19990902 TZHC Tabora

IN THE HIGH COURT OF TANZANIA AT TABORA. H/C CIVIL APPEAL NO. 34 CF 1998 OR 1 G TABORA RM' S COURl' CIVIL APP. NO. 4o/97 WESTERN ZONE TOBACCO ) ) GROWERS COOPERATIVE UNION LTD ) • • • •• .,..APIELLANTS VERSUS MICHAEL JUNGA. ••••••••••••••••••••••••RESPONDENT JUDGMENT MWITA, J. In 1993 Michael Junge. was a resident of Dar es Salaam. While 'in Dar es Salaam he eaw an advertisement in the Daily News dated ~.10.93 to the effect that Western Zone Tobace.o Growers Co-Operative Union Ltd (WETCU) were inviting applications to fill the vaoant post of f~rsonnel and Administration Manager. He applied for the said vaeant post. By letter no WETCU/A/VOL.I/1 dated 31.12.1993 he was employed to fill the said vacant post. He was employed with effect from 3.1.1994. l'n April 1 1994 the :POst of General Manager fell vacant. WETCU Bc,;:rr~ appointed Junga to be Acting 1-,eneral Manager. In August, 1994 Junga applied for the post of General Manager. By letter no WETCU/TBP/c/1/4 dated 24.8.1994 Junga was appointed General Manager with effect from 1.10.1994. By letter no WETCtVTBWPF/32/20 dated 20/3/1997 Junga•s employment was terminated. The said letter of termination informed Junga, among other things, that among his terminal benefits, will be the cost of repatriation to his home. When it came to payment of terminal benefits it transpired that WETGU were prepared to repatriate Junga and his family to Mpanda instead of Dar es Salaam as Junga had expected. Dissatisfied, Junga Instituted a suit against WETCU claiming a total of' Shs.6531 986/75 being the cost of repatriation to Dar es salaam less Shs.189,525/= already paid to him as the cost of repatriation to H/C Civil App. No~34f28 ( 2 ' Mpanda. In their written statement of defence WETCU denied liability. ln the alternative WETCU claimed to set - off the amount due to Junga against Jungats liability of Shs.6,438 1 778/55 being outstanding safari imprest and staff loan adyances for the 1eriod 1994- ,5. WETCU also counter - claimed against Junga the said sum of Shs. 61 4~ 1 778/5,? as well as general damages amounting to Shs.31 000 1 000/= in respect. of Jungat s c0 ntinued ocoupation of WETCU' s :residential premises sinee the date he was notified to vaeate the said premises after termination of his employment. The R.M. t S Court found in favour of Junga and dee.reed that:- ( i} Junga be paid Shs.653,986/75 being terminal benefits and salary wrongly deducted1 ( ii) Junga and his family be paid subsistence allawance till of the dateepatriation to Dar es Salaam. (iii) That Junga should continue to stay in WETCU'S house until he is repatriated to Dar es Salaam. Dissatisfied, WETCU have appealed to this court. At the hearing of this appeal the Appellant was represented by Mr. Boaz1 learned advocate and the Respondent l'l,ad the services of Mr. Mtaki, learned advocate. !n the memorandum of appeal ~swell as in his oral submission Mr. Boaz advanced five grounds of appea1 1 namely: 1. That the trial magistl'ate erred in fact and law when she held that the appellant was liable to :repatriate the respondent as alleged or at all. 2. That the trial magistrate erred in law and fact in awarding the respondent subsistence allowance. :;. That the trial magistrate erred in law and fact in not finding that the respondent has become a trespasser in the Appellant• s house and in not evicting him and awarding the appellant damages as well as rnesne profit for the trespass. ( 3 ) 4. That the trial magistrate erred in fact and law when he· held that the appellant• s counter claim for staff _l~an,· outstanding safari imprest and fuel advanees was not proved despite abundant oral and documentary evidence. 5. That, the judgment of the trial court contrarenes the law. It would appear that the first three grounds of appeal hinge en the issue as to whether the Employment Ordinance, cap. ;60 is or is not applicable in this matter; and if applicable, whether or not the respondent was brought to Tabora from Dar es Salaam by the Appellant; and whether the procedure for invoking the Ordinance Empl.oymenteas complied with by the resident. Mr. Boaz argued strongly that the respondent was not entitled to the terminal benefits awarded by the trial court, namely, cost ef repatriation and subsistence allowance because no sueh provision is made in the employment agreement and the Employment Ordinance ia not applicable. Mr. Boaz argued that the Employment Ordinance is not applicable to employees earning wages at the rate of Shs.8 1 4o0/= per annum and above that as the Respondent, as General Manager, was earning a salary of Shs.63,oOo/= per month, the Ordinance was not applicable to him. Mr. Boaz argued that even if the Ordinance were appli~ble the Respondent was not entitled to the benefits awarded by the trial magistrate for two reasons: First that he was not brought to Tabora from Dar es Sru.aam '_;!1:;:::. when he was employed as General Manager., That he was recruited in Tabora. Secondly that the procedure for invoking the ordinance was not co~lied with in that the Respondent did not report to the Labour Officer the Appellant's refusal to repatriate the Respondent to the place from which he was brought as required by section 1 YJ of the Employment Ordinance• These arguments were strongly opposed by Mr. Mtaki. I will not ge into Mr. Mtakifs argument in detail.. I will revert to them at appropriate stages of my judgment. .. • HL~·.civflj.RR,~N~.$/98 . ( 4) It is not in dispute that the Respondent's letters of appointmente . - . made n~ provision regarding repatriation. Hence right of repatriation at the expense of the Appellant. depends on the applicability of the Employment Ordinan~e. Section 2 of the Employment Ordinan.ce defines •mployce as follows: "'Em_pleyet means any person who has entred into or workd.a under a contract of service with an employer whether by way of tn3nual labour, clerical workt or otherwise and whether the contract is expressed or is oral or in writing"• Hence I am inclined to be in agreement with Mr. Mtaki 1 s contention that -the definition is wide enough to include the Respondent. Section 1 (3) of the Employment Ordinance provides: "The Minister for labour may by Order in the Gazette exempt . a:ny public authority or class of Public authorities'or any pers•n or class of persons from the operation of this Ordinance or of any provisions thereof or of any regulation or grder made theret.UJ.der". All my research efforts have led me to believc;,>that the exemption order now in force is G. N. 26 of 1961. J?a..ragraph 2 or this order provides. "2 - (1) subject to the provisions of sub-paragxe.ph (2)~ the persons and classes of persons listed in the scedule hereto $hall. not, as emplo~es, be subject to the privisions of Parts IIl (with the exception of s-:ction 14A), IV, V, VI, VIII, IX, IX and XI !tf the employment Ordinance nor to ~e privisions of the following. Regulations made under that ordinance:- (a) The Err.ployment ( Recruitment) Regulations. (b) The Employment ( Contracts of Service RegulationsL . j (c) The Employment (Protection of wages) Regulations. (d) The Employment (Provident Fund) Regulations. (2) Nothing in this order shall be construed as exelbpting any person from any of the provisions of the Employment Ordinance er regulations made there nder in his oapacity as an employer •r u reoruitez.tt. ( 5) The class of persons listed in the sc~edule inolude, am,ng others, any person who is in receipt of wages exceeding eight thousand four hundred shillings per annum or the equivalent monthly rate. There is appended to the order an explanatory not as follews: 1'EXPIONATORY NOTE (This note does not form part of the Order but is intended to indicate its general purport) The effect of this order is to exempt the persons listed in the schedule, in so far as they are employees, from those pa:rts of the Ordinance and from those regulations specified in pargaraph 2 ( 1) • The order does not have the effect of enabling any person to escape any obligation imposed on him by or under the Ordinance in his capacity as an employer or recruiter." It appears, therefore that the order exempts the said employees from the operations of those provisions of the Ordinance and regulations mentioned in paragraph 2 ( 1) of the said Order but does not exempt employers from their obligations under the Ordinance. Hence when the definition of "employee" in section 2 is read together with the Employment Ordinance (Exemption) Order 1961 (G.N. no 26 of 1961) it is clear that Respondent is covered by the provisions of the Ordinance relating to repatriation as at the time of termination of his employment he was earning a monthly salary of more than shillings eight thousand and four hundred. Mr. Boaz argues that even if the Ordinance is applicable the Respondent can not benefit under the provisions of sections 53 and 103 of the ordinance because he was not brought to Tabora by the employer when he was employed as General Manager. Section 53 of the Employment Ordinance provides that an employee who has been brought to the place of employment by the employer or by aJJ.y person acting on behalf of the employer shall have a right to be repatriated at the expense of the employer to his place of engagement ( 6 ) on the termination of the contract of employment. Subsection (2) of section 53 provides that where the family of the employee his been brought to the place of employment by the employer, the family shall be repatriated at the expense of the employer whenever the employee is repatriated or in the event of his death. There is no dispute that the Respondent was brought to Tabora from Dar es Salaam when lilia was first employed by the Appellant as a Personnel and Administrative Manager in 1993. Mr. Boaz1 s contention is that the Respondent was engaged as a General Manager while he was in Tabora and therefore he is not entitled to be repatriated to rares Salaam or at all in terms of section 53 '• and 103 of the ordinance. Such argument holds no water. The Respondent's employment contract as Personnel and Administrative Manager was not terminated before being employed as General Manager. Although. he applied for the post of General Manager, his being appointed for the post was by way of promotion. The Respondent's letter of appointment as General Manager, no WETCU/TBP/PF/r/1/4 dated 24.8.~4 ( exhibit 1>2) reads in part as follows: "Kwa niaba ya Halmashauri ya WETCU napenda kukuarifu kuwa uteuzi huu unakuja kwa.ko baada ya wewe kuajiriwa na WETCU kQ.ma Mt,ne ja Utumishi na Utawala tarehe 3 Janua"1, 1994. Halrnashauri imezingatia utendaji wako wa kazi kipindi ulichokuwa mtumishi na imekuteua kushika wadhifa huu wa na juu kabisa katika chama kikuu ikiwR.limani kubwa kwako''•· The Appellant having brought the Respondent to Tabora From Dar es Salaam and engaged him as Personnel and Administrative Manager and then promoting him to the post of General Manager, the Appellant cannot be heard to claim that it did not recruit the Respondent from Dar es Salaam. The Respondent is clearly entitled to be repatriated to Dar es Sla.am, his place of engagement, at the expense of the Appellant. ( 7 ) H/C Civil, -App. No.34/98 The second contention is that the Respondent is not entitled to be repatriated to his place of engagement at the expense of the Appellant because the Respondent did not route the dispute between him and the /\ppellant through the I,abot!r :: fficer as required by section 1:,) of the Employment ·Ordinance. Section 130 provides: ''Wherever an employer or employee shall neglect or refuse to fulfil the terms of any contract of service, or whenever any question, difference or dispute shall arise as to the rights or liability of either party to a contract of service, or touching any misconduct neglect o~ ill-treatment of or by such party, the party aggrieved may report to a labour officer who shall threupon taken such steps as may seem to him to be expedient to effect a settlment between the parties." Section 132 provides that where on receipt of a report under section 130 a labour Officer is unable to effect a settlement between the parties he may, at the request of either party or on his own motion, submit a written report to a magistrate setting out the facts of the case. It is clear from the above provisions that is is not oompulsocy to report a dispute to the labour Officer and that even where a dispute has been reported to a labour officer and the labour officer has been unable to effect a settlement between the parties, the Labour officer has a discretion to submit a written report to the magistrate or not to submit such report. In any event the Respondent is exempted from the provisions of Part XI of the Ordinance. :Part XI comprises sections 1~ to 154 of the Dnployment Ordinance. Hence the Respondent was not required to comply with the provisions of section 1;,0. He was entitled to come to court by lodging a plaint as he did. The next question .is what are the expenses of repatriation. Section 103 ( 3) provides: ( lt ) 11 The expenses of repatriation shall include - (a) the cost of travelling ~nd subsistence expensions or rations to be the place of engagement; (b) subsistence expenses during the period, if any, between the date of termination of the contract and the date~£ repatriation"• The learned triaJ. magistrate was, therefore, right to award the Respondent the subsistence allowance as she did. It is al.so logical that subsistence allowance in the circumstances of this case ' should include accomodation. Hence the Respondent was entitled to continued staying in the house he was staying with his family before termination of the contract of service until repatriation is effected. He was, therefore, not a trespasser in the so.id house. In case I am wrong in construing the Employment Ordinance (Exemption) Order 1961 (G.N. No 26 of 1961) I will now consider the contention by Mr. Mtaki that the appellant is estopped from denying that the Respondent is entitled to be repatriated to Dar es S!!laam at the appellant's expense. In the letter of termination no WETCU/TBIVPF/32/20 dated 20.3-1997 (exhibit P3) the appellant stated; inter alia: 11 4. Hivyo basi kwa barua hii unaa.chishwa kazi uanzia tarehe 20.03.1997. Kuachishwa kwako kazi utakuwa na hald ya kulipwa stahili zako zifuatazo: (i) - - - - (ii) - - - - (iii) - - - (!'llJ) - - - - ( v) Malipo ya nauli ya familia na mizigo tani tatu ( 3) kukurudisha nyumbani kwenu. (vi) - - - ,... - - .. nyumba 6. Kwa ku:wa unaiehi katik8lya union, kabla -ya kuondoka, utataldwa kuikabidhi nyumba hiyo kwa Afisa Utumish:i/Utawala M-tandamizi. Umepewa mud.a wa kufanya hivyo katika muda usiozidi siku 21 (ishi.rini na moja) kutokea siku utakayokuwa umelipwa haki zako zote., 11 ( 9 ) It is clear from this letter that the Appellant promised to repatriate the Respondent to his home. The Appellant also promised the Respondent that the Respondent was entitled to stay in the. house he was staying prior to termination of employment till he is paid his terminal benefits f\~,l.ly, Such promise amounts to promissary or equ.itable estoppel. In Halsburyl s Laws of England, Third edition, Vol. 15 at Pe 17' it i• stated: 11 344 PROMISSORY ESTOPPEL. When one party has, by his words or conduct, made to the other a promise or assurance whieh was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards bs .allowed ·to- 'J'9'rert to tbeix- ~ - legal relations as if no such promise or assurance h~d been ma.de by him, but he must accept their legal relations subject to the qualification which he himself has so introduced: COMBE V.R.COMBE (i951) 1 All E.R. 767 at P. 770 per Denning9 L, J. 11 In the instant case exhibit P3 was clearly intended by the Appellant to be acted upon by the Respondent. As a result of such promise the Respondent must have had the expectation of being repatriated to I:,3.r es Salaam at the expense of the Appellant, and hence decided to stay in the Appellant's house until the promise of being paid repatriation expenses to the place of engagement was fulfilled. The Appellant is therefore estopped from reverting to their previoue _legal relations as if no such promise had been m':lde. Promissory estoppel, however, does not create a cause of actio~, it operates to give a negative protection, It is a shield and not a sword, 1n MUWI JETHA LTD V. COMMISSIONER OF INCO~ TAX (196?) E.A. 50 it was held, inter alia, that the plaintiff's claim must fail because the plaintiff was seeking to use the principle of equitable e-stoppel to found a cause of aetiqn. · !!(c Civil.App. No.34/98 I ( 18 ) Hence in the instant case the respondent oan plead promiss,ry estoppal in order to keep the benefits already paid o·r enjoyed by ,, him sueh as the amount already paid to him or the benefit of haTing stayed in the Appellants house. He cannot rely on pramiseoiey estol"Jlel in order to recover the amount of repatriation expenses not yeti... paid by the Appellant. ,. I now turn to the fourth greund of appeal. There appears te be some merit in this ground of appeal. There was evidence addueed at the trial to the effect that the Respondent at the time of termination ef contract of service, had unretired safari imprests as well as staff l.oans still outstanding. There are discrepancies as regards the amount between the evidence of r:M2 and DW3. I am of the considered opinion that DW3 version is more credible as DW3 was the credit controller and thus more conversant with tJie tl'8lU58.otion.s. thatl DV/2. DW3 gave a s ~ of fuel allowances in exhibit D 1~ and total indebtednees. iil ,wch:i.bit D 1.9. With regard to fuel allowance I am in agreement with the learned trial magistrate that fuel was issued for official use and as no evidence has been adduced to the effeet that fuel was not used for the purpose for which it was issued there is no basis for requiring the Respondent to repay such 'fuel. Exhibit D 19 indieate claim against the Respondent in respect of staff loan, unretired safari imprests and fuel allowanee as ~s. I 6,070 11 6~35. Frofu this amount should be deducted Shs_-2,ll4,7.l.t6/: ;. being fuel allowance as indieated in exhibit D 18. The fifth ground of appeal ·was to the effect that the learned trial magistrate's judgment contravenes Order 20 Rule 4 of the ·civil Procedure pode, 1966 in that it does not state issues for determination and that no reasons for judgment are given. ~ e r 20 Rule 4 provides: "Judgments shall contain a concise statement of the ease, the points for determination, the decision thereon, and the decisions for suoh decision." ( 11) The recordi::~ of preaeedings indicates that issues were framed. The said issues were again.::1. repeated at the commencement of the trial magistrate's·judgment. The decision on these issues were made as well as reasons for sueh decision are clear from the judgment. It is also clear from the record that advocates for both parties decided not to make axi.y submissions at the conclusi•n 6f the t~iaJ.. SArBa This may have ca~sed t_ 'difficult to the learned trial magistrate in writing her judgment. This ground of appeal. also fails. The end result then is that grounds ef appeal one to three and five are devoid of merit. Ground four partly succeeds in that the Respondent must refund the unretired safari imprest and outstanding staff loans to the Appellant. But the Respondent cannot be made to account for fuel iswed for effieial duty. F.ach party to bear its own, costs·. --.'-·,.,u_ . :+1+·/!-{;'·. . . --~. t' / :...... ·.A. '·· :: D.M.M\1ITA. JUDGE Delivered in Chambers in the presence of Mr. Beaz, Advocate for ! the Appellant and Mr. Mtaki advocate for the Respondent this 2nd day of September, 19;;)9• JUDGE