By Faustine Kapama-Judiciary
THE Court of Appeal has ordered determination on
merits the application for execution lodged by former Tazama Pipe Line Limited employee
Hassan Twaib Ngonyani before District Court of Morogoro, demanding additional
payments of about 200m/- as subsistence allowances.
Justices Mwanaisha Kwariko, Issa Maige and Abrahaman
Mwampashi ruled in favour of Mr Ngonyani, whose employment was terminated after
being nominated a parliamentary candidate in 2005 General Elections, after
allowing his appeal he lodged to fault findings of the High Court’s Labour
Division.
In its ruling, the High Court had concurred with the
magistrate that, since it was not express in the Reconciliation Board decision that
Mr Ngonyani, the appellant, was entitled to subsistence allowance, how much and
to what extent, the claim sought did not fall within the jurisdiction of an
executing court.
However, in a judgment delivered in Dar es Salaam
recently, the justices of the appeals court, currently the highest temple of
justice in Tanzania, quashed and set aside both the decision of the High Court
on revision and the decision of the executing court on execution.
“We find the appeal with merit and we allow it. We
remit the file to the executing court for determination of the application on
merit. It being employment matter, we make no order as to costs,” they ruled.
The justices pointed out that since under item 8(1)
of the Third Schedule to the Employment Labour Relations Act (ELRA) read
together with section 103 (1) thereof, any reference concerning summary
dismissal under the repealed laws should be dealt with as if the same had not
been repealed.
During hearing of the appeal, the counsel for the
appellant had attacked the decision of the High Court, contending, among
others, that the High Court erred in holding that the executing court has no
power to investigate on questions arising from execution, discharge and
satisfaction of the decree.
Deliberating the matter, the justices noted that the
decision of the executing court as confirmed by the High Court on revision was
based on the proposition that, the amount of subsistence allowance, which is 83,750
US dollars, sought to be realized was not expressly decreed in the decision of
the Board.
They, in principle, agreed with the counsel for the
employer that, an executing court has no jurisdiction to execute what is beyond
the decree and that the claim as to subsistence allowance was not express in
the decision of the Board.
The justices said that what was express in the decision
was that the appellant should be paid all his terminal benefits in accordance
with the law and voluntary agreement relevant to his services and the decision
of the Board was silent on what amounts to the said terminal benefits.
“That being a case, we do not think that, the High
Court Judge was right in holding that the application for execution was beyond
the decree for the mere reason that, the claim was not express. We have (……)
reasons to rationalize our decision,” they said.
One of the reasons the justices gave was that under
section 28 (2) of the Security of Employment Act (SEA), the power of executing
court to execute the payment of money where, like in the instant case, a
dismissal is ordered to take effect as termination of employment, is not
limited to an express decision.
“It extends to decisions which require such payment
by implication. The Board, in its decision, decreed that the appellant be paid
all his terminal benefits according to the laws and voluntary agreement
relating to his employment. It did not specify items of terminal benefits,”
they said.
According to the justices, it was obviously,
therefore, that what should be paid to the appellant as terminal benefits was
implied by law and voluntary agreement.
They said that to give effect to the decree, the
executing court was bound to construe the decree in line with the employment
laws and voluntary agreement and in so doing it could not be said to have gone
beyond the terms of the decree.
Another reason given was that under section 38(1) of
the Civil Procedure Code (CPC), the executing court enjoys exclusive
jurisdiction to deal with any questions relating to execution, discharge and
satisfaction of the decree.
The justices said that where the resolution of any
of the questions requires ascertainment of controversial factual issues, the
executing court is entitled, under section 38(2) of the CPC even to convert
execution proceedings into a suit.
“In our view, therefore, in so long as the claim is
captured by the decree, whether expressly or constructively, it is within the
power of the executing court to compute the same,” they said.
In the 2005 General Elections, the appellant
contested for membership of Parliament for Namtumbo Constituency and was, on August
21, 2005, declared by the National Electoral Commission, as one among the
candidates contesting for the respective parliamentary seat.
On the same
day, the appellant was summarily dismissed for the reason of absence without
leave. On reference to the Board, in terms of section 40 (1) (a) of SEA, the
summary dismissal in question was held to be inappropriate. Then, his employer
paid him 26,385,953/05 being his entire due terminal benefits.
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