Regional Labour Officer on behalf of Athanas Kaana vs Country Representative AMREF (T) (DC Civil Appeal No. 1 of 1998) [1999] TZHC 368 (12 November 1999)

MOSHI, J. IN THE HIGH COURI' OF TANZANIA AT MBEYA DC CIVIL APPEAL NO. 1 OF 1998 (From Sumbawanga District Court Civil Case No. 2 of 1997 Before: T.A.R. Nassary :.:- ·Resident Magistrate) THE REGIONAL LABOUR OFFICER) (ON BEHALF OF ATHANA,S KAANA)) VERSUS .• O O ••. APPELLANT THE'COUNTRY REPRESATIVE AMREF (T) - RE3PONDENT JUDGMENT This appeal arose from the decision of the district court of ,,Sumbaga in a cl.aim for repatriation expenses. Mr. Boniface,· ).earned state at'torney, represented the .appellant, The Regional .Labour Offfor on behalf.of Athanas Ka whilst Mr. . t:wwC .. . *teru, l.earned aav-oca.te, represented the respondent, -The Country Representative AMREF (T). These material facts were established in evidence. The ·respondent~~ the appellant, Athanas Kaana (Pl'111), at Dar-es-Salaam~ .a driv.er on 2~~11.8·8 •. On • !. 6.8.89 tho appellcm.t wae, transferred to Sumbawanga in Rukwa: Region. On 21 .3,9§_ the project in which the appellant was engaged came to an end· and closet,i.: down_. . . . . In consequence, the employment of the appellant and other workers in te project was terminated that same day (31.3.96). Usual terminal benefits-were paid. A meeting was held in which the issue of transport of staff back home and .te:i,r -: .. . __ . - ~ families and personal belongings was discussed. · The worl<ers were asked to give vital data regarding such mafrers as the size 'Of their families, places of domicile, distances and so forth. They were also asked to -suggest- amounts which would suffite. Amoun:ts payable to every staff.were the agreed upon and·a11 staff-signed on a form (Ext D2) for the amounts and were paid that same day (31.3.96). The appellant signed for,· and was paid,. shs.270,000/=. ,The form (EJct D2) was headed: SUGGESTED AND ACCEPTED TRAVELLING BACK HOME COSTS AFI'ER THE PIDJEOI' END ON 31ST MARCH 19'~• .•••••• /2

····.' . • i A 2 C, The appellant, who hailed from Karagwe in K:i.gerci negion, was entitled to be repatriated to the place of his engagement·, that is· DcJ.,-,es-Salaam, in terms of Section 53( 1) o_f the Empoyment Ordinance, Cap: 366 .. What transpired .thereafter was in disputeo; The appelant claimed that he then realized that .he was underpi...d and travelled to the head office of his former employer (respondent) "in Dar•es-~~aam on unknown date qere he saw the Director who referred him to.the.Finance and Administrative Officer. The Respondent's claim, however, which was upheld by _the trial court was 'that the appellant had kept to himself, did nothing and wen. nowhere, until six months later when he raised for the first time the question of the alleged underpayment with the head Office of the respondent at Dar-es .. Salaam in a letter he wrote on -7•. ; _ I would· age witl<l the trial court that the appellant .raised the claim cif underpayment for the first time on 17.9,,960 This was about six ,1nonths after he ' ,. . ~ .,,__,.,,"-""""_..........,. ... was paid. His claim that. he travelled to respondent I s head office was wholly- : ., . .. .. . ' -unsubstantiated. He even failed to mention when he made the trip. No tickets . or other supporting documents were produced. No person testified that he saw . hiii.1· m_ake · the trip. 'l'he trip was denied by the respondent (DW1) o The claim, . . . ... heefore, was ._and remained a _bare allegation~ . . . . The respondent replied (t D3) to the appellant's letter of 17.9.96 on I r •" • 21.1196 informing the appellant that the amount of shs.270,000/= paid to, and received by, the appellant to facilitate his transport back home and that of his family and belongings had 1 ,,,,,,,~ c"""-~ ,.:i ITPP upon by the appell,wit himself ·as sufficient and that had it beeri insufficient he should have discussed the matter with his project leader hefore it was paid to him. It was then ,that the appellant sought the assistance of the Regional Labour Officer who instituted the suit on his behalf in February 1997. The suit was for~

1. Shs.238,707/ .. transpo:1'.'t charges for himse~f, his wife and five children from Sumbawanga to his birth pia.ce Karagwe via Mpanda; Mwanza, and Bukoba., '2. Shs.817,000/:= luggage (personal effects) transportation charges from- Sumbawanga to Karcvrwe aR ~ ··voiced (Ext. P1) by Rukwa RETCO. "ti •••••• /3 -·.:

• 3 ...

3. Shs. 7 ,670,250/= p_er diem allowance for 16 mont_hs ( 487 days). (from 1st April 1996 to July 1997) he and his f8:mily had remained in Sumbawanga ·waiting to be paid full transportation charges. f ' . ..,
4. Per diem allowance from August 1997 to payment of the amount 1 of the judgment.
5. Costs.of -the case. The trial cour.t disallowed the claim for per diem allowance from the date ·· of termination of employment to the date the judgment W8!3 satisfied on the ground -that his repatriation was delayed .by his own choice, an.d he was thus not entitled .,: ·: .. :to it in terms of Section 53(4)(a)of Cap. 366. On the question of repatriation c9sts the tril court found that the appellant was entitled to be repatri.3:te to Dar-es-Salaam which was his place of engagement and not to Karagwe in terms of ·secticm 53( 1) of Cap. 3660 .. The cour~ then held the respondent liable to pay the appellant and his family transportation expenses f:r:om Sumbawana o Dar-es-Salaam at the rate of March 1996 and not at the rate of the time of the judgment on 1;:;.12.97. The ·amount was unspecified and the court directed that the amount of shs.270,000/= already paidhouid be :ddu~ted from such an amount and that.ea.ch party should bear its own side ·of costs .of the suit • . I would, with respect, ag,::-ee with Mr. Materu that the question of under-- payment did not arise in t_he circumstances of this case. K, th claim for .. repatriation etxpnses were in respect o_f Sumbawanga to Karagwe. This was, of course, ~ misco,nception in law in view of section 53( 1) of Capo 3660 But that was the nature of the claim. cond, _the sbs.270,000/= paiq to the appellant was not forced on him. He was part of its making. He was consulted and contributed important informationo He played an important role in assisting the management arrive at that sum. There was no fraud. ·,• He had accepted_the money on his own ., free will as sufficient for the intended purpose. This would account for his signature on the payment form (Ex:t D2)• He had thus accepted the money in full settlement of his epatriation expenses from Sumbawanga to Karagwe. This would account for the· fact that he stayed for six months without rais_ing any cla ,of underpaymftnt. • I, In the circumstance-'. there was n?thing for which the resqndent ••••• /4

• 4 - could be. blamed for the failure of the appellant to have left Sumbawanga for Karagwe immediately after he was paid the money on 31.3096. The appellant, therefore, had remained at Sumbawanga on his own ?hoice ·as rightly held by the trial court. He could not be heard claiming that he was waiting for any further payment due to him from the respondento The subsequent claims of und.erpaym•nt were clrly an aterthoughto Thl!.:!,. perhaps the question of underpayment would have become relev-ant_ ~:,e · repatriation to Dar-es-Salaam in issue., But it was not in this case.. The trial court, however, seems to have dealt with the situation in its judgment; This would. account for the fact that.after finding that the repatriation ought to have been .to Da!'-es-Salaam, the court made the provision for deducting the money paia from what would have been t:he expenses in the event they were in excess; I would . ' ... add-that the reverse should also apply. Mr. Boniface submitted that the trial court erred in inaking the rates of March 1996 applicable. With respect, I disagree. The question of repatriation arose in March 1996, and the rates applicable, therefore, must, and have to, be those prevailing at that time. It is provided under section 53(3((b) of Cap. 366 that repatriation expenses . subsistance . shall include , · , · or rations during the period, if any, between the date of tenninat-ion of the contract of employment and the date of repatriation.' Th:il3 right, however, is denied under sub-section (4)(a) of the same section in respect of any period during which the repatriation of the employee has been delayed by the employee's own choice. In the circumstances of this case, therefore, I am satisfied that the . per diem allowances were rightly disallowed by the trial. The order for each party to bear its side of costs was also a subject of complaint by Mr .. Bonifaceo But , · I find that complaint without substance in· that, as rightly submitted by Mro Materu, .. the trial court had partly al],owed the claim. In the final analysis, therefore, ·r find this appeal devoid of merit, and it stands dismis.sed in its entirety. I make no order as to the costs of this appeal. · Mr. Nangela, S .A. B.P. MOSHI JUDGE. -=---··--