e IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT MWANZA

LABOUR REVISION NO 85 OF 2019

(Originating From Execution No. 14 of 2018)

NMB BANK PLC APPLICANT

VERSUS

SARAH RICHARD HAMZA RESPONDENT

RULING

04 & 20/03/2020

RUMANYIKA, J.:

Supported by affidavit of Neema Kisha Biyengo, the application is for

revision cum reference with respect to decision of the Taxing/ Executing

officer (O.H. Kingwele, Deputy Registrar) of 21/8/2019. It is brought

under Rules 24 (1) (2) (a)- (e) and 55 (1) and (2) of the Labour court

Rules, GN. No. 106/2007.

Mr. Antipas S. learned counsel appeared for NMB PLC (the

applicants) Sarah Richard Hamza (the respondent) appeared in person.

Upon adopting contents of the supporting affidavit, Mr. Antipas

learned counsel had three (3) points and submitted; (a) that with

regard to the issues of 12 month salary compensation and other terminal

dues, very unfortunately the executing officer improperly interpreted

the court's decision and orders of 31/10/2018 inclusive of reinstatement, 1

twelve (12) month salary compensation, transport and housing

® allowances. That the Deputy Registrar for that purposes was not part of

the High Court. That only this court was vested with powers to interpreted

its decisions (Section 50 of the Labour disputes institutions Act No 7 of

2014 (Case of Serenity on the Lake Ltd V. Dorcus Martin Nyanda, Civil Revision No 1 of 2019 (CA) - Unreported. (2) that on the issue of

allowances, not only the Deputy registrar's orders were on the record

strange, but also now that the respondent was no longer in service the

latter wasn't entitled to the allowances which in the first place were not

statutory by nature but it was payable only to on duty employees (case of

Pius Sangali & others V. Tanzania Pot Land Cement Co. Limited, Civil Appeal No 100 of 2001 (CA) unreported. (3) that now that the

Deputy Registrar was not certain on the actual sum payable, he shouldn't

have relied on the respondent's computation. Instead, the Deputy

Registrar should have sent the record back to the CMA for actual

calculations (Case of Dr. Maimuna Mrisho V. Tanzania Ports Authority, Revision No 852 of 2018 High court, Dar es salaam

(unreported). Instead, the respondent was paid shs. 88,519,352/= being

severance, annual leave and end of the year's leave allowances, 12

month salary compensation and salary from the date of termination i.e

November, 2018. That yet again the respondent came up with another

unfounded claims of shs. 37,069,849.88 out of which the Deputy

Registrar awarded her shs. 32,998,454.31. That at no point in time this

court had stated the exact sum payable. That very unfortunately the

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Deputy Registrar awarded her allowance even for the period the

respondent had been terminated.

Mr. Antipas learned counsel further submitted that remedies under

Section 40 (1) (a) (c) were not awardable simultaneously. One could not

be reinstated, re- engaged and compensated or something at the same

time (Case of NMB V. VICTOR MODEST BANDA, Civil Appeal No. 29 of

2018 (CA) at Tanga (unreported). That

The respondent submitted that there was nothing to fault the Deputy

Registrar as the latter had a duty to and he only complied with decision

and orders of his court. That the deductions made by the applicants were

unjustified and uncalled for. That is all.

The issue is whether the Deputy Registrar's decision was improperly

made and therefore subject of revision. I entertain no doubts that with

respect to the court's powers to interpret its orders/decision with intents

and purposes the Deputy Registrar was no part of it (the case of Serenity on the Lake Limited (supra). With respect to the actual sum payable,

both the respondent and the Deputy Registrar may have been on cross

roads. Much as for some reasons having reversed the CMA's decision on

31/10/2018 this court did not state exact figure of the money payable;

" ... The applicants to pay the respondent as at the time it

stood, compensation of twelve (12) months salaries and

all the dues .... "

Just like the Arbitrator had held and ordered on

20/6/2016:-

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e ..... the respondent to reinstate the complainant back to

her .... Employment without loss of remuneration. In

alternative, if the respondent ( employer) do not wish to reinstate the applicant may invoke Section 40 (3) of the ELRA No. 6/2004 by paying compensation of twelve months wags in addition to wages due and other benefits ...

From its inception therefore, it was intended that end of the day the

CMA compute and establish the actual sum payable. It is very unfortunate

that with greatest respect on that one the Deputy Registrar and

respondent usurped duty and powers of the CMA. The respondent may

have been underpaid or even the applicant skipped some items yes! But for

the limited powers of the Deputy Registrar. As argued, correctly so by Mr

Antipas advocate to make it more worse, the Deputy Registrar awarded her

some extras!:-

.... The expression all dues is to my understanding that

the applicant was to be paid all entitlements as if she was still an employee. That means the leave

allowances transport and housing allowance ...

Not only the Deputy Registrar assumed powers of and he translated

the court's decision, but also very unfortunately on that one he "overruled"

the court.

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In the upshot, the purported decision and orders of the Deputy

Registrar are hereby quashed and set aside respectively. The records are,

with immediate dispatch remitted to the CMA ( only with reference to the

court's order of 31/10/2018).With a view to the CMA computing and

establishing the exact sum payable. For avoidance of doubts should it

happen that the respondent was underpaid or, as the case may be

overpaid, she shall be entitled to immediately get it or payback the

difference. The application is granted in its entirety. It is ordered

accordingly.

Right of revision explained.

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Delivered under my hand and seal of the court in chambers. This

20/3/2020 in the presence of Mr. Mshongi learned counsel for Paschal

Kamala Advocate.

F. H. MAHIMBALI ALa», 'DEPUTY REGISTRAR

20/03/2020

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