IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(CORAM: LUBUVA, J.A, RUTAKANGWA, J.A & KILEO, J.A.)
CIVIL APPEAL No. 49 OF 2004
THE ATTORNEY GENERAL APPELLANT
VERSUS
1. AHMAD R. YAKUTI
2. W. M. J. FERUZI RESPNDENT
3. NASSORO S. UMMI
(Appeal from the Judgment and decree of the High court
of Tanzania at Dar es Salaam)
(Kimaro, J.)
Dated the 25 th day of May, 2003
in
Civil Case No. 365 of 1998
JUDGEMENT OF THE COURT
13 Nov & 7 Dec,2006
RUTAKANGWA, J. A.
The three respondents in this appeal, together with many
others whom they are representing, were employees of the then
Friendship Textile Mills Ltd up to 30th March, 1997 when their
employment was terminated by way of retrenchment. The
circumstances surrounding their termination made them eligible to be
paid some terminal benefits. However, these benefits were not paid
immediately. The first payment began to be effected after a lapse of
more than one hundred (100) days and they were not all paid on the
same day.
\
After they had all received what their employer, the
government which took over this responsibility, believed to be their
full benefits, the respondents thought that their entitlements were
underpaid and not paid at all some other benefits. They presented
their grievances, through their trade union, to the employer. The
stand of the government, the appellant in this appeal, was that what
was paid to them was what they were entitled to. The ex-employees
through the three respondents then instituted a suit against the
appellant in the High Court at Dar es Salaam, claiming a number of
reliefs.
After a full trial, the High court (Kimaro, J, as she then was)
was satisfied that the respondents had failed to establish their claims
- except for their entitlement to what was persistently referred to as
"subsistence allowances" for the entire period they were kept waiting
for payment of their terminal benefits. They were also granted costs
of the suit.
In order to appreciate the basis of this appeal we wish to point
out at this juncture that in the High Court the respondents were
2
claiming to be paid Tshs. 7,500/= per day as "subsistence
allowance." Although initially the appellant had categorically disputed
this claim it finally gave in and accepted to pay the respondents if
only the conditions stipulated in section 53 (3) (b) of the Employment
\ Ordinance as interpreted by the High Court in the case of the CRDB
Vs REGIONAL LABOUR OFFICER RUKWA in D. C Civil APPEAL No. 28
of 1994 (Mbeya District Registry) were satisfied.
In her judgement the learned trial judge held that the
respondents were entitled to "subsistence allowance7' but not at the
rate suggested by them. This is how she reasoned:-
Lastly is the issue of subsistence allowance.
There is no dispute at ail that the plaintiffs were not
paid their terminal benefits immediately after
retrenchment. DW 2 said that the first payment was
effected after 101 days. The only question here
is how much should the plaintiffs be paid as
subsistence allowance during the period they
were kept waiting for their payment (emphasis is
ours).
After directing her mind to the submissions of Mr. Mkongwa,
learned advocate for the plaintiffs who had contended that the
respondents (plaintiffs) were entitled to Tshs. 6,000/= per day and
Mr. Chidowu, learned State Attorney, that the court should be
3
guided by section 53 (3) (b) of Cap 366 and the CRDB case decision
(supra), the learned held:-
/ allow monthly salaries to each of the plaintiffs for
the whole period they were delayed in receiving
their terminal benefits.
The plaintiffs claim is allowed in terms of their
entitlement to subsistence allowance for the whole
period their payment of terminal benefits was
delayed, plus costs of the suit, (emphasis is ours).
Surprisingly, this decision aggrieved the appellant although it
was accepted by the respondents. The cause of dissatisfaction on
the part of the appellant was that it was believed that the High Court
had awarded the respondents "both monthly salaries and subsistence
allowances for the whole period the payment of their terminal
benefits were delayed". Unfortunately also, even the decree which
was drawn thereafter and signed subsequently by another judge was
to that effect. Hence this appeal based only on this ground.
Submitting in support of the appeal, Mr. Ngwembe, learned
Principal State Attorney, told the Court that in awarding both
subsistence allowance and monthly salaries the learned trial judge
proceeded in utter disregard of section 59 (3) (b) of the Employment
Act, Cap. 366, R. E. 2002 as well as settled case law. He relied very
4
strongly on two unreported cases of this Court. The cited cases
are:-
(a) NICHOLAUS HAMISI AND 1013 OTHERS VS
TANZANIA SHOE CO. LTD AND ANOTHER,
\ CIVIL APPEAL No. 62 of 2000 and
(b) ATTORNEY GENERAL AND TWO OTHERS VS
ELIGI EDWARD MASSAWE AND 104
OTHERS, CIVIL APPEAL No. 86 OF 2002.
In these two cases this Court decided that under the said
section 59 (3) (b) an ex-employee is entitled to some form of
allowance on the basis of his/her monthly salary for the whole
period one is detained while waiting for payment of terminal benefits.
It is on this basis that Mr. Ngwembe has urged the Court to allow the
appeal with costs and order that the respondents are only entitled to
subsistence allowance as held in the two cases cited.
On her part, Ms. Mruke, learned advocate for the respondents,
- prayed for the dismissal of the appeal with costs as it is totally
misconceived. To her understanding and that is the position of the
respondent, the High Court held that the respondents were only
entitled to be paid subsistence allowance for the entire period they
were kept waiting for their terminal benefits on the basis of each
respondent's monthly salary at the time of retrenchment. She went
on to submit that the High Court could not have granted monthly
5
salaries in addition to subsistence allowance because the respondents
never sought that particular relief in the suit. She therefore, pointed
out that the problem was not in the judgment of the High Court but
in the extracted decree. She accordingly urged the Court to act
under rule 3 (2) (b) of Court of Appeal Rules, 1979 to direct the High
Court to amend the drawn decree so as to bring it in conformity with
its judgment.
We have carefully and objectively gone through the impugned
High Court judgment. We are of the settled mind that the position of
the respondent on what was actually decreed by the High Court is
the correct one. It is an undisputed fact that the respondents had not
claimed for payment of monthly salaries either in the alternative or in
addition to subsistence expenses. Therefore an award of salaries on
top of subsistence expenses would have been contrary to both
procedural law as provided under the Civil Procedure Code, 1966 and
substantive law, under section 59 (3) of Cap 366. The said
subsection provides as follows:-
59 - (3) The expenses of repatriation shall include -
(a) travelling and subsistence expenses or rations
during the journey ; and
(b) subsistence expenses or rations during the
period, if any, between the date of
6
termination of the contract and the date of
B repatriation.
In view of the established facts in this case and the law as
expounded in the cases referred to the Court by Mr. Ngwembe, we
\ agree with both counsel in this appeal that the respondents were
only entitled to be paid subsistence expenses for the entire period
they were kept waiting for payment of their terminal benefits. This
was indeed what the High Court held.
In conclusion, we would like to observe that this appeal was
unnecessary. If one had-read the High Court judgment as a whole
with an open mind, one would have readily realized that the High
Court, after accepting the submission of Mr. Chidowu, allowed the
respondents' claim only to the extent of their entitlement to
subsistence expenses in terms of section 59 (3) (b) of Cap 366 on
the basis of their monthly salaries. That is the import of the last two
paragraphs of the High Court judgment when the two are read
together and also in conjunction with the preceding two paragraphs
- which we have earlier reproduced in this judgment for ease of
reference. There having been no dispute on the issue of entitlement
to subsistence expenses, the learned trial judge, was left with the
issue of how much was to be paid as subsistence expenses and she
adopted the formular suggested by Mr. Chidowu at the trial. The
High Court judgment, therefore, cannot be faulted.
7
However, we are alive to the undisputed fact that the drawn
decree does not reflect what was decided in the judgment. It is trite
law that a decree should always correctly express the judgment given
by the court so that no party suffers any detriment on account of a
mistake or error committed by the issuing court: See MULLA ON THE
CODE OF CIVIL PROCEDURE ACT V OF 1908, 15th edition, Vol.9 at
page 945. For this reason, by invoking the Court's revisional powers
It is ordered that the matter be remitted to the High Court with
direction to the parties to apply under section 95 of the C. P. C. 1966
for the amendment of the decree. The application once filed should
be determined as expeditiously as possible. It is so ordered.
Otherwise the appeal is dismissed with costs.
DATED at DAR ES SALAAM on this 29th day of November, 2006
D. Z. LUBUVA
JUSTICE OF APPEAL
E. M. K. RUTAKANGWA
JUSTICE OF APPEAL
E. A. KILEO
JUSTICE OF APPEAL
I certify that this is a true copy of the original
S. M. RUMANYIKA
DEPUTY REGISTRAR
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