MTUWASA), Civil Appeal No. 45/2017 where it was held under Section 1 of the ELRA,,„upon;-termination of employment, an employee is entitled to inter alia, to-subsistence allowance during the period between termination of his employment and the date of payment of costs of his transportation to.the place of recruitment. \, 'V. Mr. Matimo submitted further .that the issue of respondent to open a case in court to claim .for, hisfright is not connected with the Section 1 of the ELRA because the 'ap'plicant was supposed to pay the applicant transport allowance at the time she terminated him, something which was not done. Citing",the case‘of Mohamed Enterprises T Limited Vs. Masoud Mohamed Nassir, Civil Application No. 33/2012, Mr. Matimo urged the court to just interpret the award and nothing more, pointing out that the payment of Tshs 989,495/- is not the correct analysis because the applicant has confused the case that involved two people while the case at hand involves 5 one person only. His prayer was that this court interpret the award and the respondent be paid his entitlements according to the law. In rejoinder, Ms. Rutashobya started by distinguishing the cited case of Gasper Peter, arguing that the current situation is just a remarkable feature were the respondent himself referred the decision ofzthe applicant to the CMA challenging the termination. But in the case of Gasper'-,Peter \\/> there is no time computation or time regarded where the'fesporident was <■, in court pursuing the case against the applicant tShe then argued that in the termination letter, the applicant was to be paid his-terminal benefits of which he was not paid until the 02/03/20when he informed the applicant that the case at CMA was decided^aridjihey paid the respondent. Further that had the decision come otherwise, the applicant would have not had a recourse against the .respondent and that because the 1 — respondent satisfied himself that the case was final and he was entitled to benefit is when the applicant, acted. It cannot therefore be said that he should be paid from the'day of termination to the date of payment of , .. ’6. 'A transport alloyyance; without considering that he was in court corridors, it will be a ^miscarriage of justice on part of the applicant because the applicant also incurred costs to prosecute the case. ’ -rJ' On the cited case of Mohamed enterprises, Ms. Rutashobya submitted that it is true the applicant is seeking for clarification of the court order. Further that if it is to be held that the respondent is to be paid for 5 years when he was prosecuting the case, then we will be opening a pandora's box because parties will be claiming for an amount not because the employer 6 refused to repatriate but because they were in court at their own choice. She concluded that this will be prejudicial not only to us but to all cases of this nature.she reiterated her prayer that this court interprets the proper time for payment. At the end of her rejoinder submissions, I asked Ms. Rutashobya to address me as to whether this court has jurisdictiopjo grantThe orders sought in the application, since it has the effect of varyingThe orders that were made by Hon. Judge Aboud. Her reply was,,that this application is brought under the provisions of Rule 48(8) of'the Labor Court Rules GN No. 106/2007. That her concern is that at page TO, the court said the respondent should be paid for more than'5 years. while she thinks that the period to be paid is only 4 months and 9\daysl The reason why I asked Ms. Rutashobya to address the issue of Jurisdiction as I said, were because in my considered view, the prayers sought in the Chamber Summons seek to challenge the decision ;of this Court (Hon. Aboud, J) as they attack the reasoning and rationale upon which the Honorable Judge reached her decision. ■■ i jv- Unfortunately,, ih'ihis'reply submissions, Mr. Matimo did not challenge the jurisdiction, ^however, his reasons also had the effect of analyzing the reasoning-of the court by supporting the reasoning behind the court's judgment. His submission was that from the decision, it is obvious that the matter that is before this court is interpretation of award and not otherwise, praying that the court should just interpret the award and nothing more. He then submitted that the payment of Tshs 989,495/- is 7 not the correct analysis because the applicant has confused the case that involved two people while the case at hand involved one person only. On the dates mentioned by the applicant, Mr. Matimo argued that these are not the dates of termination of the respondent. His prayer was that while interpreting the order, this court should consider the date which the respondent was terminated which is the 13/06/2012, tdrfhe date when he \\ was paid subsistence allowance. To the date which he was,paid;transport \\ allowance which is the 13/06/2017 making it a' period of 5'years and 9 days. He prayed that this court interpret the award and .the respondent be paid his entitlements according to the law. . , My analysis on the issue of jurisdiction will>be^based on the reasoning of the Court of Appeal in the cited decision3pf Mohamed Enterprises T Limited Vs. Masoud Mohamed .. Nassir, Civil Application No. 33/2012, where the courtMld on page 18 that: "Thereafter therefore, the High Court became functus officio in so far as this matter wascbn’cerned, both Mwarija and Twaibu J, were not competent to handie the subsequent application. Also there is no statutptyiiawj(to the best of our knowledge) which bears one judge from'setting aside a decision of a fellow judge of competent jurisdiction. Rules of practice, prudence and professional conduct Impose such Instructions. A judge of High Court in our jurisdiction is or should know and respect that code of conduct, failure to do so is to open up a pandemonium of unprofessionaiism thereto unknown in these Jurisdiction. The procedure adopted by Twaiib J therefore is very much detested, we hope that the High Court leadership will 8 see to it that it is never happens again, in the interest of our judicial system." To begin with, Ms. Rutashobya's arguments were that from the date that the respondent was terminated on 13/06/2012 until the 02/03/2017, the respondent was in court along with his colleagues Kurwa Mgasa. That at all that time of 5 years, they were in court and it is a period Wtiereby he was not waiting for transportation allowance, rather he was pursuing -his own case. He supported his arguments by citing the case of Mvomero District Council Vs. Thobias Bilongwe & Others, Lab Rev No. 26/2019 \\ \“X ~ (Morogoro) whereby it was held that the time whicn<the respondent was in court was not supposed to be paid.subsistence/aljdwance. She further cited the case of KM 2006 entrepreneurs'Limited Vs. Emanuel Kimetule, Lab Rev. No. 19/2014 LCD 2015 Vol. 1 whereby the same position was held. She then submitted, that the period within which the respondent was in court, is not supposed To be counted in payment of severance allowance. Her prayer ’vvas/that the court excludes this period for reason that even the terminal benefits were paid immediately after the respondent informed Them that the matter had been determined by his letter dated 02703/2017/; In reply,'.Ml Matamo counter argued that this reasoning is proper by submitting that the respondent was terminated on 13/06/2012 and was paid transport allowance whereby the applicant was to pay him transport allowance. This was not done, instead he was paid after the lapse of 5 years. He hence argued that the issue of respondent to open a case in 9 court to claim for his right is not connected with the section 1 of the ELRA because the applicant was supposed to pay the applicant transport allowance at the time she terminated him. Further that para 10 of the affidavit of the applicant, does not say about the severance allowance from 02/03/2017 to the 23/06/2017 when they were paid, considering the period of 5 years. /, V/'/ His prayer was that if there will be any interpretation, thermit should not come out of the 5 years period as decided ,,by<>this court, times the respondent's salary which was Tshs. 245,000/-: <To emphasize more, he submitted that the decision of this court (Aboud\J)1s the correct decision and not otherwise. He supported^his(submissiohs by citing the case of Mohamed Enterprises (T) LimiteckVs. Masoud>Mohamed Nassir (Supra). I have noted that apart from the Rules'that provide how the application should be made, on the 'substance of the application, Ms. Rutashobya moved this Court under time provisions of Rule 48(8) of the Rules, The rule provides: < '. V. (8) Wherp-any; question arises as to the interpretation of any ..decision/'pf^ the Court, or the Labour Commissioner, or the Commission, any party to the decision may apply to the Court or a decision on such a question, and the Court shall decide the matter after hearing the parties and the decision of the Court shall be notified to the parties and shall be deemed to form part of and shall have the same effect in all respect as the main decision. io However, the above, the above cannot be done without also taking into a serious consideration the provisions of Rule 21(3) of the Labour Court Rules, G.N. No. 106/2007 which provides: (3) The Judgment shall be written by, or reduced Into writing under the persona! direction and supervision of the presiding Judge in the language of the Court and shall be dated and signed tyy such S V, s.; presiding Judge as of the date on which it is pronounced in an,open Court and once signed it, shall not afterwards be'altered or added save as provided by these Rules. Having cited the two provisions of the Rules, it^issmy^strong view that a line should be drawn between the situation?wheX'the-'Court's judgment is not clear on what is to be executed, by an honest omission to do so from where the reasoning of the courtisin question. In the latter, the court can make clarification by interpreting whaf was exactly awarded to the decree holder and the extent -to which<it is to paid while in the former, the court has to wear her own shoesagain and start varying the decision in line with different kind of- reasoning whereby the whole evidence is re-analysed and verified. This is what has been provided for under the Rule 48(8) cited aboye. The latter can be done by the same court with only one reasonable intention, to-smoothen the process of execution of the decree. But in the former, it'is a jurisdiction that can only be exercised by a court with an appellate jurisdiction over the court that made the impugned decision. This is because at the end of the day, the decision will have to varied and the orders therein set aside hence the prohibition under the provisions of the Rule 21(3). ii From what Ms. Rutashobya argues, she is moving the court to set aside the order that was made by this court (Hon. Aboud, J) that the respondent should be paid severance allowance for the period of 5 years. Her prayer is that now the court sees that this finding was wrong because in those five years, the respondent with another person not a party to this application, were in court pursuing their right and it is not a period^ whereby he was waiting for transportation allowance as held by this Cou'rtjn thdjudgment. Mr. Matemo on his part supported the rationale.,behind the.decision by praying that if there will be any interpretation;'-then, it should be the 5 years period as decided by this court times the respondent's salary which was Tshs. 245,000/-. To emphasize more, he^submltted that the decision of this court (Aboud J) is the correct decision and not otherwise, citing the case of Mohamed Enterprises T Limited Vs. Masoud Mohamed Nassir, Civil Application No. 33/2012. Jurisdiction is a creature of statute and cannot be assumed by a court of law by mere prayers-made^lDy the parties. In all the arguments tables before me,;I find nothing but the applicant seeking to move this court to vary its decision bysetting the findings on page 10 of the judgment where it held that the-respondent should be paid severance allowance for a period ■' \ I'?'*' of five years., She further seeks for this court to vary that order and make a new finding that from what they think is the proper calculation, the period within which the applicant was pursuing his right should be excluded. With respect to the learned Counsel, if I am to take her line of argument, I will find myself in the pit hole in varying the decision of my Sister Judge by attacking her line of reasoning and setting aside the orders that she made 12 therein. That jurisdiction, in line with the cited case of Mohamed Enterprises (Supra) and Rule 21(3) of the Rules, I do not have. If the applicant seeks to challenge the reasoning of Hon. Aboud J in the impugned decision, she should do so to a court with appellate jurisdiction over this court and not seeking clarification under Order 48(8) of the Rules. Consequently, this application is hereby dismissed. Dated at Dar-es-salaam this 19th day of August, 2021. S.MiMAGHIMBL JUDGE. 13