MAPUNDA V. THE MANAGER, EAST AFRICA
AIRWAYS(1970)H.C.D. n.24.
FACTS
The
appellant in this
case was employed
by East African
Airways as a
security clerk. On the
9th February, 1967,
the Personnel Officer
of the company
sent a letter to
him informing him
that his services
had been terminated
by one month’s notice effective
from the date
of the letter.
He informed the
appellant that he would
in fact be
given one month’s
salary instead of
notice and that
he would also be
paid whatever other
emoluments to which
he would be
entitled. Two reasons were
stated in the
letter for the
termination of his
services. It was
alleged that he had
come to work
late on one
occasion. He had
reported at 8.00
a.m. instead of at
5.30 a.m. In
addition, he had
altered the time-sheet
to read a.m.
instead of 8.00
a.m. it was
also alleged that
he had disobeyed
an order to remain
on board a
certain plane until
he had been
relieved. It is
quite clear that both
these matters would
be offences under
the Disciplinary Code
set out in the
Security of Employment
Ordinance which, if
established, would justify
the summary dismissal of the appellant.
The company, however,
did not choose to dismiss
him summarily, but
chose instead to
terminate his services.
The appellant took the
letter to N.U.T.A.,
his trade union;
a consultation took
plans between N.U.T.A and
the Personnel Department
of the respondent
company. As a result
of these consultations, it
seemed to have
been established that
the appellant had in
fact reported late
for work and
has in fact
altered the time-sheet. It does
not appear to
have been established
that he had
failed to stay
on the ‘plans until
his relief had
arrived. On the
advice of the
N.U.T.A. steward, he
wrote a letter to
the company asking
forgiveness for having
arrived late and
having altered the time-sheet.
The appellant stated
that he was
compelled to write
this letter by his
N.UT.A. Adviser. He
denied that he
was late or
that he altered
the time-book. He asked
that the altered
time-book be produced
in Court. This
was not done in
the court below.
The trial magistrate
was satisfied that
he appellant had committed
the offence. The
appellant did not
state in the
court below that
he had been compelled
to write the
letter.
HELD
(1)
The trial magistrate
was justified in
finding that the
appellant had committed the
offence.
(2)
“Even if, however
the offence had
not been established against
the appellant, I
am satisfied that
he could not
succeed in his claim.
This was an
oral contract of
service. Section 32
of the Employment Ordinance, Cap.
366, as amended
by the Employment
ordinance (Amendment) Act, No. 82 of
1962, specifically provides
that an oral
contract of service
may be terminated by
payment to the
other party of
appropriate entitlements under
the contract. This right
does not seem
to have been
abrogated by the
Security of employment Act,
Cap. 574. The
Security of Employment
Act deals entirely with summary
dismissal, not with
termination of contract
of employment. Before
me, the appellant based
his claim largely
on the Security
of Employment Act.
He argued that he
should have been
taken before the
Words Committee and
that his offence should
have been established
before them. He
states that since
that had not been
done, the termination
of his services
had been improper.
All that he says
would be quite
true if he
had been summarily
dismissed, but in
fact he has not
been summarily dismissed.”
(3)
“It is also
worth pointing out
that the jurisdiction of the courts
has been entirely
ousted under the
Security of Employment Ordinance.
If the appellant’s
claim, therefore, was
under this Ordinance, he
would have had
no right of
audience, except, of
course, by way of
certiorari or mandamus,
in order to
challenge the correctness
of the procedure followed.”
(4)
Appeal dismissed.
BAKARI BASEGESE MRUNDI V. MOWLEM CONSTRUCTION CO.(1969)H.C.D.82
FACTS
The plaintiff’s employment with the
defendants was terminated without 1
month’s notice. His suit for payment in
lieu of notice, and for 7 days’ work a
expenses of repatriation from Zanzibar
to Pemba, was dismissed by the Resident Magistrate. The employment agreement
had been oral, and the plaintiff had made admissions before the Labour
Inspector which cast
doubt on his version of its
provisions.
HELD
This contract was “one that was
required to be in writing, and in terms of sub-section 3 of section 4 of the
Labour Decree the defect ought to have been corrected within a month to make
it enforceable.” This, along with the
flaws in the plaintiff’s case as he
had presented it in the earlier
proceedings, sustains the Resident Magistrate’s decision. The Court stated, obiter: “The whole of section 4 is not, I would venture to say,
so happily worded and appears to limit the rights of employees seriously. “
MAMBO SHOOR BAR V. R(1971)H.C.D.230
FACTS
The
appellant, Mambo Shoor
Bar, was convicted
of: (i) failing
to prepare maintain and
issue a copy
of an oral
contract of service
c/s 35 of the
Employment Ordinance Cap.
366 and (ii)
failing to comply e decision of a duly
constituted Conciliation Board
c/s 50(1) of
the Security of Employment
Act Cap. 574. with The facts were
that the appellant dismissed a
bar maid who
referred the matter to NUTA
which in turn
referred it to the
Labour Office. The
Senior Labour Officer
convened the Reconciliation Board dar es
salaam which decided
that the dismissal
was not justified and
that it should
be treated as
a termination of
employment under s. 24(1)
(b) of the
Security of Employment
Act. It did
not quantify the
amount due to the
complainant which had
to be worked
out under s.
24(2) (a) and s.
25(1) (b) of
the Act. The
appellant did not
comply with the decision the Board of and
the matter was
referred to the
District Court where
the magistrate fined the
appellant Shs. 300/170/and
ordered him to
pay Shs. being salary
in lieu of
notice; Shs. 67/50
being in lieu
of leave; Shs. 170/being salary
for March 1970;
and Shs. 1,530 /being underpaid for
a period of
October 1968 to
February 1970.
HELD
Amount (1) “It
is not very
clear from the
record or the
proceedings how the matter
was brought before
the District Court.
There are various ways
by which a complaint
by an employee
in regard to
the employer‟s breach of
a contract of
service can be
brought before the
Court. Where a Reconciliation Board
has determined the
matter under s.
23 of the Security
of Employment Act
and has given
a decision thereon
th e decision can be
enforced in a
Court of competent
jurisdiction as if
it were decree under
s. 27(1) (c)
of the said
Act. The employer
can be prosecuted
for refusal or neglect
to comply with
the decision of
the Board under
s. 50(1) of the
Act. If however
th e matter was
not referred to
the Board the employee
can refer it
to a Labour
Office under s.
130 of the
Employment Ordinance and the
Labour Office can
refer the matter
to the Police
under s. 131 of
the Employment Act,
if he thinks
an offence has
been committed by an
employer or alternatively
submit a written
report to a
magistrate setting out the
facts of the
case under s.
132 of the
Employment Ordinance. On receipt
of such report
the magistrate shall
where the facts appear
to him to
be such as
may found a civil
suit proceed to
try the issues disclosed
in the report
as if the
proceedings were a
civil suit (s. 134)”
(2)
“Even if the
matter were brought
before the Court
as a Criminal case
the magistrate has
power under s.
134A of the Employment
Ordinance to convert
the criminal case
to civil suit
and do substantial justice to
the parties without
regard to technicalities.”
(3)
“In this case
he charge was for
offences under s.
35 of the
Employment Ordinance and under
s. 50 of
the Security of
employment Act respectively.
The magistrate convicted and
sentenced the appellant
and then proceeded
to enforce the decree
of the Board. I
doubt , without deciding
the issue as it is
not necessary in
this case so
to decide, whether
the magistrate can
concurrently exercise his
civil and criminal
jurisdiction in one
and the same proceedings as he
did in this case.”
(4)
On Count 1
of the charge
there appears to be
a case of
duplicity. “3 separate
offences were lumped together in
one count. Failure
to prepare or
maintain or issue
a copy of an
oral contract is
each a separate
offence. The charge
as it stood
must have gravely embarrassed
the appellant. Furthermore
there was not
sufficient evidence to support
the charge.”
(5)
“As to count
2 it appears
from the proceedings
that what the
complainant was seeking
was an enforcement of the
decision of the
Board. I think
the interests of
justice can best
be served by treating
this case as
civil proceedings for
the implementation of the
Board‟s decision under
s. 27(1) (c) of
the Act. This
will require evidence to
be led of
the complainant‟s
entitlements under s.
24(2) (a) and s.
25 (1) (b)
of the Security
and Employment Act
as the decision
of the Board did
not quantify the
amount due to
the complainant.”
(6)
Appeal allowed on both
counts and the
conviction and sentence
are hereby set aside.
The case is
to be treated
as a civil
case for the
implementation of the decision
of the Reconciliation Board
in Exhibit H.
Evidence is to
be led to determine
the complainant‟s
entitlement under s.
24 (2) (a)
and s. 25 (1)
(b) of
the Security of
Employment Act Cap.
574.
KONIG
V. KANJEE NARANJEE PROPERTIES LTD [1968]
1 EA 233
FACTS
The
appellant was employed by the respondent as an engineer and manager of
a sisal fibre spinning factory by a
written contract for
three years from March, 1965, at a monthly salary
of Shs. 5,000/payable on the last day
of each month. He was entitled
under the contract to certain local leave to “be taken at
such time or times as may be
convenient to” the respondent. On June 28, 1966, as a result of an incident the
previous day, there was a stormy interview between the appellant and the
managing director of the respondent during which the managing director invited
the appellant to resign and, when
the appellant refused, lost his temper and abused the
appellant. The appellant then wrote to the respondent, pointing
out that his local leave was overdue and statin g that
he would take it from June 29 and would
resume work on July 13. On July
4, the respondent replied saying that it was not convenient to it for
the appellant to take his local leave
at that time and ordering him to return to work forthwith. There then followed correspondence between advocates for
the parties and on July 20 the respondent’s advocates wrote saying that
the appellant’s contract was
“hereby terminated summarily”. The
respondent did not pay the
appellant his salary for June. The appellant sued for damages for
wrongful dismissal. The respondent
alleged that he had been summarily
dismissed on July 20 for
disobedience to orders.
The High Court
dismissed the claim, holding that the appellant was in breach of
his contract as from June 28. On
appeal the appellant argued that the dismissal was wrongful and that in
any event he was entitled to his salary up to the date of dismissal. The respondent
cross-appealed on certain set-offs claimed by
it but disallowed below.
HELD
(i)a
master is entitled
to dismiss his servant summarily
for wilful disobedience of his master’s lawful and reasonable
orders, which it is his duty to obey;
(ii)the order to return to work of
July 4 was clearly a lawful and reasonable order;
(iii)therefore the dismissal was
rightful;
(iv)although a
servant is entitled
to arrears of salary on dismissal
this entitlement only applies to
completed periods of service – in this case a month;
(v)the appellant
was in any
case entitled to his June salary
because the misconduct relied on did not occur until July 4;
(vi) (per Duffus and Spry, JJ.A.) the
appellant was not justified in demanding
his June salary before returning to
work.
Appeal
allowed in part. Judgment for the
appellant (after taking into account a set-off) for Shs. 3,425/- with costs
thereon below and half the costs of appeal. Cross appeal allowed in part with
half costs.
NITIN COFFEE ESTATES V. NARAN MISTRY(1968)H.C.D.117
FACTS
Plaintiff was
employed by defendant
from month to
month at a
salary of Shs. 1,000/-
per month under
an oral contract.
There was no
provision made in the
contract for leave
or pay in
lieu of leave,
or as to
how the contract
might be terminated.
Plaintiff left the
employ of defendant
after one year,
without giving any notice
that he was
quitting.
HELD
(1)
It is an
implied term in
this sort of
contract that a
“reasonable period of
leave” be granted
annually. Such period
was set at
18 days, and
plaintiff was allowed Shs.
600/- in lieu
thereof.
(2)
Reasonable notice of
termination of the employment
relation was also
an implied term
of the contract.
(3)
As defendant failed
to adduce any
evidence of specific
damages occasioned by
plaintiff’s quitting without giving
notice, general damages
of shs. 40/-
were awarded.
LALJI NARAN V. UNITED CONSTRUCTION CO(1968)H.C.D.403
FACTS
Appellant (original
plaintiff) sued his
former employer for;
(1) Shs. 2,560/-
for work done on
Sundays and public
holidays, and Shs.
936/- for overtime
work; (2) Shs. 1,200/-
salary for one
month in which
appellant had been
in the Hospital;
(3) return of Shs.
1,000/- deposit made
by appellant to
respondent for a
security bond from
Immigration office during the term of
employment; and (4)
Shs. 750/- in lieu
of local leave.
District Court ruled
for the respondent
on all issues
holding; (1) the employment
contract made no
reference to additional
services, and the
Employment Ordinance was
inapplicable because appellant’s
salary was too
high; (2) the employment
contract was silent
on the issue
of payment during
illness not connected with
employment. No district
court holding on claims (3)
and (4) is
reported.
HELD
(1)
Although the Employment
Ordinance is inapplicable,
appellant is entitled to
remedies under the
general law of
contract, and Sec.
70 of the
Contract Ordinance (Cap.
433) clearly entitles
appellant to payment
for overtime if the
employment contract is
silent. However, appellant
has the burden of proof
that overtime work was
actually performed and
he failed to
sustain the burden.
(2) Where the
contract of employment
is silent on
payment during period
of illness not connected
with employment, the
common law provides
that the employee
is entitled to wages
during the period
of incapacity providing
that his employment contract has
not been terminated.
(3)
Respondent’s defence that
appellant had done nothing
to release respondent
from its bond
with Immigration office
is not supported by
facts, the evidence
indicating that respondent
had been released from
its bond. Appellant
therefore is entitled
to return of
deposit
(4)
Respondent’s defence was that
at one point
during the period
of employment he
had terminated appellant’s
employment and then
rehired him a week
later,
so that appellant
had never worked
for an entire
one year period
and therefore was
not entitled to
leave. Held that
by rehiring appellant
at an increase
in salary, respondent had waived
right to dismiss
appellant (which originally
existed), so that
the employment should
therefore be considered
continuous and appellant
is entitled to leave.
Appeal
allowed.
HASSANI ABDALLAH V. AFRICAN BAZAAR (1968) H.C.D n. 338
FACTS
Plaintiff claimed
for wage arrears.
When his claim
originally arose, plaintiff
complained to the
Branch Secretary of
NUTA, and after
a conference with
the employer, plaintiff
withdrew the complaint
upon receiving a
cash settlement and an
increase in wages.
Two years later,
plaintiff lodged a
complaint based on the
same facts with
the Ministry of
Labour. This complaint
was rejected, and
plaintiff thereupon filed this
action.
HELD
Plaintiff abandoned
his claim at
the time of
settlement; since consideration
for this was
paid by defendant
to plaintiff, there
was an accord
and satisfaction with
respect to the
claim.
PATEL V. INTERNATIONAL MOTOR MART
LTD(1968) H.C.D. n.443.
FACTS
Plaintiff hired
defendant on a
probationary basis for
a period of
6 months as an
accountant at a
salary of Shs.
1,500/- paid monthly.
The contract was
not subject to the
Employment Ordinance. Three
days after beginning
work, defendant terminated
his employment without
notice. As a
result, plaintiff was
unavoidably without the services
of an accountant
for the period
1.5 months. Plaintiff
sued for damages for
defendant’s breach and
the trial court
awarded plaintiff Shs.
1,500/-, the equivalent of 1 month’s
salary. Defendant appeals.
HELD
(1)
The trial court
rightly rejected the
defence that plaintiff
breached the contract first,
by requiring defendant
to perform the
duties of a
cashier and to handle
insurance matters. The
duties of an
accountant in a
small firm with
only one accountant are
necessarily flexible, and
defendant knew this
since he interviewed
for the job.
(2)
Even though the
employment was for
a probationary period,
in the absence
of a stipulation
to the contrary,
neither party had
a right to terminate
the contrary, neither
party had a
right to terminate
the contract neither party
had a right
to terminate the
contract without reasonable
notice, which in
this case was 1
month.
(3)
Although plaintiff was
unable to prove
any special loss
resulting from the
breach, plaintiff is
entitled to substantial
damages because of the
considerable inconvenience to
which he was
put by the
breach. In deciding whether to
award nominal or
substantial damages in
cases where no
specific loss can be
proved, each case
must be examined
on its own
merits. (Nitin Coffee Estates Ltd.
v. Noran Mistry,
Tanz. H. Court
Digest, Vol. 1,
Case No. 117,
distinguished on this
basis). In this
case, however, Shs.
1,500/- is too
much; damages will be
assessed at Shs.
750/-
Judgment modified
and appeal dismissed.
WAKIRO AND ANOTHER V.
COMMITTEE BUGISU COOPERATIVE UNION[1968]
1 EA 523
FACTS
The appellants were employed by the respondent Co-operative Union under written
service agreements which required the appellants to serve the respondent at such places in Uganda or
other part of the
world as the respondent might
from time to time require, and to
carry out the reasonable instructions
and regulations of the respondent. The agreements also contained a provision by which the employment of the appellants could
be terminated by three
months’ notice or pay in lieu.
The agreements were silent about the
actual duties to be
performed by the appellants; but in fact
they were appointed by the
respondent to specific offices, the first appellant to that designated
“secretary/manager” and the second
appellant to that designated “assistant secretary/manager ”. The respondent
decided to reorganise its administrative
arrangements, and notified the
appellants by letter dated March 29,
1966 that these offices had been abolished with effect from May 1,
1966. They were offered other posts by the respondent which wo uld not have affected their salaries or benefits.
The appellants by letter
of April 30, 1966, notified the
respondent that they regarded this an as
abolition of their posts which
could not be done without their consent and amounted to a breach of
their ser vice agreements; alternatively
they contended that they should
have been given three months’ notice. After further
correspondence during which the appellants refused to
accept the new posts offered to them by the respondent, the respondent gave the
appella nts three months’ pay in lieu of
notice to terminate their services. The appellants
referred the dispute to the Registrar of
Co-operative Societies, who sent it to arbitration. The arbitrator decided
that the appellants had been
properly dismissed. The app ellants appealed from
the arbitrator to the Registrar, who
upheld the arbitrator’s award. From
this decision of the Registrar the appellants brought this appeal
to the High Court on questions of law.
They conceded that they had been dismissed pursuant to t he terms of
their service agreements, but they
sought a declaratory judgment on
various points.
HELD
(i) the courts
will not make a
declaratory judgment unless it will serve
some effective purpose; and the same
should apply to an arbitrator;
(ii) although the reasons adduced
by the
arbitrator for ruling against the
appellants were in several instances wrong in law, he was correct in his final
conclusions and the appeal should be dismissed.
Observations obiter:
(i) as to the meaning of the words “disputes touching the business of
the society” in s. 68 of the
Co-operative Societies Act;
(iii) that the
services of the appellants were terminated and they ceased to be officers of the respondent
instantly they received the letter of dismissal and not
three months later.
Appeal dismissed with costs.
McGOVERN V. MAIZE MARKETING
BOARD[1966] 1 EA 40
FACTS
The
defendant agreed to employ
the plaintiff from March 1, 1965,
for a minimum period of three months,
and thereafter for a further period of up
to three months, the latter
subject to one month’s notice on either side. By a letter dated April 30, 1965, the defendant purported to terminate the plaintiff’s
employment on May 31, 1965, and the
plaintiff filed a suit alleging that
this constituted a breach of the
contract and claimed damages. No parole evidence was given at the
hearing and it was agreed that the sole
issue for the court to decide was whether
the defendant was entitled to
terminate the plaintiff’s employment as it purported to do. For the
plaintiff it was
contended that notice
to terminate could not have been given until the completion of the initial three months of employment at the end
of May, 1965.
HELD
The defendant was not empowered to
terminate the employment
on May 31,
and accordingly the notice of
termination of service was invalid.
Judgment for the plaintiff.
HAMAD WENDO V. MWANGOYE AND COMPANY LTD(1970) H.C.D. n. 128
FACTS
The
appellant who had
been employed by
the respondent company
was arrested on a
charge of stealing
the property of
the respondent worth
about Shs. 20,000/-. He
was subsequently acquitted
of theft. He
then demanded his
salary, severance allowance, leave
pay and payment
in lieu of
notice. The respondent
rejected the claim on
the ground that
appellant had not
been dismissed or
even suspended. The appellant
testified that he had approached
the respondent company
after his arrest and
demanded half pay
and this had
been refused. The
respondent company denied the
appellant ever visited
them at all
until after he
had been acquitted when
he came to
demand payment in
lieu of notice.
The issue before
the Senior Resident Magistrate
was one of
credibility who found
that on a
balance of probabilities the
case had not
been proved and
appellant’s claim was
dismissed.
HELD
(1)
“The issue was
purely one of
credibility. The learned
magistrate, who saw and
heard the parties
and the witness
of the appellant,
found that the evidence
for each side
was evenly balanced,
and as the
onus was on the
appellant to establish
his claim, which
he had failed
to do, he
dismissed it. It is
not without interest
to note that
learned magistrate directed
himself that the appellant
probably did not
go near the
offices at all
until his case
was finalized and he
was acquitted, because
he was then
facing a charge
of stealing the property
of his employers.”
(2)
“In arguing this
appeal, Mr. Ved,
who appeared for the
respondent, went even
further and submitted
that the learned
magistrate must have found
the appellant’s claim is frivolous or
vexatious. This submission
is not without substance
as, according to
the Employment Ordinance,
at Section 143, a
court is not
empowered to order
costs against an
employee who fails
in his claim against
his employer, unless
the court considers
the claim to be
frivolous or vexatious.”
(3)
“I would go
further and state
that the preponderance
of probabilities would appear
to be on
the respondent’s side
as if the appellant really believed
that he was
entitled to half
salary during the
period he was suspended
from duty, as
according to him
he was, it is inconceivable
that he would not
have complained to
the Labour Officer
at his employers’
refusal to make any
payment.”
(4)
Appeal dismissed.
MANKULEIYO V.
OTIS ELEVATOR COMPANY LTD[1969] 1
EA 568
FACTS
The
plaintiff’s contract of
employment with the defendants did not contain express terms relating to
the length of
the contract or to payment during
absence from work due to illness.
Shortly after starting work the
plaintiff suffered an injury which
kept him away
from work for about a month,
during which time he did not receive full pay.
Subsequently, whilst cleaning
the guide rails
of a lift,
the plaintiff suffered an injury to his knee which he alleged was caused
by the negligence of the
defendants. After nine months’
employment the defendants terminated
his contract by paying four
weeks’ salary in lieu of notice. The plaintiff brought this
action claiming: (i) damages for wrongful termination of employment; (ii) arrears of salary wrongfully
deducted during illness; and
(iii) damages for injury to his knee.
HELD
(i) On the facts of the case the contract of
employment was an indefinite hiring terminable by reasonable notice at any time;
(ii) whether a servant is entitled to
be paid during short periods of absence depends
entirely on the terms of the contract (
O’Grady v. M. Saper Ltd . (1) applied);
(iii) when it
is known that
in practice wages
during illness are not paid by the master to servants employed in
a capacity similar to the plaintiff, it is an implied term of the contract that wages are not payable
during the plaintiff’s illness
(iv) the defendants were entitled to
assume that the plaintiff,
whom they had employed for some months, was competent
to clean the guide rails of a lift without constant supervision.
Judgment for the defendants with
costs.
BILQUIS CINEMALIMITED V. MONTEIRO[1967] 1 EA 145
FACTS
The respondent was engaged by the appellant’s predecessor-in-title to
serve as a cinema operator in Aden. An agreement in writing was
executed in India on April 13, 1959, in terms of which inter alia
the respondent and his family were to be provided with free second-class
passages from Bombay to Aden; his monthly salary
was to be rupees 300 or 450/- plus a cost of living allowance; and he
was to be paid overtime, if called upon to
work more than eight hours per
day, at 1 1/2 times his salary
rate and at double rate on Sundays
and public holidays. The
respondent took up his duties and on January
17, 1960, he was appointed chief
operat or and his salary was increased to Shs. 1,000/per month. In
April, 1961, the respondent was appointed manager at the same salary, and,
after the termination of his
contract, he remained in
the appellant’s employ for a further year until his work permit was
withdrawn. He and his family returned
to India in August, 1962. The
dispute between the parties
arose over the
contention by the appellant that the enhanced salary of Shs. 1,000/- per month was to be inclusive
of overtime and work on Sundays and
public holidays, as against the
contention by the respondent that
the higher salary attached to his new status as chief operator and
later as manager and that his
contractual entitlement to overtime and
to double time on Sundays and public holidays was not affect ed. This
dispute was referred to an arbitrator in December, 1962, but the proceedings were
abortive and in May, 1963, the respondent filed suit. The court
awarded damages of Shs. 32,423/96 to the
respondent and it was (inter alia) against the award for overtime and the
‘oral’ renewal of the contract that this appeal was brought. An argument was
also raised on limitation. The appellant’s
witness in the lower court stated that
“the salary increase to Shs.
1,000/- was for working on Sundays and
holidays . . . the contract remained the same as it was except as to the rate of pay.”
HELD
(i) there was complete unanimity between the parties that the terms of the
service agreement continued to
apply to the new contract created
by the oral agreement on January 17, 1960, except as to the right to double
pay for working on Sundays and holidays :
(ii) there was no agreement on the
right to double pay for Sundays
and public holidays. The appeal therefore succeeded on that point and
the amount of Shs. 10,398/96
awarded in the
lower court was disallowed;
(iii) the new contract was subject to
the same terms and conditions as formerly
applied.
(iv) following the case of Firm
Behari Lal the period during which the
dispute was referred
to abortive arbitration proceedings would be taken into
account in calculating amounts falling outside the period prescribed
by the Limitation Ordinance (Cap.
86). s. 14 (1).
Appeal allowed in part.
KITUNDU SISAL ESTATE AND OTHERS V.
SHINGO MSHUTI AND OTHERS (1970) H.C.D.
n. 242
FACTS
The
respondent’s employees filed
a suit in
the district court
against the appellants’ employers
claiming damages for
alleged termination of service
without notice. Section 28
of the security
of Employment Act
1964 reads: “No suit or other
Civil proceedings …
shall be entertained
in any civil
court with regard
to the summary dismissal
…. Of an
employee ….” The
appellants urged that
by reason of s.
28 the court
had no jurisdiction
to entertain the
suit. The district
court gave a ruling
that s. 28
did not oust
court’s jurisdiction since,
it held, the
respondents were not summarily
dismissed. The appellants
applied to the
High Court for revision
of the order
of the district
court the High
Court held that
the ruling giving rise
to the order
did not constitute
a “case decided”
within the meaning
of s. 79 of
the Civil Procedure
Code, accordingly, it had no
jurisdiction to revise the
order, and dismissed the
application. The appellants
appealed to the
Court of Appeal.
HELD
(1)
“The termination of
services without notice
can only be
construed as summary dismissal
thus ousting jurisdiction
of the courts
under s/ 28 of
the Security of Employment
Act, 1964.”
(2)
“An objection to
jurisdictions, tried as a
preliminary issue separately
from the suit,
with the decision
made the subject
of an order, is
‘a case which
has been decided’
within the meaning
of s. 79
of the Civil Procedure
Code and is
subject to the
High Court’s revisionary
powers.”
(3) Appeal allowed.
WALTER JAGER V. CORDURA LTD T/A TANGANYIKA TOURIST HOTELS AND OYSTER BAY HOTEL(1972)
H.C.D. n.133.
FACTS
The plaintiff is an Austrian national
residing in Dar es Salaam. The defendant is a limited liability company
incorporated in Bermuda but registered
as a foreign company in Tanzania. I carries on business in Tanzania and runs a
hotel in Dar es Salaam in the name of Oyster Bay Hotel. The plaintiff was employed as a
Restaurant Manager of the Oyster Bay Hotel. He brings this action against the defendant claiming special and general damages for wrongful dismissal.
Mr. Jussa, Counsel for the defendant,
submitted that the defendant’s action was for summary dismissal, and section 28 of
the Security of Employment Act Cap. 574 oust the jurisdiction of this Court to
entertain the suit. The plaintiffs’ remedy, he submitted, was to refer the
matter to a conciliation board under section 23 of the Act. Mr. Versi,
Counsel for the plaintiff, in reply made two submissions, namely: (a) that
section 28 did not apply in as much as
the present claim was not based on summary dismissal but was based on the
wrongful termination of a contract. The contract of service was for two
years and the defendant had committed a breach of that contract by
terminating it before the two years had
expired. The claim, he maintained, was based on contract and should not be put in the category of summary dismissal
which was a tort. (b) He submitted, in the alternative, that section 28 did not
apply because the plaintiff did not come
within the definition of employee as
used in that Act.
HELD
(1) “I accept Mr. Jussa’s submission that this case has to be decided according to
the laws of Tanzania. Although the contract of
service was between a foreign national and a foreign company, it was
made in Tanzania to be performed in Tanzania and the alleged breach occurred in
Tanzania. The jurisdiction of this court
to entertain this suit is governed by the laws of Tanzania.”
(2) “I am unable to accept the first
arm of Mr. Versi’s submission, namely, that
section 28 did not apply because
the present action was based on contract
for wrongful dismissal and was not an action for summary dismissal
as contemplated by the Security of
Employment Act. The term ‘summary dismissal’ is
not defined by the Act but has
been judicially defined. I refer to the case of Kitundu Sisal Estate v. Shingo and Others ,
(1970) E. A. 557 …………. See also the decision of this
Court in Mohamedi and Others v. The Manager, Kunduchi Sisal Estate, (1971) H.C.D. n. 430. The decision of the
Court of Appeal referred to above established that dismissal without notice was
summary dismissal. Does the fact that
the plaintiff in the instant case was
alleging, not that the contract was
terminated without notice, but that it was terminated before the two years had
run out, make any difference? In may view it does not. To terminate a contract
of service before it has run out its
course is as much a summary dismissal as
to terminate a contract of service without notice when notice was provided
or in the contract. The complaint in
both cases is the breach of contract. The argument which sought to distinguish
the present case from the case of
summary dismissal on the ground that the
latter case the remedy was only to sue for wages in lieu of notice is unsound.
The remedy for summary dismissal is an
action for damages which may be general and/or special. The important
thing is the cause of action and not the
remedy sought. Finally, to argue that summary dismissal is based on tort and
not on contract is equally unsound. Every action for summary dismissal is based on a contract of service expressed
or implied. An action for summary dismissal is not and
action in tort but is an action for breach
of contract of service.”
(3) “I accept the argument that
section 28 of the Security of Employment
Act does not apply to his case if the plaintiff
does not fall within the category
of employees to which the Act
applies. Section 4(2) of the Act
provides that the Act shall be read as on with the Employment Ordinance, Cap.
336. Section 4(1) of the Act provides that the term ‘employee’ shall have the
meaning assigned to it by the Employment
Ordinance subject to certain exceptions
……. Section 2 of the Employment Ordinance defines an employee as “any
person who has entered into or works under a contract of service with an
employer whether by way of manual labour, clerical work or otherwise and whether the contract is expressed or implied
or is oral or in writing.” Section 1(3)
of the Employment Ordinance
provides that the President may by order in the Gazette exempt any person or class of persons from
the operation of the Employment
Ordinance or any provision thereof or of
any regulation or order made there under. By Government Notice Number 26 of 1961 the provisions of
the Employment Ordinance including
section 37 which governs summary dismissal were made inapplicable to persons in
receipt of wages exceeding 80,000/= per annum or the equivalent monthly rate. This means that a person in
receipt of such wages is not an employee
for the purposes of Section 28 of the
Security of Employment Act …… The
attention of this Court has However,
been directed to an amendment to [section 4] introduced by the Security of Employment (Amendment) Act 1969 No. 45 of 1969. It adds a new sub-section
4(e). The effect of this amendment is that the amount of wage received
is not now the criterion. Section 4 (e) provides that “Any employee who, in the opinion of the
labour officer, is employed in the
management of the business of his
employer,” is not an employee for the purposes of the Security of Employment
Act. This amendment has introduced some
uncertainty in this case because the question whether the plaintiff, as the Restaurant Manager of
the Oyster Bay Hotel comes under section
28 of the Security of Employment Act
does not now depend on any objective
standard but on the subjective opinion
of the labour officer ….. This can hardly be regarded as a healthy or satisfactory
state for the law to be in. The jurisdiction of
this court to entertain the present suit has been put in issue and in
view of the present state of the law remains in issue. I think the proper order
to make in the circumstances is to stay
the suit leaving it open to either party to obtain the opinion of the labour
officer under section 4 (e) of the Security of Employment Act as amended by the Security of Employment
(Amendment) Act, No. 45 of 1969.”
(4) Suit
stayed until the opinion of the
labour officer is obtained.
MAPANDA V. THE MANAGER, EAST AFRICA
AIRWAYS(1970) H.C.D n. 24
FACTS
The
appellant in this
case was employed
by East African
Airways as a
security clerk. On the
9th February, 1967,
the Personnel Officer
of the company
sent a letter to
him informing him
that his services
had been terminated
by one month’s notice effective
from the date
of the letter.
He informed the
appellant that he would
in fact be
given one month’s
salary instead of
notice and that
he would also be
paid whatever other
emoluments to which
he would be
entitled. Two reasons were
stated in the
letter for the
termination of his
services. It was
alleged that he had
come to work
late on one
occasion. He had
reported at 8.00
a.m. instead of at
5.30 a.m. In
addition, he had
altered the time-sheet
to read 5.30
a.m. instead of
8.00 a.m. it
was also alleged
that he had
disobeyed an order to
remain on board
a certain plane
until he had
been relieved. It
is quite clear
that both these matters
would be offences
under the Disciplinary
Code set out
in the Security of
Employment Ordinance which,
if established, would
justify the summary dismissal
of the appellant.
The company, however,
did not choose
to dismiss him summarily,
but chose instead
to terminate his
services. The appellant took
the letter to
N.U.T.A., his trade
union; a consultation
took plans between N.U.T.A
and the Personnel
Department of the
respondent company. As a
result of these
consultations, it seemed
to have been
established that the appellant
had in fact
reported late for
work and has
in fact altered
the time-sheet. It does
not appear to
have been established
that he had
failed to stay
on the ‘plans until
his relief had
arrived. On the
advice of the
N.U.T.A. steward, he
wrote a letter to
the company asking
forgiveness for having
arrived late and
having altered the time-sheet.
The appellant stated
that he was
compelled to write
this letter by his
N.UT.A. Adviser. He
denied that he
was late or
that he altered
the time-book. He asked
that the altered
time-book be produced
in Court. This
was not done in
the court below.
The trial magistrate
was satisfied that
the appellant had committed the
offence. The appellant
did not state
in the court
below that he had
been compelled to
write the letter.
HELD
(1)
The trial magistrate
was justified in
finding that the
appellant had committed the
offence.
(2)
“Even if, however
the offence had
not been established against
the appellant, I
am satisfied that
he could not
succeed in his claim.
This was an
oral contract of
service. Section 32
of the Employment Ordinance, Cap.
366, as amended
by the Employment
ordinance (Amendment) Act, No. 82 of
1962, specifically provides
that an oral
contract of service
may be terminated by
payment to the
other party of
appropriate entitlements under
the contract. This right
does not seem
to have been
abrogated by the
Security of employment Act,
Cap. 574. The
Security of Employment
Act deals entirely
with summary dismissal, not
with termination of
contract of employment.
Before me, the appellant
based his claim
largely on the
Security of Employment
Act. He argued that
he should have
been taken before
the Words Committee
and that his offence
should have been
established before them.
He states that
since that had not
been done, the
termination of his
services had been
improper. All that
he says would be
quite true if
he had been
summarily dismissed, but
in fact he has
not been
summarily dismissed.”
(3)
“It is also
worth pointing out
that the jurisdiction of the courts
has been entirely
ousted under the
Security of Employment Ordinance.
If the appellant’s
claim, therefore, was
under this Ordinance, he
would have had
no right of
audience, except, of
course, by way of
certiorari or mandamus,
in order to
challenge the correctness
of the procedure followed.”
(4)
Appeal dismissed.
BENBROS MOTORS TANGANYIKA LTD V. RAMANLAL HARIBHAI PATEL(1967) H.C.D. n. 435.
FACTS
In
July, 1964, a
transaction occurred between
the plaintiff and
his employer, the defendant, which
is the subject
of this action.
In his action,
filed in District
Court on 11 February,
1965, plaintiff claimed
Shs. 1500/- “severance
allowed.”
On
appeal, however, in
resisting the defendant-appellant’s allegation
that the District Court
lacked jurisdiction, he
argued that his
action was based
upon a “suspension from
labour,” and not
upon a “dismissal.”
The Security of
Employment Act, which
had come into
operation on 5
January, 1965, provided
(with exceptions not
material here) that
no suit or
other civil proceeding
could be maintained
in a civil court
“with regard to
the summary dismissal
or proposed summary
dismissal” of an
employee, such cases
being within the
exclusive jurisdiction of the Conciliation
Board. Prior to the
passage of the
Act, it would
have been clear
that the plaintiff had
a period of
3 years to
bring his claim.
[Indian Limitation Act
of 1908, Art.
7.] Cases to which
the Act applies,
however, must be
brought within 7
days of the dismissal
or proposed dismissal.
Plaintiff argues that
to apply the
Act to his
claim is to extinguish
his cause of
action, because of
this provision. He
contends that the Act
is “substantive,” and
that it cannot
be so applied
because the Act
contains no express
indication that it
should be applied
to causes of
action accruing before its
effective date.
HELD
(1)
The action here
must be taken
to be one
based upon a
“dismissal,” within the
meaning of the
Act. The claim
is for “severance”
allowance, which term implies
“ a complete
and permanent cessation
from employment.” A
suspension” would be
temporary, “pending some
other event usually
an investigation into some
act on the
part of the employee ---“ after
which reinstatement might
be had; The complaint
here contains “no
hint of such
claim …… either
for investigation or
for reinstatement.”
(2)
When a new
enactment deals with the rights of
action, unless it is
so expressed in
the Act, an
existing right of
action is not
taken away; but when
it deals with
procedure only, unless
the contrary is
expressed, the enactment applies
to all actions,
“whether commenced before
or after the
passing of the
Act.” [Citing Wright
v. Hale (1860)
6 H. &
N. 227; and
the Ydun (1898) P.D.
236.]
(3)
The Security of
Employment Act is,
in this connection,
“a matter of procedure
and not one of substance,
in that it
merely substitutes one
tribunal for another in
a particular class
of cases. It
does not affect
an alteration in
the law governing the
relation of master
and servant, but
merely provides an
alternative venue for the
settlement of disputes.”
Thus, where the
plaintiff’s claim accrued before the
effective date of
the Act, and
his action was
instituted after that
date, the Act must
apply to the
case.
(4)
The District Court,
therefore, lacked jurisdiction
to entertain the
plaintiff’s action.
MOHAMED & OTHERS V. THE MANAGER,
KUNDUCHI SISAL ESTATE(1971) H.C.D. n. 430
FACTS
Six
persons who were
employed by the
Kunduchi Sisal Estates
sued their employer claiming
Shs. 81, 741/termination of the
as compensation because
of he or services without
notice. The sum
comprised severance
allowance, leave and
travel allowances and
a month‟s wages
in lieu of notice
the Court held
that the basis
of the claim
was summary dismissal and
that by section
28 of the
Security of Employment
Act, Cap. 574, the jurisdiction of
the court was
ousted. The district
magistrate relied on Kitundu
Sisal Estate v.
Shinga (1970) E. a.
557 in arriving
at his decision.
For
the appellant it
was argued on
appeal that that
case was distinguishable from
the present one because
the latter case
concerned claims not on
summary dismissal but
upon the exhaustion
of the work which
the appellants had
been employed to
perform. It was
also submitted that the
termination of contract
services without due
notice does not necessarily amount
to summary dismissal.
HELD
(1)
“S. 19 of
the Security of
Employment Act, Cap.
574 restrict the right
of an employer
to dismiss an
employee summarily. It provides
that subject to the provisions
of s. 3
but notwithstanding the provisions of
any other law
no employer: (a)
shall summarily dismiss
any employee or (b)
shall, by way
of punishment, make
any deduction from the
wages due from
him to any
employee, save for
the breaches of the
Disciplinary Code, in
the cases and
subject to the
condition s, prescribed in this
part and the
second Schedule to
this Act.” S.
20 of the
Act gives the right
to an employer
to dismiss an
employee summarily for
breaches of the Disciplinary
Code in the
cases in which
such penalty is
allowed under the Code.
S. 21 prescribe
the procedure to
be followed before
that right can be
exercised. The contention
for the appellants
was that unless
an employer complied with
this procedure and
for a b 344 reach which justifies
summary dismissal under
the Code any purported dismissal cannot
amount to summary
dismissal and therefore
s. 19 which ousts
the jurisdiction of
the court cannot
apply. The short
answer to this contention is
that where an
employer does not
comply with the
Act his action becomes
wrongful but is
still summary dismissal
for which but
for s. 19 of
the Act the
employee can bring
an action for
damages. Compliance with the
provisions of the
Act is a
complete defence to
an action for wrongful summary dismissal but
that is not
the point. S. 19
preclude an employee from bringing
any proceedings with
regard to summary dismissal so
that the can badly
arises . question whether the
employer has a
defense or not with
the provisions Compliance
constitute summary dismissal.
It rather provided of the Act
does not des a
justification for summary dismissal.”
(2)
“[It was further
contended‟ that the
absence of notice of
termination of employment
does not necessarily
amount of summary dismissal.
The substance of his argument
was that under
s. 32 of the
Employment Ordinance as
amended by The
Employment Ordinance
(Amendment) Act 1962
a contract of
service which cannot
be terminated without notice
may yet be
terminated without notice
by payment of all
wages and benefits
to which an
employee is entitled.
S. 32 of the
said act provides
as follows: service may terminate the same –- “Either party
to an oral
contract of (a) in
the case of
a contract which
may be terminated without
notice, by payment
to the other
party of a
sum equal to all
wages and other
benefits that would
have been due to
the employee if he
had continued to
work until the
end of the
contract period or
in the case of
contracts to which
section 34 refers
until the completion
of the contract; (b)
in any other
case, by payment
to the other
party of a sum
equal to
all wages and
other benefits that
would have been
due to the employee
at the termination of the employment
had notice to
terminate the same been
given on the
date of payment.”
It is common
ground that the contract of service
in this case
was an oral
contract in s. 2
of the Employment Ordinance t of
service as defined as
amended by Act
62 of 1964.”
3) “When an
employee is dismissed
summarily without justification
he has a cause of
action for summary d against the
employer, that is
to say he
can bring an
action dismissal against the
employer. Usually it
takes the form
of action for damages . These
damages may be
general or special depending on whether
the employee is claiming
a specified amount
such as severance allowance
or unused leave
pay (special) or
is asking the
court to assess his
loss such as
the claim for
reasonable notice (general). These claims
have to be
founded on a
cause of action
………..Assuming without deciding the
point that s.
32(b) provides an
alternative remedy the fact
still remains that
the cause of action
is basically one
for summary dismissal. S. 30 of
the Employment Ordinance
(Amendment) Act 1962 provides
that an oral
contract of service
from month to
month (and it is
common ground that
that was the
nature of the
contract in this
case) can be terminated (i) by
notice; or (ii)
by payment in
lieu of notice;
or (iii) summarily for
lawful cause. In the
present
case the contract
was neither terminated by
notice nor by
payment in lieu
of notice. It
could only then have
terminated summarily. The
appellants were really
contending that the summary
termination was without
lawful cause and
was why they
were claiming a month‟s wages
in lieu of
notice. It is
obvious therefore that their
cause of action
was for summary
dismissal without lawful
cause. Unfortunately for them
s. 28 of
the security of Employment Act
says that proceedings relating
to such cause
of action cannot
be entertained by the
law courts. they
must reconcile themselves
to the legal
position that where a
contract of service is
terminated, that is
to say, where
they are made
to stop work either
expressly or by
implication, without notice
or without payment in
lieu of notice
where notice is
required it can
only mean summary dismissal.
On principle this
is the position and
on authority the Court
of appeal for
Eastern Africa has
said so in
the Kunduchi Sisal Estates
case and it
is binding on
me.”
(4)
Appeal dismissed.
PATEL
V. BENBROS MOTORS TANGANYIKA LTD [1968]
1 EA 460
FACTS
The appellant was dismissed from his employment on
August 4, 1964, after having been
suspended by his employer on July 27, 1964. On November 2, 1965, after writing various letters stating
claims against his employer, the
appellant filed a plaint. In the meantime, the Security of Employment Act 1964 had been passed and
was brought into operation on May 1, 1965. Section 28 of that Act reads: “No
suit or other civil proceedings . . .
shall be entertained in any civil court with regard to summary dismissal
. . .
of an employee .
. .”. The respondent urged that
the effect of s. 28 was to take away the
jurisdiction of the
courts to entertain claims based
on summary dismissal unless the plaint
was filed before May 1, 1965. The
appellant argued that s. 28 only applied where the summary dismissal took
place on or after May 1, 1965. The High
Court on first appeal having held that the court had no jurisdiction (see
[1968] E.A. 247 ), the appellant brought
this second appeal to the Court of Appeal.
HELD
(i)although there is a rule of construction
that prima facie if a provision
affects procedure only it operates
retrospectively, there is a further
rule that the courts will not
construe a legislative provision so as to exclude the jurisdiction of the
courts, unless it is manifestly the intention
of the legislature so to provide;
(ii) declaring the
provision retrospective would
be to deprive an employee
wrongfully dismissed before the Act
of all
remedy, and would be
contrary to the intention of the
legislature which designed the Act to improve the position of employees;
(iii) the court therefore had
jurisdiction to hear cases where the summary
dismissal took place before May
1, 1965.
Appeal allowed with costs and case
remitted to the High Court to hear the appeal on its merits.
D
W OLOCHO AND JOEL KANJA V. COUNTY COUNCIL OF NYANDARUA [1966] 1 EA 467
FACTS
The two plaintiffs were employees of
the defendant and in addition they represented the local branch of the Kenya
Local Government Workers Union on the
joint staff committee of the defendant. At a meeting between the plaintiffs and
the officers of the defendant pay
increases for the subordinate
staff were agreed and it was decided that the staff should be informed
of this by a circular
to be enclosed in the pay packet for
December of every member of the staff. The circulars were sent to
the revenue office f or inclusion
in the pay packets. The two plaintiffs were
in charge of that office, as a
revenue officer and a chief clerk respectively.
They disliked the third paragraph which stated that the
position had been put
to the Union and accepted by it. Both the plaintiffs then withheld the
circulars from the pay packets.
When the treasurer of the council
became aware of the situation he told the plaintiffs that the circulars must be
put in the pay packets
and later the plaintiffs were
warned that if they persisted in their
refusal it might have very serious
consequences. The plaintiffs were summarily
dismissed for disobedience whereupon they sued the defendant for wrongful dismissal.
HELD
(i) the refusal to have the circulars
included in the pay packets, notwithstanding that the plaintiffs
were warned that this refusal if persisted
in might have very serious consequences, constituted wilful
refusal to obey a lawful order on
the part
of the second plaintiff and at least willful
disobedience and wilful interference on the part of the
first plaintiff to prevent the despatch of the circulars;
(ii) the dismissals were not
wrongful.
Suits dismissed.
ALIMAHDI V. ABDULLA MOHAMED[1961] 1 EA 83
FACTS
The respondent claimed compensation
in the Dar-es-Salaam District Court
under the Workmen’s Compensation
Ordinance and alleged that the appellant
was his employer. The respondent claimed that he lost his eye through sand
thrown up by
a passing vehicle
which entered his eye when he was travelling on duty in a vehicle belonging to the appellant. It
was admitted that the
injury occurred between Lindi and
Mtwara. The main issues at the trial were whether the respondent was an employee or a partner of
the appellant and whether the respondent
lost his eye by an accident arising out
of and in the course of his employment. The respondent gave evidence
that a former partnership with the appellant had been dissolved and the
appellant called no evidence at
all. The trial magistrate found for the respondent on both issues. On
appeal it was submitted that on the evidence
the trial magistrate should have
held that the respondent had failed to
discharge the onus of proving that the relationship of master and servant
existed at the material time, or that an
accident had occurred, and if so,
that it occurred in the course of employment, that the
Dar-es-Salaam District Court had
no jurisdiction to enforce the respondent’s
claim by virtue of s. 16 (1) of the
Workmen’s Compensation Ordinance as the alleged accident took place outside its territorial jurisdiction. Section
16 (1) ibid, provides, inter alia com , that a workman may “make an
application for enforcing
his claim to pensation to the court having jurisdiction
in the district in which the accident
giving rise to the
claim occurred”.
HELD
(i)on the evidence available to the
trial magistrate it was open to him to find that the respondent was an employee
and not a partner of the appellant.
(ii) there was evidence to support
the finding that the accident arose out of and in the course of the
respondent’s employment.
(iii) the words “the workman
may” in
s. 16 (1) of
the Workmen’s Compensation Ordinance are clearly permissive and are not to be read in any compulsive or restrictive sense.
(iv) it was open to the respondent at
his discretion to sue either
in the court having jurisdiction where
the accident occurred under s. 16 (1) of the Ordinance or
under s. 20 of the Code of Civil Procedure at the place where his employer
resided and carried on business; accordingly the Dar-es-Salaam District Court had jurisdiction to determine
the claim.
(v) by s.
21 of the Code of Civil Procedure the appellant was
precluded from objecting on appeal on
the ground of jurisdiction.
Appeal dismissed with costs.
VIRANI V. DHARAMSI[1967] 1 EA 132
FACTS
The deceased workman was employed as
a clerk by the appellant and part of his
duty was to go to a particular godown and collect coffee beans.
In the course of such duty, the deceased
and another person, who
was not an employee of the
respondent, had a quarrel as a result of which the deceased died. The court
found that the quarrel resulted from
acts done by the deceased for the
purposes of and in
connection with his
employer’s business. The judge,
on appeal from the resident magistrate,
stated that an accident arose “out of
and in the course of employment” if it resulted from an act which the employee was
employed to do, even if the
employee adopted a wrong method of doing the act or did it in
a wrong manner.
The employee in this case was
employed to go and collect beans which was precisely what he was doing, and in the course of his
so doing, an argument arose and from
this argument the
employee received injuries from
which he died. The judge therefore upheld the decision of the resident
magistrate awarding compensation to the dependants of the deceased. The
employer appealed to the Court of Appeal.
HELD
In these circumstances the workman was
clearly enabled to recover compensation
under s. 5, whether under s. 5 (1) alone or under s. 5 (1) as construed with s.
5 (2).
Appeal dismissed.
HARNAM KAUR V. CHAMPION MOTOR SPARES LTD AND ANOTHER[1971] 1 EA 29
FACTS
The appellant’s husband died in a motor accident, and left a
widow and an infant
child. The administrator of the
estate signed an agreement under the
Workmen’s Compensation Act, s. 16 purporting
to discharge the employer from
all liability. The consideration was paid to the administrator. On the
appellant’s action for damages it was held that the action was barred by s.
24 ( a ) of the Act. On appeal
by the appellant alone it was argued that s. 16 of the Act did not
apply to
a dead workman, that the
claim of a minor could not be
compromised other than by payment into
court.
HELD
(i)
A binding agreement can only be
made when all the dependants of the deceased are sui juris;
(ii)where there are minors
compensation must be paid into court;
(iii)where the
order below is upset an order for
costs made against a party who has not
appealed must be set aside.
Appeal allowed.
SHIVJI V. PELLEGRIN(1972) H.C.D. n. 76
FACTS
The plaintiff’s motor vehicle which
was being driven by his driver was in
collision with the defendant’s motor
vehicle and as a result the plaintiff’s
vehicle was damaged beyond repair and his
driver received extensive personal injuries. The plaintiff was obliged
to pay his driver a total of Shs. 14,132/65 by way of
compensation and for medical expenses under the
Workmen’s Compensation Ordinance. The plaintiff sought to recover this amount from the defendant and asked to amend the plaint
to include the claim.
HELD
1) “Order V1 Rule 17 of the
Civil Procedure Code provides as
follows ‘The court may at any stage of the proceedings allow either party to
alter or amend his pleadings in
such manner and on such terms as
may be just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in
controversy between the parties’. The principle on which the court will
exercise this discretion were discussed in Eastern Bakery v. Castelino (1958) E.A. 461. As a rule amendment to
pleadings should be freely allowed if they can be made without injustice to the
other side. The powers of amendments to pleadings should be freely allowed if
they can be made without injustice to the other side. The powers of amendment
should not be used to substitute one cause of action for another or change an action into another of a
substantially different character. Subject
to this, the fact that an
amendment may introduce a new case is
not a ground for refusing it.”
(2) “The plaintiff had to establish
negligence in order to succeed in the pending suit just as he has to establish it in order to establish the right to indemnity under s. 23(3) of the Workmen’s Compensation
Ordinance was statute barred under Article 22 of the Schedule to the Indian Limitation Act which he submits is
applicable to this case since the cause
of action accrued before the Law of Limitation Act No. 10 of 1970 came into
operation on the 1st March 1971. I agree
that where an amendment would prejudice the rights of the opposing party in that it would deprive him of a defence of limitation which has accrued since the filing of the suit it should be refused. The question
for consideration is whether the
plaintiff’s claim under s. 23(3) of the Workmen’s Compensation Ordinance is time-barred.”
(3) “The accident occurred on the
30th September 1967. The plaint in this
case was filed on the 1st March 1969, the compensation was paid to the plaintiff’s driver in September 1968
and the plaintiff’s right to indemnity
accrued as from the date of payment. The present application to amend the
plaint was filed on the 6th October 1971, that is to say, 3 years after the right of action accrued. I accept the
submission by Mr. Talati, learned counsel
for he plaintiff/applicant that the
law that applies in this case is the Law of Limitation Act (No. 10 of 1971) and that the
claim under s.23(3) of the Workmen’s Compensation Ordinance Is not a claim in
negligence for personal injuries but a statutory claim to indemnity based on
proof of negligence.” [His lordship then referred to S. 48 of the Limitation Act and proceeded]: “This
case comes under s. 48(1) of the Act
Article 10 of Part I of the First Schedule to the said Act provides 6 years as
the period of limitation for a ‘suit to recover any sum recoverable by virtue of a written law other
than a penalty of forfeiture or sum by
ways of penalty or forfeiture’. I
hold therefore that the plaintiff’s claim
under s. 23(3) of the Workmen’s
Compensation Ordinance is not time-barred.”
(4) “There is the further consideration that the
defendant has, since the date of the accident (30/9/67), been absent from
Tanzania. S. 20 of the Law of Limitation Act provides for any suit the time during which the
defendant has been absent from the United Republic shall be excluded. The
circumstance that under the Civil
Procedure Code the defendant could have been served with a summons during his absence from the United Republic is
irrelevant to the
application of s. 20 of the said Act. (See (1894) 1 Q. B. 533
and (1894) 2Q.B.352).”
RUTUA V. ZAMBIA TANZANIA ROAD
SERVICE LTD AND ANOR (1972) H.C.D. n.
62
FACTS
The deceased was employed by the
1st defendant as a driver and he died while on duty from injuries
sustained from a motor accident. The 1st
defendant duly reported the accidental death to the Labour Office for the assessment or
compensation. That office assessed the
compensation for 8 dependants, i.e. the widow, 4 infant children,
mother, father and brother of the
deceased. Eight agreements were drawn up under section 15 of the Workmen’s Compensation Ordinance and
were signed in Kenya by the dependants. An action was subsequently
brought by the dependants under the Law Reform (Fatal Accidents &
Miscellaneous Provisions) Ord., Cap.
360; the agreements were pleaded in defence. It was argued on behalf of
the plaintiffs that the agreement
envisaged in section 15 of the former Ordinance must be one between the employer and a living
workman and was not applicable where the
workman died. A ruling was sought on this interpretation of section 15.
HELD
(1) “This argument does not carry
much weight as the meaning of “workman” is extended to his legal
personal representative in case he is dead
as it is evidenced by the provisions in section 2(3) of the Workmen’s
Compensation Ordinance.”
(2)”The real dispute that must be
resolved is whether or not the agreements signed on behalf of the 4 infant children are valid and binding on these
children. In Herman Kaar vs. Champion
Motor Spares Ltd. and another 1971 E.A. 28 it was held by the Court of Appeal that (i) a binding agreement under the
Workmen’s Compensation Ordinance) can only be made when all the dependants of
the deceased are sui juris and (iii) where there are minors compensation must
be paid into court. Quite clearly the children could not be barred in this claim. It is a
different case with the widow, mother,
father and brother of the deceased. In
Herman’s case the claim of the dependants’ children as well as that of the
widow was allowed to go to trial although compensation had been paid under an
agreement come to. I think in respect of
all dependants with liberty to the defendants to set off what has already
been paid as provided in section 24 (1)(d) of the Workmen’s Compensation
Ordinance.”
ABIFALAH V. RUDNAP ZAMBIA LIMITED DUFFUS(1971) H.C.D. n. 113.
FACTS
The
appellant claimed damages
for personal injuries
caused by the alleged
negligence or breach
of duty or
breach of contract
of employment on the
part of the respondents, his
employers. He made
an alternative claim for compensation
under the Workmen‟s
Compensation Ord. (Cap. 263).
The plaint was
filed o n without the th e 21/7/70 and
on the 4/8/70
the appellant knowledge of his advocates
entered into what
appeared to be a
valid agreement with
the respondents for
payment to him of
the compensation to which
he was entitled
under the Ordinance.
The respondents then filed
their defence in
which they pleaded
that by reason of
the agreement of
4/8/70 and the
payment by them to
the appellant of Shs.
61,773/30, the appellant‟s
claim both under
the Ordinance and
under the suit were satisfied and
discharged. The appellant
then alleged that
the agreement was induced
by fraudulent and
false representations by
15(3) such an agreement
may be s. cancelled by
the court within
three months if it
is proved that
it was induced
by such fraud,
undue influence,
misrepresentation or other
improper means as
would, in law,
be sufficient ground for
avoiding it. The
trial judge adjourned
the proceedings to enable the
appellant to make
an application to
have the agreement
set aside. This appeal
was brought on the ground
mainly the trial
judge should not have
adjourned the proceedings
but [admitted should
have [evidence tendered on the appellant ‟s
b eha l f that the purported
agreement was not proper
under the provisions
of s. 15
of the Ordinance
which required it to
be in
language understood by
the appellant or to
Labour Commissioner.
HELD
(1)
[per Law J.
A.] “jurisdiction in be
endorsed by the respect
of workmen‟s compensation is,
by the clear
intendment of the
Ordinance, exclusively reserved to
district courts, except
to the extent
that provisions to the
contrary is specifically
made in the
Ordinance” (See ss.
20, 21 and
24.) I accordingly con prima
facie sider that the
power to cancel
an agreement which
is valid, on any of the
grounds specified in
section 15(3) of the
Ordinance, is exclusively
within the jurisdiction
of district courts.”
(2)
“An agreement under section
15 is a
bar not only
to the institution of proceedings brought
in respect of some
injuries independently of the
Ordinance but if the
agreement is made
after such institution to the continuation for
such proceedings. This
appears to me
to be clear
from a perusal of
the proviso to
section 24 of
the Ordinance, particularly
proviso (d), which requires a
court to deduct
from damages awarded
in proceedings brought independently
of the Ordinance
any compensation paid by
the employer, other
than compensation claimed
in proceeding s under the
Ordinance or pursuant
to an agreement.”
(3)
“Even if it
is a fact that
the agreement was
not read over
and explained to
the appellant or understood
by him, with
the result that
the Labour Officer‟s
endorsement on it was
not true, the
agreement would not for
those reasons only
be void. It might
nevertheless be advantageous
it and rely on
it, in which
case the employer would
be bound by
it terms. Such
an agreement is,
however, voidable at the
option of the
workman, who can apply
under section 15(3) of
the Ordinance to
have it cancelled
as having been
obtained by improper means.”
(4)
“I accordingly find
myself in full
agreement with the
action taken by the
learned judge in
this case. He was faced
with an apparently valid agreement,
which he in
my opinion rightly
considered to constitute
a bar to further
proceedings in the
suit until and
unless it was
cancelled. He stayed the
suit to enable
the necessary application
to be made.”
(5)
The district court of
the district in which
the agreement was
made has jurisdiction to
entertain an application
to have the
agreement cancelled and not
necessarily the district
court where the accident occurred. [Distinguishing ALL MAHDI
v. ABDULLAH MOHAMED
(6)
Appeal dismissed.
MSOWOYA V. MSOWOYA(1971) H.C.D. n. 87.
FACTS
A
worker employed by
the National Housing Corporation, Dar
es Salaam met with
a fatal accident as
a result of
which an award
of Shs. 29,000/was
made for his
dependents under the
Workmen‟s Compensation
Ordinance (cap. 263).
Three claimants appeared;
the worker‟s father,
his widow, and his
step m other. In
accordance with section
12(1) of he Ordinance,
the award was
allotted equally between
the father and
the widow. The deceased father filed
an appeal against
the allotment arguing
that the sum awarded
to him was
to low; that
he was solely
dependent on the d worker;
that widow had no
issue he had discharged
all the worker‟s
debts; that and was likely
to remarry. The
widow on the
other had filed a petition for
revision of the
award under s.
79 Civil Procedure
Code arguing that the
magistrate who made
the award acted
with irregularity material which
resulted in injustice;
that she should
have been awarded the
whole or a
substantial portion of
the sum in
issue. In his
ruling the magistrate had
stated that he
took into account
that the widow
had no issue, that
she was likely
to get married;
and that the
ordinance ignored African customary law
whereby the stepmother
would not have
been ignored as a
dependant.
HELD
(1)
No appeal lay
from an award
by the District
Court. (Citing section 12
(6) of the WO
RKMEN‟S COMPENSATION with
an order of the
district court in
revision if it appears
to the Court
there was an error
material to the
merits of the
case involving injustice,
in the words
of the Magistrate‟ Courts
act, or in
the words of the Civil
Procedure Code, the court
exercised its jurisdiction
illegally or with
material irregularity.”
(3) Dependant means
a member of the family
of the worker,
who in relation
to a native is any of
the person referred
to in the
First Schedule to the
Ordinance, and who
was dependent wholly
or in part
on the earnings
of the 59 (1971) H. C. D.
deceased worker. The
schedule does not
mention a stepmother
as being a member
of the family
of the worker.
(4)
the magistrate did
not made any specific
award to the
deceased‟s stepmother but
merely took into consideration that
she was dependent
on the deceased‟s
father who in turn
was dependent on
the deceased.
(5)
On my view
of the evidence
and the proceeding as
a whole, I
am very far
from persuaded that
the magistrate acted with material
irregularity, in the
words of the
Civil Procedure Code, or
that in his
apportionment of the
award there was an
error material to
the merits of
the case involving
injustice, in the
words of the Magistrates‟
Courts act. I
therefore consider that
this Court would
not be justified in
interfering with the
magistrate‟s Solomonesque judgment and
order apportioning the
compensation awarded equally
between the widow and
the father of
the deceased.”
(6)
Petition for revision
dismissed.
MJIGE
V. E. A. RAILWAYS &
HARBOURS AND OTHERS(1970) H.C.D n. 182.
FACTS
In
this case the
dependants of a
railway guard named
Kilio, who died
in a motor vehicle
accident on the
30th November 1966
sued four persons
in damages under section
4 of the
Law Reform (Fatal
Accidents and Miscellaneous Provisions) Ordinance
Cap. 360. The
dependants were his
widowed mother, Mariam Mjige
(1st plaintiff) and
his minor daughters
Mandalwa and Rukiya
(2nd plaintiffs), who sued
by their guardian
Mariam. The first
defendant was the General
Manager of the
E. A. R.
& H. and
the second defendant
Abdallah Juma was a
driver employed by
the E. A.
R. & H.
Kilio died as
a result of
a collision which occurred
between the Railways’
vehicle, a Peugeot
saloon car and
a lorry. The Lorry
was owned by
the third defendant
Alli Chiliga and
under the control
of his driver Hassan
Mohamed, the fourth
defendant. The lorry
was stationary at the
time of
the collision, facing
towards Korogwe, and
Abdallah Juma was
driving the Railways’ vehicle
from Tanga to
Korogwe. The collision
occurred at about
12.50 a.m. just after
midnight between the
30th November and
1st December 1966.
Juma was conveying Kilio
from Tanga to
Korogwe in the
course of his
duties. Kilio had been
instructed to board
the train at
Korogwe on which
he was to
act as a
guard. Kilio, therefore, was
also acting in
the course of
his employment…. The
lorry was hired by
third parties to
convey their produce
to Dar es
Salaam and was
returning from Dar es
Salaam to Lushoto.
It left Dar
es Salaam at
5.00 p. m on the
30th November and had
joined the Tanga/Korogwe
road. But as
Hassan felt unable
to continue driving at
that late hour,
he, with the agreement of
the hirers, decided
to take a rest.
Shortly after 12.30
a.m. Hassan was
awakened by the
noise of the collision, and saw the
car overturning before
it came to
rest in front
of him in the
grass off the
road on the
left facing Korogwe.
The police officer,
who visited the scene
of accident, discovered
that the lorry
abutted into the
tarmac surface of the
road about 2
ft. and thereby
caused some obstruction.
Therefore if the
chevrons and reflectors had
been somewhat dusty,
as the police
officer found, and
the parking lights had
not been switched on,
the lorry stood
to cause some
obstruction for other users
of the road
traveling towards Korogwe.
The plaintiffs had
been paid by the
first defendant Shs.
24,000/- under Workmen’s
Compensation Ordinance and Shs.
8,990/- as a
death gratuity, which
was said to be
discretionary.
HELD
1)
“It was Hassan’s
duty to take
proper precautions to
see that the position
of his vehicle
was either clear
of the road
or could easily
be noticed by other
drivers using his
side of the
road. This is
more especially the
case if it was
true that there
was some mist
which had gathered
on this otherwise
dark night ….. on
the other hand,
it was Abdallah’s
duty to drive
at a reasonable
speed with his lights
fully on and
keeping a proper
lookout ….. It
seems clear that
there was some fault
on both sides.
I would apportion
the liability for
the accident two –
thirds on the
side of Abdallah
and one-third on
the side of
Hassan”.
(2)
“It was Ali Chiliga’s
case (3rd defendant)
that he was
not responsible for
whatever his driver Hassan
was under their
direction ….. it
was, no doubt,
a case where
Ali Chiliga was the general employer
while (hirers) had a contractual
right to the
use of Hassani’s services.
On Ali Chiliga’s
part he was
responsible for the
wages and food allowance
of Hassani as
well as the running
and maintenance expenses of
the vehicle. As
such the manner in
which Hassan was to drive
the vehicle was,
of course, to
conform with the traffic
regulations and Alli’s
interests in preserving
the vehicle in
good condition, and as
Alli says if Hassan committed
any wrongful act,
it was Alli’s right
to dismiss him.
Hassan was also
to return within
a specified time;
it was not open
to (hirers) to
give Hassan instruction
which would require
the lorry to deviate
from the route
or delay its
return. On the
other hand, it
was open to (hirers)
to require the
vegetable to be
conveyed to markets
in Dar es
Salaam as they chose,
and no doubt
they could require
reasonable assistance in preserving
their produce. But
in the final
analysis it was
Hassan who decided
that he must stop
and rest and
it was up
to him to see
that the
lorry was properly
parked because by this
time he was
simply driving (hirers)
back to Lushoto
in an empty lorry.
At this stage
they were largely
passengers. In my
view, on the
facts as presented by the evidence,
there can be
little doubt but
that Alli was
in control of the
vehicle at the
material time through
his servant Hassan.
In coming to
this conclusion I have
taken cognizance of
MERSEY DOCKS AND
HARBOUR BOARD v. COGGINS
& GRIFFITHS (Liverpool)
Ltd . and MACFARLANE
(1946) 2 ALL E. R. 345 ,
the leading English
case which received
approval in CHURCHER v.
THE LANDING &
SHIPPING CO. OF EAST
AFRICA LTD. (1957) E.
A. 118; and I
hope that I
have sufficiently demonstrated
that the proper
test, being whether or not the
hirer had authority
to control the
manner of the execution
or the relevant
acts of the
driver, has been
properly applied in the
circumstances existing. I
would therefore hold
that as Hassan
was somewhat at fault;
both he and
Alli Chiliga were
responsible to that
extent.”
(3)
Passing to the situation
of Abdallah vis
a vis his
employer the General
Manager of the
East African Railways and
Harbours: “It will
not be disputed
that Abdallay being
the actual tortfeasor on
the basis of
his assumed responsibility or
partial responsibility was directly
liable, and in
general circumstances his
employer was vicariously liable.
But Counsel for
the East African
Community took a
preliminary point that although
the suit might
well be commenced
within three years
of the death of
Kilio in pursuance
of section 4(2)
proviso (ii) of
Cap. 360 nevertheless, this municipal
law was ousted
by legislation concerning the
High Commission and the
Treaty for East
Africa Cooperation (Implementation) Act
No. 42/67; where by
section 93 of
the East African
Railways and Harbours
Act supervened and cut
down the period
to one of
12 months but within the
three year limit. Without going
into details which
are set out
in the ruling
on this subject,
I held that the
suit was time
barred as against
the General Manager
of the Railways.
I do not propose
to add anything
further to that
ruling which will
explain why the suit
was dismissed with
costs against the
plaintiffs as far
as the General
Manager was concerned, and
left Abdallah Juma
standing by himself
as second defendant.”
(4)
(a) “Part of
the difficulty which
arose (with respect
to Workmen’s Compensation Ordinance)
in this trial
was that Counsel
for both sides
were not sure whether
the principal ordinance
applied or whether
the amending ordinance being No.
60 of 1966
had come into
operation at the
date of the
accident or could be
said to operate
at the time
when the suit
was commenced. Further
argument was called for
when it was
discovered that the
amending Act was
brought into operation as
from the 1st
July 1967 by
virtue of G.
N. No. 159
of 1967. The amending
Act therefore came
into force after
the accident but
before the suit
was commenced on the 20 the
April 1968. There
is nothing in
the amending Act prescribing that
it shall cover
accidents which occurred
before it came
into force. I
take it therefore
that the amending Act
affected the employer’s
liability for the
higher payment of workmen’s
compensation as a
result of injuries
received in accident
occurring after the 1st
July 1967. Hence
although the compensation
paid may have been paid
out after the
new Act came
into force, the
amount paid was
properly computed according to
the provisions of
the old Ordnance
and that the
Railways were not liable
to pay the
additional sum provided
by the new
Act. But since
the date of payment
is not actually
known I leave
the point open.”
The court however remarked that
“……. When one
turns to section
6(a) of the
Workmen’s Compensation Ordinance, it
will be seen
that they received
the highest award possible in
the case resulting
from personal injury by
accident arising out
of, and in the
course of the
workmen’s employment.” 4(b)
“But then does
it also follow that
the more stringent
provisions of section
23 of the
old Ordinance also
apply? Section 23 as
far as it is applicable
provides as follows:-
’23. Where the
injury in respect of
which compensation is
payable under the
provisions of this
Ordinance was caused under
circumstances creating a
legal liability in
some person other than
the employer to
pay damages in
respect thereof –
(a) the workman
may take proceedings both
against that person
to recover damages
against any person liable
to pay compensation
under the provisions
of this Ordinance
for such compensation, but
shall not be
entitled to recover
both damages and compensation:’ there
is considerable learning
on the history
of the English Workmen’s Compensation
Acts, but suffice
it to say
that section 23
just quoted stem
from the corresponding
English act of
1908 which in
its day was
innovation granting the workman
the right to
sue for both
workmen’s compensation and damages.
A procedural bar
was however instituted
whereby he could not
recover both. He could
commence proceedings for
both types of
remedy but if he
recovered workmen’s compensation
then he could
not pursue his
right to damages. In
this case as
it is admitted
that compensation was
recovered, then that would
be a bar
to the suit
for damages. The
amendment does vary
with this procedural bar,
and recites as
follows: - ’23.
– (1) Where the injury
in respect of which
compensation is payable
under the provisions
of this Ordinance
was caused under circumstances
creating a legal
liability in some
person other than the
employer to pay
damages in respect
thereof. The workman
may take proceedings both
against that person
to recover such
damages and against
any person liable to
pay compensation under
the provisions of
this Ordinance to recover
such compensation; but
shall not, save
in the circumstances
described in subsection (2),
be entitled to
recover both such
damages and compensation.
(2) Notwithstanding anything contained
in subsection (1)
– (a) ……
(b) when a workman
has recovered compensation
under the provisions
of this Ordinance
in respect of an
injury caused under
circumstances creating a
legal liability in
some person other than
the employer to
pay damages in
respect thereof and
the amount of such
compensation is less
that the amount
of damages so
recoverable from such person
the workman shall
be entitled to
recover from such
person the difference between
such two amounts
….’ By setting
out the opposing
legislation it will be
clear that the
new legislation merely
affect a procedural
change rather than one
affecting the rights
of the claimant.
In these circumstances, I hold
that although the new
Act amending the
old Ordinance, did
not come into
effect until after
this accident, it
did come into
effect before these proceedings
were commenced. The general
principle seems to
be that alterations
in procedure are retrospective unless
there is some
good reason against
it. (Maxwell on STATUTES
11th Ed. pp.
216-220). The plaintiffs
were entitled to
avail themselves of the new
procedure. Accordingly the
admitted recovery of compensation
did not debar
the further suit
for damages.”
(5)
“The final question concerns
the quantum of
damages recoverable by the
dependency.” ….. “The
two girls were
his daughters living
in the deceased’s quarters provided
by the Railways
and the deceased’s
mother was living
with him and helping
to look after
the children. The
deceased’s mother Mariam
was a widow herself
and had but a small
shamba on which
to take out
an existence. It is
clear that she
looked to her
son to help
and support her
….. “The deceased spent about
Shs. 500/- per
month on his
family. This covered
their clothing and food
and no doubt
food for himself
when he was
at home”…… Deducting something for
the deceased’s own
keep, I find
that the dependency
figure is Shs. 400/-
per month. The
deduction would have
been greater if
the deceased were not
away on duty
as much as it appears
that he was.”
“I also hold
………. That the deceased
must be taken
to have been
46 years of
age, his mother
60 years of age,
and his elder
daughter about 10
years and the
younger about 4
years of age. As
such the deceased
had a working
life of some
further nine years
until he was 55
years of age,
the age of
compulsory retirement. The
deceased was reasonably efficient.
He was at
the top of
his grade when
he died and
was paid Shs. 835/-
per month. There
was no very
great chance of
further advancement. It meant
transferring to a
more senior branch.
There is no
evidence that the deceased.
Intended to do
that. It may
be that with
his considerable overture payments averaging
between Shs. 200/-
to Shs. 300/-,
he was content
to stay where he
was. I shall
take his average
monthly earning at
Shs. 1,100/- to be
constant. From this
it will be
seen that Mariam’s
claim could easily
be met, as well
as keep up
his payments to
the Provident Fund
and other accessory disbursements. After
his retirement the
deceased would still
be able to
support his family as
the evidence concerning
his Provident Fund
show; but these
would be some decrease
in quantum. While
therefore Mariam could
expect to be supported
during her lifetime,
while the deceased
would probably remain
at work, the girls
would look to
their father after
his retirement. The
period left of
working with the Railways
can be considered
as only a
part of the
period in which
the deceased’s dependents would
look on him. Therefore
making some reduction
for capitalizing the dependency
I would award
the sum of
Shs. 36,000/- it
is now necessary to
consider the deduction
By virtue of
section 23 of
the Workmen’s Compensation Ordinance
Shs. 24,000/- has
to be deducted.
The question is whether
the gratuity has
to be deducted
as well. As
the evidence shows
it is a discretionary payment,
but I imagine
that that discretion
involved is not
so much whether or
no to pay,
as to whether
to withhold payment
which is normally
paid for some disciplinary
reason. It is
payable on death
or termination of employment. As
such I think
it must be
deducted. It was
Shs. 8,990/-. After deductions the
balance is Shs.
3,010/-. I apportion
this as to
Shs. 1,500/- to Mariam
the deceased’s mother,
and Shs. 755/-
each to the
deceased’s two daughters.”
OKECHI V MOWLEM CONSTRUCTION CO LTD
[1971] 1 EA 28
FACTS
The plaintiff, a 22 year old
builder’s labourer, lost his right hand, wrist and two inches
of his forearm. He would not be able to work again.
He earned Shs. 96/-
a month net. The court was asked to
assess damages.
HELD
(i) For loss
of earnings he would be awarded Shs. 20,000/-, based on a multiplier of
20, less an allowance for immediate payment;
(ii) For loss of his limb, pain and
suffering and loss of amenities of life
he would be
awarded Shs. 75,000/-.
Judgment for the plaintiff for Shs.
95,000/-.
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