Mkwawa J: This appeal arises out of the judgment and decree of the learned senior resident magistrate of the Court of the Resident Magistrate, Dar es Salaam at Kisutu. Before the lower court the appellant had inter alia filed claim for medical expenses, C depreciation allowance and tools box allowances. Those claims were dismissed by the lower court and being aggrieved with the said decision the appellant now appeals to this court.
It is common ground that the suit which gave rise to the instant appeal springs from the D decision of the Court of Appeal (Civ App No 36 of 1987) which invalidated the appellant's termination of employment. It is further common ground that consequent to the decision of the Court of Appeal the appellant was reinstated to his previous employment namely in the respondent's/defendant's company where he worked as a technical communicator. It is further not in dispute that the appellant by the virtue of his E position in office he was entitled to various allowances. He was thus entitled inter alia to allowances like `depreciation allowance, tools allowances and medical allowances.'
The trial court disallowed the depreciation and tools allowances solely on the ground that F during the period of his termination he was not in the employment of the respondent and he thus did not render any services to the respondent to warrant him to base the claims now before me. The appellant had put up a claim of Shs 49,130/= as his medical entitlement. The trial resident magistrate allowed Shs 15,000/= only and disallowed the G rest of the claim.
I feel constrained to mention right from the outset that there has been no cross-appeal from the respondent company. This being the state of affairs this court is only called upon to determine the appeal of the appellant/plaintiff and this is precisely what I will do H though I have my reservations and misgivings in that some of the claims that have been allowed by the trial court. But for the forementioned reasons I will refrain from making any further opinion on them as I have not been called upon to do so.
I The appellant in his memorandum of appeal takes the following grounds:
A `1. That the learned trial Senior Resident Magistrate erred in law in holding that I be paid Shs 15,000/= for medical expenses, and not the full amount as per the produced receipts.
2. That the learned trial Senior Resident Magistrate misdirected himself in not awarding me the depreciation allowance which was payable during leave period too. B
3. That the learned trial Senior Resident Magistrate misdirected himself in not awarding me the tools box allowance which was also payable during leave period.'
Before the lower court and in this court the appellant who appeared in person urged the C court to allow his claims on the following grounds:
As regards the medical claims the appellant has maintained in both courts that he was entitled to a refund of the expenses he had undergone principally on the basis that the medicines/drugs that he had purchased were not available in the clinics D authorised/approved by the respondent company.
I now turn to the other claims, namely the depreciation and tools allowances. Here the appellant contends that as the termination was unlawful and that he did not contribute to E the anomalous situation the employer is under obligation to pay him his allowances.
In rebuttal Mr Adamjee for the respondent company argued that generally the appellant can not be paid the allowances in question as at the relevant period he was not physically engaged in any official duties on behalf of the respondent/defendant. Coming to specifics, Mr Adamjee submitted as follows: F
The appellant could not demand to be refunded the expenses he incurred in meeting the medical bills because he did not follow the rules and procedures laid down by the G respondent company. Mr Adamjeesubmitted that a circular was issued by the respondent company to its management staff, giving names of approved medical organisations and institutions. The available evidence has amply shown that the appellant did not consult any of the approved organisations.
As regards the appellant's claim for depreciation allowance, Mr Adamjee submitted on H behalf of the respondent company that the claim was baseless because the use for the vehicle should be for `official company business'. It could not be argued that at the relevant period the appellant was using his vehicle for official company business as his services, during the relevant period, had been terminated. I
Last but not least Mr Adamjee addressed the court in respect of
the tools allowance. Here again, he submitted that the appellant was not there to use his A tools. He could not therefore lay any claim on the use of tools as he did not at all use them for the company's business. The crux of the matter is whether the appellant is entitled, in law, to be paid the allowances in question under the forementioned circumstances. B
I will begin with the medical claims. It is beyond dispute that the appellant failed to comply with the circular governing medical claims. I respectfully accept Mr Adamjee's submission that the appellant's claim cannot succeed. The appellant had shown total C disregard for the respondent company's instructions in respect of such claims. I have considerable difficulty in seeing how he should succeed on this ground. For the foregoing reasons this ground fails and it is accordingly so ordered.
I now turn to the depreciation allowance and the tools allowance which I shall deal with D collectively. It is not in dispute that the appellant did not work for the respondent at the time, he was terminated. Bearing this in mind it would be wrong to ask the respondent to pay the appellant the allowances he is now claiming. All things being equal this would amount to unjust enrichment by the appellant. E
On the other hand it has been argued by the appellant that he did not contribute to this anomalous situation. He was in this case ready and willing to work for the respondent but, as the evidence amply demonstrated, the respondent would not let him work. Admittedly an allowance is not a salary. But, it is common knowledge that allowances F are paid out to employees to augument the otherwise low statutory salaries. In the instant matter the lower court has allowed the appellant's claim for the unpaid salaries during the material period and as I had indicated much earlier on the respondent has not cross-appealed to challenge the said decision which I must say is sound in law. G
As it was held in the case of Measure Brothers v Measures (1), which was quoted with approval by this court by Mnzavas JK (as he then was) in the case of Tanzania Harbours Authority v Wendelin Ludger (2), that: H
`it is elementary justice that one of the parties to a contract shall not get rid of his responsibilities there under by disabling the other contractor from fulfilling his part of the bargain'.
In the instant matter the respondent company wrongly terminated the appellant from I work. Can he now turn round and say
that the appellant is not entitled to what he would have received had he been in A employment. I do not hesitate to answer in the negative. Once there is an order for reinstatement the employee is entitled to all his rights as the contract of employment has revived with all its incidents. This appears to be the principle enunciated in Wendelin's case (supra). In my view to hold otherwise would make neither equity, justice or even B sense.
For the foregoing reasons these two grounds of appeal succeed and it is accordingly ordered so.
The appellant is to have his costs of this court and that below. C
D