NA TZHC Dar es Salaam16

IN TIIE: illG'Jl cmmr OP 'l'AHZAIHA DAR ES SALA.Ali DISTRICT PJ!!GISTRY . . . NJ: DAR ES SALJ.J:J-1 CIVIL APPEAL NOo 129 OF 1995 VITU3 JOTilf. 1IPAGILA~oooooooo•oboo~o•••o APPELLANT V3P.SW TIJE MANAGING DIRECTOR OF GEORGE WILLIAl'<lSO:N T.A.HZANIA LTD., • o • o • o ., • ., • • • • • RESPOUDENT /p .. ,•' '::.., JUDGi,1EMT The appellant VITUS JOIB'J LIPA.GILA had before the Kisutu R.Ws Court olaimed frora the :respondent, MANAGI})l'"G DIRECTOR, GEORGE WILLIA].v1SON a total of S.hs.1,020,000/== being Hemisea. as shs.400,000/== for repatriation expenses and shs.6213,000/::s for subsis-liance allowance. The appellant had elaborated on repatriation expc:1.ses as being in :respect of a journey· from Da.r es Sa.~aam .to JY'i.alinyi 1 which latter station he claimed to he his plaee of engagemento There is agreeroont from both the appellant and the respondent that af-te:r the a.ppellant 1 s services had been . tei•minated at his du·~y station a-Ii Tuku_;;•u on the 13A2., 1993, the appellant was repatriated from Tuktzyu to Dar es SalaaJn., P.13 for the subsistance. allowance, the appellant claims the same as beihg such allowance :from the da-te of termination to when he was fina.l:i.y repatriated to Dar es Salaam where he filed the suito By a "private and con.fidentieJ. 11 l.etter Ref• }Jo TF/10(a) 1 dated, 11 the 10th Februa:t'y 1992 · and headed "RE; EiliPLOYMENJ.111 addressed t~ the appellant by his oa.re of ad.dress o:f DAR ES SALAAM, the appellant was 51 offered employment as a factory Fili.ter Technician at Tukuyu 'I'ea Estate wi-lih effect from 1st April 1992. Thi:3 letter is marked Exh. D2. From the pl.ea.dings, the trial oonrt settled on three issues in respect of v1b.ich the appello.ht, who was not defended as well as in this appeal: gave evidence while he was being 1ed·1Jy a learned Labour Officer, Mr. :hhll'ugaru.ga. Soon thereafter, the saio. Labour Officer withdrew his service:c, for what he called -th:tt the ap:: 3 lJ.an:t; · h,~•:l expressed dissatisfaction a.."ld LaPk of Confidence in the mann: r his case was being handled by Labour officers in a letter that he JJd add...T'E3soed to the II011ourable The Minister :!:'o:v Labour a..vid Youth Developr ,_:,t. The appellant called one wi thess, the rronoura]3le Minister on whose 1uhalf c.~.me one Mohamed II.alid, Principal o~oo•/2o , ~.....,,,., l . J i ~- - 2 La"Jour Officer (PW2). before the defenca•s only witness WILSON MWENDAMSEK:E who is the defendant ts Operations Na..'1.ager, testified. After the trial oov.:rt had carefully analysed the rnain issue of whether the plaintiff was engaged either at Dar es S.alaa.m or ivlalin.,vi. and decided that the place of· engagement was at the former, it rnled otr~ that the plaintiff was neither entitled to repatriation from Dar es Salaam to ·Malinyi nor was he entitled ., to subsistence a.llommce i'r\m 13 .. 2. 1993 to 6.8.1993. Five grounds .of appeal have been filed 1 ·1tt. this CoUJ:'t and I will refer l t to them in due course. The par-ties to ·thi:s appeal agreed and indeed did ~ s1.ili.Lni t w:r-:i.tteh, ~u.bmisaions ill the order tha.t upon the appellant filing t- his written submissions and a copy- of the same having bean served on Yrr. r " Kisusi, there was later filed a wrHJi;e."l. submission/reply by Mr. Ilisusi• I i And upon servil'lg th0 writtan. submis.aion of lilr. Kisusi to the appellant there ·was fina1ly reoeived what the appellant oa.11.ed a ;reply to. l.'G~dent\i j [: .. ;,, advocate written argument. Let it be pointed out here that I have o~full,y " w I· ~, 1. read and understood those submissions. ¥: '· ·~--,- For ;,urposes of serving time a..'ld Gpace I will deal with the first '11.wa t grounds of appeal ·together. The firs·i; ground of appeal reads thaJli the ~ :":' lea.med ~idB-nt. .Ma.g:ist:eete se:r:Louslt er:wd :U'l law and f a.oJG in not holding ~- that the respondent/employer, at the tirn0 of engagemen~, failed to pxepare a con-tract of employnent or failed ·co issue a copy of the appropriate record I 1 of contract as required by section 35 of the Employment Ordina.tJ,ce Cap366 as amended by the Third Schedule of the Security of Employment Act Cap 574. And in the second ground of appeal, '~he appellant complains that the learned Resident Mag:i.s~1?.ta seriously erred in Law and fact in not requiring the responde.rltjBrnployer to produce a copy { of). a oOi'Ytract J?:I'Opa;red and maintained by him under section 35 Cap 366. The appellant in submitting / on those two grounds together argued th.aii in the absence of a contract of employment oontain:i.ng very· important pa,rticulars like the place of engagement, the statement of the appellant/en)Ploi:ee a::; to the place of engag~ment should have been ad.mi tted a.a evidence without further proof. Mr. Ilisusi on his part argued that it w~ not the leaxned trial Resident Magistrate ·who erred~ instead it was the appellant who serioi:1..sly errred. Mr. Kisusi went· on to ;is a1--gue tha.t there.L,Pei ther i11 the pl0Gclings ! nor the whole evidence, any ooLJplaint that the :respondent/employsr had fc:iled to prepare a record of contract and or issue such docwuent~ Ile concludes by pointing out that since regarding the quoted _-seotion 35 of -ci:..e Act, it simply requires ev-ery employer ·i;o prepare and maintain a :record o:·. corr~ract for every employee enrployed by :ua under an oral oontrc=:.ot tt,:f serir:·.00 and the appellant was employed ~der 1:.. contract which was in Wl'iting1 thGt:·. ho is not cove:red. I entirely agree with r,lr. Kisusi that the first and sec nd c,--:rounds of appeal have been - 3 - misconceived. The qW:lstion of an employer preparing and maintaining a record of oral contract and or issue such docwnent was neither in issue nOl' was there ·any evidence l)efore the 'lirin.l court., It cannot therefore be ente~tained before this Court, l:,eoai..180 as a first appellate court fi'esh issv.cs gannet be oom::iidered. All -;;J..,.e saIT,e, I am satisfied tt-e·b the appellant was employed under a con,i;rac·~ - E.xh D2 which was in writing~ The isaue of o:ral contract does:. not arise. The first and second grounds of aJ.)peal are Wi. thout roeri t. The third ground of appeal is ·t}2.at the learned Jtesid.ent Magi~trate after holdi.tlg t.ha;t. -One ITal,aha-la was a V(3ry important witness to tlle case, he should. huve called that wi:bno~a w:i. t..h.ol.J.t, .ullLlUQ. J.'Ogard to ~ i c a l i t i ~ .of" procedure vide pr9viso of seotion 134(3) of tJ.::.o Employment 0:rdinance Car:, 3,66, a.a amended C ey- •i:Jla JBGn?~.num :O~~.(A,metJ.drop.n·:: }- J.pt. No .5 -of t~9. The appellant adrled ~l ~ i j law demande that substa..'1.tial justice to "Je done. Re fuxth.er su1)mH·~oa ·th.-i~ ,,noue in~u.ijt~QQ wa~ oocassioncd in ·t;b.e case by the l e ~ trial ~ ; Aott+.. ~.iA.t!!!o.t<- ... ta.i,.l.u:,i>-;o ~ · llaJ...,-,,h.."\13, aP- .a. .1h"i. tness • M:r. Kia usi. a.I'gued that sil\ce h~ does no-1:i see why the failu:re to call ~ s.hou.J.d 1)G aslj0~ta.t@d with_ th'i) :equirement tho.-·~ employment ~ e s .i.hould be heard ~:l.b.o.u.t WtdW; ~g~ ;t.c>.pahn:i:oali~ ;'lince this ease which was filed as ~- ~i Wf -ad -U ➔~ t~ Fi.ling of a plaint was not an empl-oyroont o.a.u.~~ amon_d-a4' 'by Aet Nt , * w?,:.i.i.oll, eil1gnl-d ~ ~-~ ~ l ' P1?Z~ JCT of the .Emplo,-ma.n-t Ordinance as 196~, t.!l.e. third .g:t'OU?ld er£ appeal is also mi,g.oorioQived. I ~ll'IJ.¥ ~ with ~. . . J{isusi . tha:~ this is an ordinary- <>ivil case which . ,eould not be deal\'fith undlil! sec-tio11 143(3} of the Employment Ordinance Cap 366 ~ amended. by A;·t No S of 1969-., The appellant was :required to call .. -~' i J1UJu"'!ALA. ~~ bA f ~ ,t..o._ d-0 ..go,.he. -C-Q!l-"lCli;. shift th.o.t. bUrd-Ql'l on the trial. ~ t . Magist:ra~ 'l'he ap-pe.~ia..'1t sl:'.ould have known that he ·who alleges ~--. mu~t prove. If the a,ppellant failed ·i;o pi"Ove whatever he had alleged then -he cannot at thi..e, ~ 4 3 belli3fi ~ from. his negligence. The third ground is wi,i;hout merit.. The fo~th ~rol,,lJ\d of appeal also xeads that on the evidence that tile a1)pcllant at the time of engager11en-i; Hns not a resident of Dc:.r es Salaam the lo-u.rll6d Rs1:hdent Magist~ate should .l:n.ve held that the Dar es Salaafl) address i.tJed by the appellant when oomrnunicr."c·;;i:1.c with the respondent was a mere means of communication through one IIa.lahal:.1 in Dar 0s Salaam ,~ho was to inform him n."Jout his application for employmen·co '.l.11le appellant submitted ·i;hat when he a})plied for employoont with the respondent he used thG address of ITalal1ala of Dar es Salaam fc,r purptijeS of be.i.;.1c L"lformed of the outoore of h.i.s application. Ile added that at that -~im tc was working wi·ch l\Jang•ula. The appellant a.lso said t.hat when he n-b·[;endcd interview and later reported for dv.ty, he was on eao.h ocoassion ref,:.:.1c1.ec,1 his travel expenses from :£.:'1.linyi ·to Dar es Salaam4 Mr. Kieusi su.l)i:,t.·::tcd i:i: what the appellru1t alleges is trL":a o• o• ./4o ·•· ... ' ' ... . - 4 he eught to have produced documents to prove either his employrrent with Mang'ula or payment vouohers to p;rove tha.t indeed he had been refunded his travel exPe11ses fJ;"om Ma.linyi to Dar es Sala.am. I am satisfied as w~ the tric1.l learned Resident Magistrate tha-t on tho basis of Exh.D1, D2 and D3 indeed the appellant was engaged ;in Da.r es 3alaam and not from Malinyie I have carefully read the judgment tho Eon. N.3 o Mnzavas J oKo in the case of ANC.,s KASIIUKU 'VS., THE GEIW:RAL l•1t.NAGER 1.l1tJ:TG1'J'JYIKii. D1"EIIfG AND WEAV1N"G liHLLS IEI:D lligh Court l.'11iso • Appn,. No 6 of 19GO (unreported) <:3-11d .I entire 1y agree with all that which was held in tha.t case. I agree with Mr. Kieusi that ·that case is on all fours with -'iihc fac·i;s of ttis case o Ilowcver I find the Kashuku caae distinguishable with this c:;r:;e on a fact thet from the ~~siaondenoe be1w~n the a;z~ellan..,~---Q:~II0h.1J). and the respondent befo:-ce .:'v.8L,t1ppeUiui1 Wa@ Jffi12lOyed. it. wo~.d m.we.Af' .iha-1; thj;9:p]2elfoiri; was living -~paj ss_Sal~am. ifhi11.J1e was o:f'fe-red ·~I~~ a.i112oint4!:rrt of a. metiat:. mooha!}ic b,y ~Q. i2"l:O~dant _0Q5?M,V" a 1 .(,und.e..rlilliJ:le .s.1-4,plied) • In the instant case the .,.. a.ppallant was living at Ma.linyi. Bu·t where one is living at -the time of ~ t . . ~ ~- lllat.ter itlletie:steJ:1 'an ~mpl.oyer ~ to disob,a.-rge his obligaticw. to N.patdate an employea.· The place of o.ngag.t.=lu1~~ b Rh:,;t oounts • J: iind that tb,G lea'-'?'lf'4 t.:iaJ. B P ~ ~1..o~o,t,.Q ~ -om:il'ely ju<Jtified to make a. finding that th~ appelJ.on·i; havine been· engagoo. i.tl D.;u! oa. Sal.~ 'l'IOJ,) 'bl:110913jt ~ ' t ' : I .,~4 ~ <111.uc..h. ~ tliA ~~p~t. hAd M fu,rt.h.ax- obligation to the appellant, i:'113 for the fifth ground of appeal ·this court is not obliged to enforce v~~ ~ ,ag,eed upon between 'the defendant o.nd the Labour ComrrisGion°r • •1£±e-r all. ~e · :ilfijf'i~4 b,Y -~he tri~J. ,,..,.,uri, -4,oa,:i~ .,....,:,,~i: ~a a1J.oged ::iy the appellant. The appellant has iniled to annex to his submission a . copy of the Labour 0ornmis.sioner 1 s lottGr :Ref. Ifo.KZ/Uo 10/56/1/Vol.1/164 do.tad the, 20.10.1993, But,for the sake of a:rgument,even if the a.ppella.11-t hac.1 annexed that l e ~ to tho. su.tmissions, still this court would .have had no o1:iligation to dis1Jelieve the evidence of the defendant's WILSCH l~MEN.Qbi\JSEICE ~!Jld impuen the judg~nt of tte trial 001..1.l't. Just like fot.U1.d the trial cour~ Jvhc evidence weighs heavily against the appcllanto I $upport the findi;.1&,rs of the trial court that the appellant ha,ving been :repatriated at his place of his e115agoment and his lU(;ge.ee was tra,.'1Sported to Dar es Salaa.m, he hr,d ~Jet-ter be advised that he has not only 110 claims against the ~spondent bt~-c al:rn that hE: should collec·t his pcrsonc,l e:ffects which include his ever - multipl,ying goats (two in 1992 to six in 19~15) fxom the :respondent_ts godown soone;3t. Appeal dismissed. l --.. . /-- ,v • •,/'\... _.,..---. v~ ,I> -:1;-~ '-· ', r-i.rBrrr, PBM JE.J ,,) For Appellant : Present E,gr Res12ondent: absent