Arther F. Kibona vs Tanscan Timber Company Ltd (Civil Case No. 8 of 1999) [2000] TZHC 457 (1 August 2000)

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::,. , r ·'\1F• IN THE HIGH COURT OF-TANZANIA ..., J ATMBEYA CIVIL CASE NOo 8 OF 1999 ARTHER F. KIBONA VERSUS TANSCAN TIMBER COMPANY LTDo • .. JUDGMENT -.....- . 000000.c•• PLAINTIFF DEFENDANT The plaintiff has brought this action in which he claims a total sum of Shso29,377,400.00 beig due and owing to.him as unpaid terminal • benefits, allowences, salaries, damages for defamation, costs for typing and mail·and what he terms other costs. . ~ . . It is common ground that the plaintiff was, before he retired ' ~ from servite on 1st Januexy, 1998, the defendant's local Branch Manager in this town. Tlie plaintiff swore, however, that four months to the . ., . date on which ht was to retire, he was sent on what has become ·contentious conditions of employment effective from first September, 19970 =• It would appear that the plaintif~~was paid only his salary, he was denied fringe benefits which create a sub-total of Shso552,000.00 as follows:- ' l. security allawarice 0000000000000000 Shs. 30,900.00 p.m • 2. responsibility o.llow:moe 0000000000 3o en.tertainment. allowance • o., o o. o o o o. 4. lunch allowμnce 0000000•0000•000••0 ~ 5o telephone allowance oooooo•oooo•••o If VI 60 electric.i ty allowance • o o o ••• o o o o • • 11 7 • water bill • o •••••••• o o ••• o o., o. o o o. 11 ' ! .. '.\ 20,000 .. 00 p.m. 30,00090 p.m. 25,000.,00 p.m. 20,000.,00 p.m. 10,000.00 p.m. 03,200.00 p.m., According to the evidnce of the plaintiff, which was not controverted by the defence, he was sent on compulsory leave to follow-up debts owing to his employer regarding timber products he had sold on credit to a firm known as M/S Ulili Enterprises and other debtors I, •C •• ' amounting to Shs~lo,364,147.,8_5. Prior to this alleged leave the

2 - plaintiff had been summoned to appear before the Board of Directors on 11th June, 19970 According to a letter he received from the General Manager (Exhibit Pe9) the plaintiff was informed that the Bom-d of Directors resolved that the debts would hnve to be recovered from his retirement benefits if they were not settled sooner. It seer;1s that this decision was reached because the plaintiff is alleged to have sold timber products contrary to his employer's authority because Exhibit P.9 states that the lU:,ili debt had no prior approval ;f the General Manager. So the plaintiff was informed by his employer, vide Exhibit P.9, in the second paragraph, that - • 7 Bearing in mind th2t you are scheduled to retire in January, 1998 the directors instructed that you should truce time to make a close follow up on the Ulili debt and other big outstanding debts before you retire. In order to give you enough time, the Directors agreed that you should be given paid leave with effect from 10th September, 1997 so that you have plenty of time to collect the debts.ooon• 'It is the plaintiff's case that while pursuing the collection of debts he was entitled ns well as to the allowances he claims becrrnse he was still-in the employment,of·the defendanto He therefore claims a total sum of Shs.628,000.00 under this head being an accummulated sum for the per diem allowances he ought to· have re~9ived while he was in • • Dar-es-Salaam following up on debts. 'l'here is a clair.i for a sum of Shs.876,000.00. 'This claim is based on Exhibit P.l. He swears that this sum is constituted by underpayment of allowances to him after the letter authorising them was deliberately delayed to reach him in 1996. It reached him on 20th January, 1997 while it was written on 1.1.1996. According to Exhibit P.l Branch

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• 3 - Managers were entitled to Shs.50, 000., oo,. as housing allowance., The plaintiff added the following 11 60,000/=, MBY 11 , implying that his housing allowance was Shs.,60,000/= per month. Lunch allowance was Shs"25,000.,00 per month; Shs.,20,000.,00 ns entertainment allowanc-e; Shs 0 30,000.,00 as security allowance; nnd unspecified 3mounts for telephone and electricity bills and tho cost of medicamentso The plaintiff claims a further sum of Shs.,320,000.,00 being retirement benefits in terms of a volunt3ry agreement between the employees and the employero This claim is not backed up with any docum~ntnry evidence, such as a collective agreement that was regis- tered at the Industrial Court of Tanzaniao In the 1996/97 leave cycle the plaintiff could not travel because he was called upon to hand over his office to his successor at a time he was due to travel,be said., He claims a sum of Shsol35,000.,00 under this head., i,nd he claims a total of Shs.,180,000.,00 for sundry expenses 0Yising from cost of mail to his mployer concerning his claims., The plaintiff was, unclisputablr_, entitled to repatriation at his employer's cost.when he retired., He now cl3ims a sum of Shs.2,299,000.,00 unGer this being allownnces he was to be paid while awaiting his repatriation as of the date he filed his pleading 0 Under this head there is also a claim for Shse5,600,000.,00 which, by the time he was testif?ing? he said had grown to Shs.15,220,000.,00., This claim is made under paragraph 7 (g) of the plaint., There is, in addition to employment benefits, three claims for • t ~ .. damages arising out of alleged defamation., The first claim under this head is contained in paragraph 8 of the plaint., It is founded on events that occurred soon after the plaintiff handed over his office pending his retiremente He handed over the office and company property, ' including timber then lying on the defendant 0 s yard, to Mr. A.Ge Kitururu . . . oee/4

.... 4 ... (DW.l). Months after the handing over the defendant informed the plaintiff that of the timber he had handed over 4o% was reject material. As there is ' . some reject tiraber at any given time, this accusation is considered defamatory by the plaintiff. So he clair.Js rlamac;es in the sum of Shs •.. 10,000,000.00, because he handed over good quality timber. The second claim for damages for defarne.tion relates to M/S Ulili Enterprises' liability.- He claims that he was labelled a thief in that the allegation tended to show that he hRd stolen from his employer, the defendant. For whereas his employer claimed that Vi/S Ulili Enterprises owed it a sum of Shs.3,602,762/95, the outstanding balance was only a sum of Shs. 3,102,762/95. Under paragraph 10 of the plaint the plaintiff claims another sum of Shs.5,000,000000 based on an alleged defamation for being labelled a thief a second time. In this connection there is evidence that the plaintiff took a sum of Shs.50,000.00 as llowances for an official journey to Sumbawanga .. He testified that the General Manager accused him of having pocketed the money and never went to Sumbawanga. The defendant has c'.enied liability .. Mr., Aston Gileadi Kitururu (DW.l) and Ms4 Christina Chamungwana (DW.2) admitted that the plaintiff was indeed sent on leave with full pay but was told th;c1t he was not to receive allowances., It is the defence case that according to Company practice an officer on leave will not receive allowances That responsibility allowo.nce is paid to a manager in active service,. Similarly this applies to entertainment allowance as well. He could not entertain company buniness associates while he was on leave. Nor could he have been paid night out allowances while in Dar-es-Salaam because he had been told that the allowances had been withheld, and that he would meet the costs. So the defen-::1.ant does not admit the amount of Shs.628,000/::: the plaintiff claims in this regnrd. .. •• /5

• 5 As to the sum of Shso876,000/= claimed as underpayments, the defendant does not admit that the plaintiff was underpaido He was the leader of the company; if he had been underpaid he could have demanded the payments nnd if he was entitled to it he had power to effect paymento EY.hibit P.l barned retrospective paymentso As to Shsol,299,000/= as costs for repatriation, it is th~ defenle case that all arrangements were finalized but he refused payments 0 That the company issued him a cheque which he refused to accep-.,,. They computed his claims according to Company.regulations •. In adition, tis alleged that the Company offerred to hire -a motor vehicle 6r gie him Shso6O,000/= which w the cost of hiring the motor vehicle to his home in Ilejeo He refused both offers becaus~. it is alleged that he lives in towna The defendant has not paid Shs~325,000/= as his dues from a voluatory agreement because they have no such agreement. If there is such an agreement he has a duty to produce it. DW.l has sworn that the plaintiff was required to claim the sum of Shs.135,000o00 as leave allowance when going on leaveo An employee forfeits it if he does not go on leave. The plaintiff forfeited it because he did not go on leave. The claim fo Shsol80,000/= he incurred while communicating with his employer is equally denied as it is considered to be unjustified because the Comp.my does not have such procedureso DW.l cannot recollect that Mro Kibona wrote· to them and demanded to be refunded the cost of mailing the letters; it may be possible that he did so, he saido The defendant contends that the plaintiff has never been defamed as it is normal in the course of employment for one to. be told that he handed over rejects. Timber can rot if improperly kept; rejects can f' ...

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• 6 - also come out of undersizing the pieces of timber. There is, therefore, no defamatory material in the letter (Exhibit Pe9) which notified him of the presence of rejects in the timber he handed overo It is further contended that the plaintiff was querried about timber he sold to Vv'S Ulili Enterprises; he was not insulted.· The plaintiff has never been called a thief regarding this episode. No is there any defamation when the plaintiff was called upon to account for the sum of Shs.50 1 000.00 he received as travel allowances f,r his journey to Sumbawanga. 't'he defendant has raised a counter claim in which they claim a sum •• of .Shsol6,313,276.55 as sales of goods. This claim is based on the testimor;y of the plaintiff in which he stated that when they bought trees ,} from the Kawctere Forest Project the latter would leave some of its money with the plaintiff's office~ That money would then be spent by the plaintiff's office for the purchase of machinery spare parts. The spare pai:-ts'would then be collected by the Kawetere Forest Project. According to the testimony of DW.l and DW.2 the spares the plaintiff claimed to have bought on behalf of the Forest Project did not reach their dcstinatioil.. DW.,l prod°i1ced as ·Exhibit D,l, D.2 and D.3 sets of accounting documents to:support the defence case. In addition, the defence deniss that the;e was any arrangement under which the defendant bought anything on behalf of acyone else. It is also claimed that the spares were not entered into their Ledger nor did the Kawetere Forest Project acknowledge receipt of spares and that, therefore, their account with the defendant be debited with the cost of those purchases. The defendant further claims a refund regarding credit sales the plaintiff made without authority. It is alleged that anyone who authorises credit sales does so at his own risk. Some such debtors repaid the money they owed the company, some amounts are still outstanding.,, Under this item the deferrdant ~laims a sum of Shs.5,-571, 1 +46.55. ·DW.l ;· .•. /7

.. 7 ~ · br6ught statements of accounts of those who owe the Companyt A list of the people who bought goods on credit was tendered as Exhibit Dl4 and the statements: of account in relation to them was tendered as Expibit Do5• It is common ground that the plaintiff paid himself Shs6oooo.oo as housing allowance. It is the defence case that he was entitled to Shs.50;000.00 only. So they claim the sum he paid as house rent in excess of the authorised amont of Shs.50,00000. Payment voucher through which he effected payment were tendered as Exhibit D.6. The defendant, therefore, claims a total of Shs.200,000.00 under this headt. The plaintiff has not repaid this money in spite of being called upon to do so, That, in esence 9 was the eviden,ce. The issues wh:Lch I am now called upon tc dt.ermine, after having considered the pleadings in the light of the evidence are as here under, namely:- 11 whether the plaintiff was $ent on unpaid leave for four months as alleged in para 6 f the amended plaintt 2 whether the plaintiff is entitled to the allowances listed in" para 7 of the amended plaint; 3. whether the plaintiff's letter to the defendant dated 23rd October 1997; was defamatory.; 4, whether the defendant's letter dated 1/8/W was defamatory; 5, whether the plaintiff was named a thief as averred in paras 9 and 10 ?f the amended plaint; 61 whether the defend~_nt i! entitled to the sum of Shs~l6,313,276,55 I as per counter claim; and any other reliefs the parties are entitled too The evidence on record shows quite clearly that when the plaintiff was sent on leave he was paid only his salary. However, even though this was done, the plaintiff avers in paragraph 7 of his pleading that it was unpaid -~eave. The impression one gets from;the plaintiff's version of facts is that in order to constitute paid leave he had to be paid the ••• /8

. • . ') . ~ .-,- .-.,.;. - ·.· 8 allowances he received as well. Now what is paid leave? In my view paid leave is the period an employee takes off f?'.'C;lTI his.work, with the express permission of the employer fo;r- a period specified in the contract of employment in that behaJfo It follows that paid leave is such period when the employee is allowed to be away from his wort with full salary. . . What, then, is the salary to which an employee is,.entitle1 when he is on paid leave? The learned authors of Black's Dictionary, Abridged Sixth Version, define the word r 1 salary" to mean:- 11 A reward or recompense for services performed •ooo A stated compensation paid periodically as by ,the year, month or other fixed period ODO;JO Thus the term Hsalary;;, as is the usual practice which I t.atf: _;judicial -:··•·.• . . notice of, is a fixed regular payment made by an employer to his employee '. ··,·:·,· • for professional, manual or office work composed qfa pr~-determined amount , . . . . '.. . .... , ' .,. ; : , of money which is. one, of the principal t::r-ms__the contra,ct of eviployment-. :::.· ., . 'l 1 here are, incidental: to the salary, fringe benefit~ termed : 1 allowancesn which are also pre-'determined -and which·:are paid at regular periods forming part of the i)ickage ah emr;ioye'e' takes home· on the date he is paid his salary. Like a salary, once;given allowances become an implied term of the contract of employment and cannot be withdrawn or withheld without just excuse, usually by way of penalty or during a lawful layoff, for they -~ , form part of the monthly recompense to which an employee who is paid a monthly salary receives at the,. end of the montho If, therefor~, an employee goes on paid leave, he is entitled to his salary and to the allowances which are paid to him by reason of, and in the course of, his employment., Being part of his monthly package and in the absence of any justification for withdrawing the allowances, to withhold them for any . ··--:.-: other reason a~ounts to punitive actiono If that be the case, an 0 0 ./9

Ii 9 .. . employee must be presented with disciplinary charges and be heard before he is punishedo In that circumstance, the plaintiff was entitled to his salary and all the allowances he received along_ side his salary when he was allegedly sent on leave with effect from 1st September, 1997• According to the facts of this case the employer withdrew the allcwances when he claimed to have sent the plaintiff on leaveo The record of pr0eedings_ cearly shows that the plaintiff was never charged nor was he given'an opportunity of being heard on a disciplinary charge. Since once paid allowances constitute an implied term of the contract of employment, their unilateral withdrawal constitutes a breach of that contract. Upon the foregoing 00nsiderations I deterrnine'the first issue by holding, subject to proof that he was indeed on leave, that the plaintiff was partly on paid leave as relates to the basic salary whiob he received and partly on leave without pay as regards the allowances which the defendant denied him. The second' issue is closely related to the first issueo In.finding ' . . '\ a solution to it I must determine whether the plaintiff was truly on leave of any kind between 10th.September and.31st December, 1997~ In that ~ . behalf I have had occasion to point out earlier in this judBJllent that leave is the time agreed upon in a contract of employment which the employee takes off from his daily routine. It could. he a month, a week and so on. Under normal circumstances the leave must be sought by the employee and must be approved by the employer. Where an employee is forced by his employer to cease working for him, with or w~thout pay, ·the whole period he will be away cannot be referred to as leave in the usual sense. That is what is called layoff in industrial relations law and practice... And such action is taken when, almost invariably, redundancy is impendingo That situation does not relote to the facts of this case because Exh. P.9 by which the plaintiff wa.o sent off from his work place clearly states that:-

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• 10 - IIB . e,aring_l mind that you are scheduled to retire in January, 1998 the directors instructed that you should take time to rnake a close follow up on the Ulili debt and other big autstanding debts before you retiree In order to give you enough time, .the J?.:i,ct9!.:.s areed th:;1_t_Y.op scrnld be. --i ven J?.aid leave_with_effect from_lOth September, 1999 so j;hat zou hav:e 1?.!~:y of time to c9llec_t_ the debts (Underscoring provided by the author of the letter). In making such a decision the Dirtors were either ignorant of what rights the plaintiff has under the contract of employment or they did not act in good faith. For how could they send the plaintiff on leave and still order him to work for them'? After giving this letter a careful scrutiny what comes out of it vividly is that they were punishing the plaintiff under the guise of a forced leave, for he could not be expected to be on leave and at the same time.be required to follow up on debts which ought to be done by an officer who is on active duty. In these circums- tances I hold that for all practi~al purposes and intents the plaintiff was on duty from 10th September to 31st December, 1997 before he retired on 1st January 7

1998. In onseqence thereof he was entitled to his fringe benefits in the form of the several allowances he received alongside his monthly salary. Evidence upon which there is further proof that the plaintiff was practically on duty is the letter the General Manager wrote to the plaintiff dated 30th December 1997. It reads in part thus:- 11 ••• As mentioned in para 3 of my letter No. TTC/HQ/PF.14/8/IGPN of 1st August, 1997 payment of your terminal benefits will depend a lot on how much of the outstanding debt, especially Ulili debt, you have managed to collect. I would therefore like to have a comprehen- sive report on how much money you have collec- ted and how much is still outstanding. This report should reach me before 15th January, 1998 •• .,/11

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• 11 - for presenttion to the Board of Directors v1hose meeting is scheduled for 22nd January, 1998." I would, accordingly, determine the second issue.in the affirmative. Accordingly, I hereby allow the claim under paragraph 7 (a) of the plaint. The third issue relates to Exho Pe5, specially the eeoond pe..ragraph which reads thus:- arn your letter you have pointed out that although there were no sales in 1996 there was a very good stock of timber. It is true (that) there is a huge pile of timber, but remember that about 4<Y/o is reject (as per Internal Auditor's audit report and also as witnessed by mys.elf) and considering the huge royalty bill, it is as if we have no timber stock of our ownl 11 The plaintiff has taken great exception to this letter. He, there- ; fore, claims a sum of Shs.10,000,000.00 as damages for being falsely accused of having received reject timbero He claimed it defamed him in the eyes of junior staff he was leading and customers in town. He had to go to Dar-es-Salaam to explain away the matter bafore the Bo!lrd of Directors. Now, according to Ms. Chamungwana ·(DW.2) it is not unusual to find rejects in a pile of good quality timber. She states in her evidence that timber can be rendered reje'ct if pieces bend after exposure to heat; or that that condition may be due to breakage; or by damage caused by overhead weight. The defence evidence concedes, however, that the plaintiff was not informed of the existence of reject timber on the day he handed the.office and compnny property to Mr Kitururu (DW.l). Instead it is contended by DW.l and the author of Exhibit P.5 that the rejects were discovered many days after the plaintiff had handed over the office to DW.1. According to Mr. Kitururu the rejects were discovered after a month's sales while he was in office. IoG.Po Ndanshau, the author of Exhibit P.5, claims that he saw the rejects when he visited the site on which fhe disputed ·timber was stacked. And, further, that auditors had also found O o o/12

... 12 - the existence of reject timbero Exhibit P.5 shows that 40% of the timber handed over was reject. It is this part of the letter upon which the sum of Shs.10,000,000.00 as dam~ 5 es for defamation is based. So the issue is whether Exhibit P.,5 contdns any statements that are defamotory of the plaintiff. In order for a statement to be defamatory the plaintiff has to prove that it c8ntains false material that desparages him in the eyes of right thinking men, that it was published and that it was made with malice. In his regard the plaintiff has sworn that the contents of the letter were published to junior members of staff he was leading before he retired and customers of the defendant. None of the junior staff nor any of the company's customers swore that they held the plaintiff in contempt and with odium because he sold reject timber. Even if the other elements of defaation were proved, the plaintiff cannot succeed without proving publication as well. Indeed, the plaintiff· must also show that the stat61l!ilent wa~ false. Now according to DW .. l, he and the plaintiff did not count the timber piece ·by piece. And as the handing over notes (Exhibit Po4Y show DW.l's account is borne out as to its correctness ... That part of Exhi:tit P.4 has the following sub-heading:- VITIMBER POSITION AS AT 27/8/1997 (AS PER RECORD) 11 It follows, then, that the different sizes of timber aI1d their cubic volumes recorded in the handing over nqte were as per record. That being the case the plaintiff's onus of proving that there were no rejects becomes quite unenviable. In my judgment he has failed to discharge the onus of proof which is required to show that indeed there were no rejects in the lower parts of the piles of lumber when he handed them over to DW.l. May be it may as well be an exageration that rejects were 4CY'/4 of the timber the plaintiff handed over, but I can see no proof of malice in such ••• /13

• 13 - a statement., I would, in that regard, determine the third issue in the negative, and dismiss the clai:n of Shs.,10,000,000.,00. The fourth issue is, as shcvm earlier, whether the defendant's letter dated 1st August, _1997 (Exhibit P.,9) was defamatory of the plaintiff. He claims that the letter is defamatory of himself because the issue it raised was taken to the Board of Directors who, as a result, decided that he be sent on leave. In order to get the gist of Exhibit P.9 its contents are reproduced herein below, namely:- aTANSCAN TIMBER Cor-'iPANY LTD., Ref., TTC/HQ/PF.14/8/IGPN 1st August, 1997 Mr. A,. F. Kibona, Mbeya Branch Manager, Tan.scan Timber Co., Ltd.,, PoOo Box·'i394;· MBEJA,,· Dear Mr., Kibona 1 Re: PREPARATIONS FOR YOUR SMOOTH RETIREMENT •• On the 11th June, 1997 we hart a meeting with T;mscan Local Board of Directors in Dar es Salaam. Among the issues which were discussed at length was the debt of T.,Shs.10,364,147.85 owed to TANSCAN by Ulili Enterprises (principal amount shs.3,602,762.95). Bearing in mind that you :rre seheduled to retire in January, ; ,. 1998 the directors instructed that you should take time to make a close follow up on the Ulili debt and other big outstanding debts before you retireo 1n order to give you egh tim) the Directors _a_g_reed that __ you should be Given _£ai_c'LhE:.'Y..e with effect from 10th S:etember, 1997 so that :z:ou have Elenty of time t2 collect the debts. Because the Ulili debt had no prior approval of the General Manager, the Directors instructed that all follow up ·' expenses will be borne by you, and that should you fail to recover the debt then the amount might be recovered ••• /14

... 14 - from your retirement benefits. Following the above resolutions by the local Board of . Directors, you will be required to ha..>1d over the branch to Mr. Kitururu who will replace you as Branch Manager. Mr., Kitururu will report at Mbeya around 25th August, 1997 to t,qke over from you, and you will also tetke time to show him around and to introduce him to important customers, peers and other people of interest to our business. I want to assure you that this move has been taken in good faith in order to give:you enough time to recover the debts so that neither you nor the company becomes the loser at the . end of the day. It is our ntention and_ wic::t you f should. retire honourably after all .these .1ears of har.d.X<?rk wi•h Tanscano Yours faithfully, T.Ai.1\TSCAN TI1'1BER COMPANY LIMITED Sgd: IoG.,P. NDANSHAU GENERAL MANAGER 11 The plaintiff has not pointed out which part of that letter defames him. All it contains areinocU:ous· instructions of his employer to him to do as directed thereino This claim, therefore, is a very hopeless one. As a result I determine the fourth issue in the negative. The clai~ is dismissed as a consequence. The fourth issue rui.d paragraph 9 of the plaint are but the same ~ . matters. In th~t circumstanoe the' part of the fifth issue that relates to the Ulili debt is likewise determined in the negative. The claim thereunder would be dismissed. This now brings us to. the fifth issue in which we have remained only with paragraph 10 of the plainto According to his pleading and evidence, the plaintiff claims a liquidated sum of shs.5,000,000oOO as damages for alleged defamation. He has testified th.At he was labelled a thief by the defendant regarding money he had taken to cover his allowances which he was 'to spend on an official trip in Sumbawanga.. He states that he was ••• /15 1

, .. .. accused of spending the money but did not travel to Sumbawnngae .It is in his evidence that he accounted for that money. As in other claims for defamation he testified that Branch employees and headquarters staff got wind of it. None of them testified to prove publication. On their part, par"tticularly Christina Chamungwana (DW.2) categori- cally denied that libellous aspersions were cast on the plaintiffa She testified that no claim for the Shs.50,000.00 he was issued as safari imprest has ever been raised, implying that the plaintiff retured the· imprest. Contrary to the plintiff 1 s claim that that sum of money was ' recovered from his retirement benefits, DW.2 swore that she recovered a completely different sum of Shs.31 1 00000 which related to some other outsianding impret. I am satisfied, upon the totality of the evidence on this issue that the plaintiff has- failed to produce preponderant evidence in proof of the fifth issueo Accordingly, I would determine it in.the negative, and dismiss the claim thereunder. The sixth issue, as framed, is whether the defendant is entitled to the sum of Shs.16,313,276.55 as claimed in the counter claim. The claim under the counter claim falls under thre heads. In terms of paragraph i3 (c) it is averred that without any colour ·of right and without any authority abuse of employer ( i) ' (ii) of his employer and i gross violation of Company Rules, .. trust, the plaintiff misappropriated the properties of his as follows:- Shs.9 7 241,830000 under cover of purchase of goods and services tho.t were actually not rendered to the defendant; Shs.5,571,446055 under cover of timb'er sold on credit to various people without authority or approval of the General Manager of the l defendant .company as ?er Company Regulations; and and in

(iii) that the plaintiff pid to himself as house rent without approval from the defendant, payments which exceed fixed rates in that behalf,_ hence a claim of Shs.1,500, 000000" Let me state at th.is juncture that I have bee11 ill at ease with the drafting· of the counter clail7lo A counter claim is a case in its own ·right, completely different from the plaintiff's case., It will fall or succeed on its own r:ierits. In fact it is a form of cross suit in which the parties transpose roles, whereby the defendant becomes the plaintiff and the plaintif the defendant although they retain their titles as shown in the plaint. So a suit is instituted by a ~laint; since a counter claim is a suit distinct from the plaintiff's suit, it must be headed by the term COUNTER CLAIM in bold capital letters which implies that although it is contained in a written statement of defence it is also a suit to which a written statement of defence is required. Even though the omission is not a •fatal irregularity, learned counsel should always adhere to standard practice obtaining in drafting pleadings. . .. Coming back to the counter claim, two witnesses, DW.l and DW.2 testified in rcl.ahon to the prosecution of the claimo They have said much in· common with each other. They swear, under the first head of their claim, that the spare parts the plaintiff claimed to have bought from money he retained from the Kawetere Forest Project did not reach their destination. Documents relating to these purchases were tendered as Exhibit D.l, D.2 and D.3. Under sub-head (ii) it is the defendant's case that credit sales were made without authority and that anyone who authorises credit sales does so at one's o,m risk. The list of debtors was tendered as Exhibit D.4 and the statements of ac·count with them as Ex.11ibit D.5. in AlthoughLthe_ counter claim the sum of Shs.1,500,000eOO is raised as the sum o_f money the defendant paid himself in excess of authorised • housing rent, DW.l and Dv(.2 swore that the amount claimed is only a sum ••• /17

17 of Shs200,ooo.oo. This sum is arrived at as follows .. Authorised rent was Shs.50,00000 but the plaintiff pai~ to himself a sum of Shs.60,00.00, some Shs. 10, 000., 90 in excess of authority per month •.. The plaintiff has denied liability •. He has sworn that he never bought anything that was not accounted for; that all items were bought from money retained from the Kawetere Forest Project@ Forest Department., According to him what happened was this: the defendant bought forests from the Forest Department upon which the latter would serve-the former with a statement of the quantity of lumber they had harve?ted. The • i" suppliers of wood would then under-invoice the plaintiff so that the latter would spend the difference between the _actual value of wood and the invoice to purchase services and goo'.is for the Forest Depiil'tment @ Kawetere Forest Project. He swears further that all payoents were made by payment vouchers which he sii;;ned and were countersigned by the Brruich Accountant (DW.2} •. He has, therefore, denied any wrong doi~g • .. DW.?. a:dmits that she indeed countersigned the documents, claimine; that she did so because the head of the office, the Drc.1nch.Manager, had already approved the payments. r·have carefully 3one over her testimony which is, at best, a lame duck excuse. She cannot expect the Court to believe that story, that she would counter sign the payment vouchers and she would draw and countersign cheques to give the way to the plaintiff to steal'company property! If that was to be believed then she is privy to the defakation and should, iike the plaintiff, be sued for recovery of the money under the first sub-head of the damages. In my judgment her credibility is, but suspect. I, therefore, hold thnt the transac- tions were procedurally correct ~d the _purchases were .made as intended. Of course there is the allegation that the goods and the services did not reach their destination. Only DW.l and DWa2 testified so; no one from that destination, the Forest Division or the Kawetere Forest Project testified thnt the whole tronsaction was a fraud. Accordingly, the 0 •• /18

.. first sub.:..head would fail, and it ik dismissed a 14.s regards sub-head (ii) DW.l and DWc2 swore that the plaintiff sold timber on credit in abuse of:Compnny Rzule.tions under which only the General Manager can authorise such sales. Not a single regulotion in that regard . was produced.:i;n evidence. That·being the case the court will be speculating if it was to accept the defend2...nt 1 s version of factse Like in the case of the first sub-head in the counter claim the defendant hns failed to prove his claim, it dismissed as wello I now come to the third sub-head. Evidence of.these allowances is· to be found in the testimony of DW.l and DW.2 as well as from the plaintiff himself. Acording to the original text'of Ex.~ibit·P.l housing.allowance .. is indicated to be Shs.50,000aOO. The plaintiff considered this sum inadequate for a plo.ce'like Mbeya and inserted in ordinary ink i160 1 000 1 MBY 11 • That, to say the least, is a forgery, for he preterred no evidence to justify the alterntiono I would hold,, therefore, thnt he paid to himself a sum of Shi:3.10,000.00 per month in excess of authority. I would find him liable under sub-head (iii) of the counter clairno I now come to tbe last issue. Under this issue· I will consider the plaintiff's claim under pn.ragraph ?(b), (c), (d),' Ce), (f), (g) and (h) of the plaint,, The" claim under paragraph 7 (b) relate's to · journ:i.es the plaintiff swears• he undertook between Mbeya Emd Dar-~es-Snlaam and Mang 1 ula Machine Tools (Workshop) on v.:1rious dates as indicated in the· pleadings,. The rate''per night out was a fixed sum of Shs .. 10, OQO&cio. No evidence was adduced in· proof of this claim. It follows, then, that it was not proved, it fails arid it•'is dismis(:led. Paragraph 7 (c) is a claim in connection with journeys he claimed to have made between Mbeya and Dar---es-Salaam during the period the defendant purported to have sent him on compulsory leave.· These are nights he spent in Dar-es-Salaam between 11th September cmd 21st • ,. ,/19

• 19 - September 1997 at the rate of 30,000 .. 00 per nght, which brings a total of Shs.300;000.00; he claims half per diem for 21st September, 1997, which he puts at_l0,000.00; and return ticket first class by TAZARA amounting to 64,000.00e This brings a sub-total of Shs.374,000.00o The secon;d trip was, according to the plendings undertaken between lOh Octber and 19th October, 1997., The sub-total claim for that journey comes to Shs,312 1 000.00. 'l'he total arnoun't is Shs .. 686, 000.00. ~ The figure he mentions in his evidence-is Shs.628,006.00, Upon my earlier observa- tions that the plaintiff was on duty when he was sent down to Dar-es-Salaam, I hold that he has proved his claim of Shs.686;000·.oo under this sub-head; ed I allow it. Under sub-paragraph (d) there is a claim of Shs.135,000 constituting leave entitlements he claims in lien of leave he could not take when he . . was called upon _to hand over his office. DW.l denies that he had any outstanding leave, and that he forfeited it when he failed to take it, On this kind of .evidence it is probable that the plaintiff could not take his leave due to the sudden change of circumstances. I am satisfied, therefore, that he has made out his claim on a bnlance of probabilities which is tipped in his favour,_and.I allow his claim, Acordipg to his plecding in sub-pcU'agraph (e) the plaintiff demands a sum of Shs.961,000.,00 being fare for his family, personal effects and ' I himself, The plaitiff reached this figure in terms of Exhibit P 0 2 as follows:- l •. hired transport Mbeya to his village: 2;; cost of packaging •••••••••••••••••• : . . '

3. handing tloading & unloading) charges, including carriage on foot for a stretch which is impassable by vehicular transport ••• :
4. Fare/fuel and lubric.;nts for his ... JJersonal car• .o-.c ~ 0 .-o ~ C1 C C o • 0 Ct O .o. o O • o· .. t, : TOTAL: shs.580,000000; II 186,000.00; 11 120,000.,00 11 75,000.00 Shs 961, 000,.00 o o o/20

20 DW.l and DW.,2 have sworn thc,t the compan;y- was ready _to hire transport for the plaintiff but the latter did not co-operate because he has a residence in town. In the alternative they offerred him cash in the sum of Shs.60,000.bo which he' also declinec;l to accept .. DW .. l stated in ,.. cross-examination thot the nmount the plaintiff was offerred was the to the amount approved by the company regulations, which was equal to the sum he was being .paid while travelling on leave •. On her psrt DW.2 testified that the sum of Shso60,000oOO was adequate, but she does not go further to show if thtit sum could have cover.ed the cost of travel and personal effects~ And the cheque the plaintiff declined to accept was drawn in June, 1998. Now the obligation to repatriate an employee whose contract of employment has come to nn end for whatever reason is squarely on the employer. He must show how he took action to discharge that obligation. In the particular facts of this case no one would have been expected to move his family at the cost equal to allowances he was paid as leave allowances. For even if the entire family travelled during the plaintiff's I! working life, his final depoTtre as a retiree involved even the cost I of transporting his pesonal effects. Obviously this means greater expence than the cost for travelling on leave., Of course there is evidence th2,t the employer provide~ transport to the plaintiff, which was refused. No evidence was offerred, however, regt,rrding how that .offer was communicated to him. I would hold, therefore, th~t the sum of Shs.60 1 000.00 which was offerred to the plaintiff.hen travelling on leave could not have been dequatet to c::over the cost ,of transporting his r;ersonal .effects as well.· At the sam tme the plaintiff has come up with the sum of Shs. · ~ . ~ : . . .. ~ . . ' 961,000.00 without proof of quotations for hire charges from transporters.-· .. He has offerred a blind figure incapable of proof. The claim therefore, fails. In its place I assess that the sum of Shs.480,000.00 would be ., •• /21

21 reasonable in the circumstances. Hence the claim succeeds to that extent only. .., There is a claim for retirement benefits in terms of a voluntary agreement between the employer and its .employee in respect of which the plaintiff claims a sum of Shs.325 1 000~00 under sub-paragraph (f),. According to DW.l a.d DW.2 what exists is just a draft agreement which is inoperative ,i ~ ''. because it has not been signed. The plaintiff could not produce a copy of an operative agreement in proof of :his claim. As a result this sub-had fails and it is be dismissed as a result. I will determine sub-pare.graph (h) 0head of sub-paragraph (g). Here the piaintiff claims a total of Shs.180,000.00 being the cost of mailing letters to his former employer while pursuing his claims., The defendant denies this claim. In my judgment, apart from making ·the claim and casually referring to it during his testimony, the plaintiff did not come up with probative evidence concerning vital matters such as the number of letters he wrote to justify that sum of money. Since he has made the allegation he must prove to I am sure has failed to do so. The ciaim would fail, and it is dismissed as result, Sub-paragraph (g) relates to statutory entitlements to which a person whose contract of employment has ceased to operate is entitled._ In this connection section 53 of the Employment Ordinance, Cap •. 366, provides thus:- 11 53,. - (1) Every em:;;loyee who is a party to a contract and who has been brought to the place of employment by the employer or by any person acting on behnlf of the employer shall have the right to be repntriated at the expense of the employer to his place of engagement in the following cases:- (a) on the e~~iry of the period of service stipulated in the contract; (b) on the termination of the contract by reason of the inability of the employer to fulfil the contract;

.- ·- r, 22 (c) on the termination.of the contract by reason of the inability of the employee to fulfil the contract owing to sickness or accident; (d) on the termination of the contract by agreement between the parties, unless the agreement otherwise proides; (e) on the termination of the contract by order of a court in pursuance of its powers under Part XI of this Ordinance on the application of either of the parties, unless the court otherwise decides. (2) Where the frunily of the employee has been brought to the place of employment by the employer or by any person acting on behalf of 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. (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 termination of the contract and the date of repatriation. (4) The employer shall not be liable for subsistence expenses or rations in respect of any period during which the repatriation of the employee.has been delayed - (a) by the employee's own choice; or .. ( b) for reasons of force maje_ure, unless the employer has been able during the said period to use the servics -~f the employee at the rate of wages stipulated in the contract. (5) If the employer fails to fulfil his obligations in respect of repatriation, the said obligation shall be discharged by or under the directions of the Labour Commissioner, and any sums so expended may be recovered f:i;-om ,the employer by ci vi1: suit. (6) Any employer who fails without reasom1ble excuse to comply with any of the provisions of this section relating to .... /23

,t

• 23 the repatriation or pn;yment of ex.9enses of repatriation of any employee or the family of any :employee shall commit an offence against this Ordinance .. " It is abundantly clear that the em;?-loyers cbligation under this head is statutory in terms of section 53 (3) (b) of the Employment Ordinancee Accordingly, and as the law provides, the plaintiff and his family are ideally entitled to subs~stnnce allowance between 1st January, 1998 to the date they will be repatriated to their home village in Ileje District. And sub-section (b) of section 53 mnkes it c?Jl offence for an . . employer who fails without reasonable execuse to comply wi t-h these provisions. For reasons I have endeavoured to give elsewhere in thi';s judgment,- the defendant does not seem to have acted reasonably towards discharging his statutory oblig8tions. However, even though the plaintiff is in law entitled to his allowances pending his repartriation caselaw (on dmnage) has made it clear that a litigant has a collateral duty to take steps to ameliorate the quantum of damages in a continuous breach of a tort or any other civil wrong. The plaintiff has not shown any steps he has taken in that directiono In thnt circumstance I o.llow his claim for subsistence allownnce for himself and his dependant members of his family from 1st J ::munry, 1998 to 31st December, 1999 onlyo I would also order thc-t the sum of Shs,.480,000.00 for his transportation and fare be made available to him within thirty days of the date of this judgment, failing which subsistance allowances will accrue all over again from the last day of this order and will continue to accrue until the plaintiff will have been repatriated. Upon the foregoing considerations I enter judgment for the plaintiff as herein stated. Save to the extent. of the overpayment of housing allownnce in the sum of Shso200,000.00, in respect of which I enter judgment for the defendant, the counter claim is otherwise dismissed. 00 ./24

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• 24 The plaintiff shall have his costs in both the suit and in the counter claim. Delivered. Mr. Mbise, Advocate. : For Defendant Certified true copy of the ori5inalo . I , -'/ ! /:r~ . ... . '} DIS-TRICT RB'ctr:sTRAR HIGH COURT OF TANZANIA MJEYA