K.K. KIBAYA v U.A.C. OF (T) LIMITED 1996 TLR 76 (HC)

 

K.K. KIBAYA v U.A.C. OF (T) LIMITED 1996 TLR 76 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mkwawa J

B

CIVIL APPEAL NO. 11 OF 1990

20 February, 1992

(Appeal from the decision of the Court of the Resident Magistrate, Kisutu) C

Flynote

Contract - Contract of employment - Wrongful termination - Reinstatement of

employee to previous position - Claim by employee for various allowances owing and

incurred during the period of his suspension. D

-Headnote

The Appellant was employed as a `technical communicator' by the Respondent.

Subsequent to the Respondent terminating the Appellant's contract of employment,

the Appellant succeeded in having this termination invalidated by the Court of

Appeal (Civil E Appeal No. 36 of 1987). The present appeal is lodged against the

finding of the Resident Magistrate, Dar es Salaam, at Kisutu, allowing the Appellant

only 15,000/= for medical expenses, and dismissing his claims for `depreciation

allowance' and `tools box allowance' incurred during the period of his suspension

from the Respondent. F

It was not in dispute that his position at the Respondent entitled the Appellant to

these allowances. The trial court dismissed the claims on the basis that the Appellant

was not employed by the Respondent during the period of his suspension and

accordingly did not render any services to the Respondent warranting the claims. G

Held:

(i) The Appellant failed to comply with the Respondent's circular

governing medical claims in that he did not consult any of the approved medical

organisations and institutions.

(ii) Once there is an order for an employee's reinstatement, he is entitled to

all his H rights as the contract of employment has revived with all its incidents.

(iii) The Appellant's claims for the two allowances are upheld, and the

appeal succeeds in respects of those two claims.

(iv) The Appellant is allowed his costs in this Court and in the court below.

I

Case Information

Order accordingly.

1996 TLR p77

Cases referred to: A

1. Measure Brothers Ltd v Measures [1910] 2 Ch 248

2. Tanzania Harbours Authority v Wendelin Ludger Civil Appeal No 8 of

Dar es Salaam Registry (unreported)

Adamjee, for the Respondent. B

[zJDz]Judgment

Mkwawa J: This appeal arises out of the judgment and decree of the learned senior

resident magistrate of the Court of the Resident Magistrate, Dar es Salaam at Kisutu.

Before the lower court the appellant had inter alia filed claim for medical expenses, C

depreciation allowance and tools box allowances. Those claims were dismissed by the

lower court and being aggrieved with the said decision the appellant now appeals to

this court.

It is common ground that the suit which gave rise to the instant appeal springs from

the D decision of the Court of Appeal (Civ App No 36 of 1987) which invalidated the

appellant's termination of employment. It is further common ground that consequent

to the decision of the Court of Appeal the appellant was reinstated to his previous

employment namely in the respondent's/defendant's company where he worked as a

technical communicator. It is further not in dispute that the appellant by the virtue of

his E position in office he was entitled to various allowances. He was thus entitled

inter alia to allowances like `depreciation allowance, tools allowances and medical

allowances.'

The trial court disallowed the depreciation and tools allowances solely on the ground

that F during the period of his termination he was not in the employment of the

respondent and he thus did not render any services to the respondent to warrant him

to base the claims now before me. The appellant had put up a claim of Shs 49,130/= as

his medical entitlement. The trial resident magistrate allowed Shs 15,000/= only and

disallowed the G rest of the claim.

I feel constrained to mention right from the outset that there has been no crossappeal

from the respondent company. This being the state of affairs this court is only

called upon to determine the appeal of the appellant/plaintiff and this is precisely

what I will do H though I have my reservations and misgivings in that some of the

claims that have been allowed by the trial court. But for the forementioned reasons I

will refrain from making any further opinion on them as I have not been called upon

to do so.

I The appellant in his memorandum of appeal takes the following grounds:

1996 TLR p78

MKWAWA J

A `1. That the learned trial Senior Resident Magistrate erred in law in

holding that I be paid Shs 15,000/= for medical expenses, and not the full amount as

per the produced receipts.

2. That the learned trial Senior Resident Magistrate misdirected himself in

not awarding me the depreciation allowance which was payable during leave period

too. B

3. That the learned trial Senior Resident Magistrate misdirected himself in

not awarding me the tools box allowance which was also payable during leave

period.'

Before the lower court and in this court the appellant who appeared in person urged

the C court to allow his claims on the following grounds:

As regards the medical claims the appellant has maintained in both courts that he was

entitled to a refund of the expenses he had undergone principally on the basis that the

medicines/drugs that he had purchased were not available in the clinics D

authorised/approved by the respondent company.

I now turn to the other claims, namely the depreciation and tools allowances. Here

the appellant contends that as the termination was unlawful and that he did not

contribute to E the anomalous situation the employer is under obligation to pay him

his allowances.

In rebuttal Mr Adamjee for the respondent company argued that generally the

appellant can not be paid the allowances in question as at the relevant period he was

not physically engaged in any official duties on behalf of the respondent/defendant.

Coming to specifics, Mr Adamjee submitted as follows: F

The appellant could not demand to be refunded the expenses he incurred in meeting

the medical bills because he did not follow the rules and procedures laid down by the

G respondent company. Mr Adamjee submitted that a circular was issued by the

respondent company to its management staff, giving names of approved medical

organisations and institutions. The available evidence has amply shown that the

appellant did not consult any of the approved organisations.

As regards the appellant's claim for depreciation allowance, Mr Adamjee submitted

on H behalf of the respondent company that the claim was baseless because the use

for the vehicle should be for `official company business'. It could not be argued that

at the relevant period the appellant was using his vehicle for official company

business as his services, during the relevant period, had been terminated. I

Last but not least Mr Adamjee addressed the court in respect of

1996 TLR p79

MKWAWA J

the tools allowance. Here again, he submitted that the appellant was not there to use

his A tools. He could not therefore lay any claim on the use of tools as he did not at

all use them for the company's business. The crux of the matter is whether the

appellant is entitled, in law, to be paid the allowances in question under the

forementioned circumstances. B

I will begin with the medical claims. It is beyond dispute that the appellant failed to

comply with the circular governing medical claims. I respectfully accept Mr

Adamjee's submission that the appellant's claim cannot succeed. The appellant had

shown total C disregard for the respondent company's instructions in respect of such

claims. I have considerable difficulty in seeing how he should succeed on this ground.

For the foregoing reasons this ground fails and it is accordingly so ordered.

I now turn to the depreciation allowance and the tools allowance which I shall deal

with D collectively. It is not in dispute that the appellant did not work for the

respondent at the time, he was terminated. Bearing this in mind it would be wrong to

ask the respondent to pay the appellant the allowances he is now claiming. All things

being equal this would amount to unjust enrichment by the appellant. E

On the other hand it has been argued by the appellant that he did not contribute to

this anomalous situation. He was in this case ready and willing to work for the

respondent but, as the evidence amply demonstrated, the respondent would not let

him work. Admittedly an allowance is not a salary. But, it is common knowledge that

allowances F are paid out to employees to augument the otherwise low statutory

salaries. In the instant matter the lower court has allowed the appellant's claim for the

unpaid salaries during the material period and as I had indicated much earlier on the

respondent has not cross-appealed to challenge the said decision which I must say is

sound in law. G

As it was held in the case of Measure Brothers v Measures (1), which was quoted with

approval by this court by Mnzavas JK (as he then was) in the case of Tanzania

Harbours Authority v Wendelin Ludger (2), that: H

`it is elementary justice that one of the parties to a contract shall not get rid of

his responsibilities there under by disabling the other contractor from fulfilling his

part of the bargain'.

In the instant matter the respondent company wrongly terminated the appellant from

I work. Can he now turn round and say

1996 TLR p80

that the appellant is not entitled to what he would have received had he been in A

employment. I do not hesitate to answer in the negative. Once there is an order for

reinstatement the employee is entitled to all his rights as the contract of employment

has revived with all its incidents. This appears to be the principle enunciated in

Wendelin's case (supra). In my view to hold otherwise would make neither equity,

justice or even B sense.

For the foregoing reasons these two grounds of appeal succeed and it is accordingly

ordered so.

The appellant is to have his costs of this court and that below. C

1996 TLR p80

D