in the high court of tanzania e labour division at … · pius sangali & others v. tanzania pot...
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e IN THE HIGH COURT OF TANZANIA
LABOUR DIVISION
AT MWANZA
LABOUR REVISION NO 85 OF 2019
(Originating From Execution No. 14 of 2018)
NMB BANK PLC APPLICANT
VERSUS
SARAH RICHARD HAMZA RESPONDENT
RULING
04 & 20/03/2020
RUMANYIKA, J.:
Supported by affidavit of Neema Kisha Biyengo, the application is for
revision cum reference with respect to decision of the Taxing/ Executing
officer (O.H. Kingwele, Deputy Registrar) of 21/8/2019. It is brought
under Rules 24 (1) (2) (a)- (e) and 55 (1) and (2) of the Labour court
Rules, GN. No. 106/2007.
Mr. Antipas S. learned counsel appeared for NMB PLC (the
applicants) Sarah Richard Hamza (the respondent) appeared in person.
Upon adopting contents of the supporting affidavit, Mr. Antipas
learned counsel had three (3) points and submitted; (a) that with
regard to the issues of 12 month salary compensation and other terminal
dues, very unfortunately the executing officer improperly interpreted
the court's decision and orders of 31/10/2018 inclusive of reinstatement, 1
twelve (12) month salary compensation, transport and housing
® allowances. That the Deputy Registrar for that purposes was not part of
the High Court. That only this court was vested with powers to interpreted
its decisions (Section 50 of the Labour disputes institutions Act No 7 of
2014 (Case of Serenity on the Lake Ltd V. Dorcus Martin Nyanda, Civil Revision No 1 of 2019 (CA) - Unreported. (2) that on the issue of
allowances, not only the Deputy registrar's orders were on the record
strange, but also now that the respondent was no longer in service the
latter wasn't entitled to the allowances which in the first place were not
statutory by nature but it was payable only to on duty employees (case of
Pius Sangali & others V. Tanzania Pot Land Cement Co. Limited, Civil Appeal No 100 of 2001 (CA) unreported. (3) that now that the
Deputy Registrar was not certain on the actual sum payable, he shouldn't
have relied on the respondent's computation. Instead, the Deputy
Registrar should have sent the record back to the CMA for actual
calculations (Case of Dr. Maimuna Mrisho V. Tanzania Ports Authority, Revision No 852 of 2018 High court, Dar es salaam
(unreported). Instead, the respondent was paid shs. 88,519,352/= being
severance, annual leave and end of the year's leave allowances, 12
month salary compensation and salary from the date of termination i.e
November, 2018. That yet again the respondent came up with another
unfounded claims of shs. 37,069,849.88 out of which the Deputy
Registrar awarded her shs. 32,998,454.31. That at no point in time this
court had stated the exact sum payable. That very unfortunately the
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Deputy Registrar awarded her allowance even for the period the
respondent had been terminated.
Mr. Antipas learned counsel further submitted that remedies under
Section 40 (1) (a) (c) were not awardable simultaneously. One could not
be reinstated, re- engaged and compensated or something at the same
time (Case of NMB V. VICTOR MODEST BANDA, Civil Appeal No. 29 of
2018 (CA) at Tanga (unreported). That
The respondent submitted that there was nothing to fault the Deputy
Registrar as the latter had a duty to and he only complied with decision
and orders of his court. That the deductions made by the applicants were
unjustified and uncalled for. That is all.
The issue is whether the Deputy Registrar's decision was improperly
made and therefore subject of revision. I entertain no doubts that with
respect to the court's powers to interpret its orders/decision with intents
and purposes the Deputy Registrar was no part of it (the case of Serenity on the Lake Limited (supra). With respect to the actual sum payable,
both the respondent and the Deputy Registrar may have been on cross
roads. Much as for some reasons having reversed the CMA's decision on
31/10/2018 this court did not state exact figure of the money payable;
" ... The applicants to pay the respondent as at the time it
stood, compensation of twelve (12) months salaries and
all the dues .... "
Just like the Arbitrator had held and ordered on
20/6/2016:-
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e ..... the respondent to reinstate the complainant back to
her .... Employment without loss of remuneration. In
alternative, if the respondent ( employer) do not wish to reinstate the applicant may invoke Section 40 (3) of the ELRA No. 6/2004 by paying compensation of twelve months wags in addition to wages due and other benefits ...
From its inception therefore, it was intended that end of the day the
CMA compute and establish the actual sum payable. It is very unfortunate
that with greatest respect on that one the Deputy Registrar and
respondent usurped duty and powers of the CMA. The respondent may
have been underpaid or even the applicant skipped some items yes! But for
the limited powers of the Deputy Registrar. As argued, correctly so by Mr
Antipas advocate to make it more worse, the Deputy Registrar awarded her
some extras!:-
.... The expression all dues is to my understanding that
the applicant was to be paid all entitlements as if she was still an employee. That means the leave
allowances transport and housing allowance ...
Not only the Deputy Registrar assumed powers of and he translated
the court's decision, but also very unfortunately on that one he "overruled"
the court.
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In the upshot, the purported decision and orders of the Deputy
Registrar are hereby quashed and set aside respectively. The records are,
with immediate dispatch remitted to the CMA ( only with reference to the
court's order of 31/10/2018).With a view to the CMA computing and
establishing the exact sum payable. For avoidance of doubts should it
happen that the respondent was underpaid or, as the case may be
overpaid, she shall be entitled to immediately get it or payback the
difference. The application is granted in its entirety. It is ordered
accordingly.
Right of revision explained.
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Delivered under my hand and seal of the court in chambers. This
20/3/2020 in the presence of Mr. Mshongi learned counsel for Paschal
Kamala Advocate.
F. H. MAHIMBALI ALa», 'DEPUTY REGISTRAR
20/03/2020
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