Chairman, Nyabioyonza Rural Cooperative Society Ltd vs Cosmas Rumanyika ()  TZHC 18 (01 August 1986);
A Mwalusanya, J.: The appellant, the Nyabioyonza Rural Primary Cooperative Society Ltd., was successfully sued by the respondent Cosmas s/o Rumanyika at Bukoba R.M.'s Court in a claim of Shs. 18,200/= being arrears of half-salary for the period the respondent was interdicted from service starting from 12/6/1980 to the time of B filing the suit on 16/10/1984. In its written statement of defence the appellant cooperative society has denied that the respondent had been its employee.
The respondent's case at the trial was that on 1/6/1976 he was employed by the Nyabioyonza Farmers Cooperative C Society Ltd. as a Secretary. This cooperative society was allegedly formed by some 13 villages close to Nyabioyonza village in Karagwe District, Kagera Region. It was not long when the aforesaid cooperative society, alongside with other cooperative societies in the country, was dissolved by the government vide GN. 1137 of 1976. The liquidators were D appointed by the government to look after the interests of the employees as well as settling the assets and debts of the defunct cooperative societies. With the demise of the cooperative societies there was a temporary vacuum as to who would handle the peasants' crop for sale to the marketing boards.
E However in due course the problem was solved. There existed villages which were registered under The Villages and Ujamaa Villages (Registration, Designation and Administration) Act No. 21 of 1975. Now some crop marketing boards like Coffee Authority of Tanzania, Tanzania Cotton Authority and National Milling Corporation appointed some of the F registered villages to undertake the duty of crop-buying from the farmers. In the case at hand some 13 registered villages which had earlier comprised the defunct Nyabioyonza Farmers Cooperative Society were appointed agents for buying crops from the farmers by the aforesaid marketing boards. The services of the respondent were retained at a salary of G Shs.700/=. In the course of time the villages which employed the respondent dwindled from 13 villages to five villages - namely Ahakishaka, Nyabioyonza, Bukangaza, Kijumbura and Chamchuzi. On 12/6/1980 the accused was interdicted from employment when he was charged in court for theft of money from his employer vide Karagwe Criminal Case No. H 204/80 (it was later withdrawn and now it is Karagwe Criminal Case No. 64/1984). That case is still pending.
Then came the enactment of the Cooperative Societies Act No. 14 of 1982. By virtue of s. 29(1)(f) of that statute, rural cooperative societies may be formed for the purpose of collecting agricultural products from its members and to deliver I those products
A for sale to the marketing boards. Pursuant to that statute on 5/12/1983 the appellant society, was duly registered as a cooperative society vide registration No. 3584. It was submitted by the respondent that this new cooperative society known as Nyabioyonza Rural Cooperative Society Ltd. comprised all or almost all of the 13 villages which had formed B the cooperative society which was dissolved in 1976. So the respondent submitted that he was in fact in a continuous employment by the same employer from 1/6/1976 to this day. However counsel for the appellant cooperative society Mr. Kahangwa argued that the members of the appellant cooperative society are individual human beings and not villages C vide s. 24 of Act No. 14/1982. And so it was Kahangwa's submission that respondent had not been employed by the same employer but by three distinct employers since 1/6/1976,
Be that as it may, it was the respondent's case at the trial that by virtue of s. 29 of the Security of Employment Act Cap. D 574 (as amended by s. 17 of Act No. 1/1975), he was entitled as of right to half salary from his employer from the day of his interdiction. And he argued that the appellant is his present employer who is liable because he has taken over all the liabilities and assets of the registered villages which had employed him after the dissolution of the former cooperative E society.
The learned trial Resident Magistrate capitulated to that argument of the respondent and held that the appellant cooperative society was indeed liable because under s. 181(g) of the Cooperative Societies Act No. 14/1982, it took over all the assets and liabilities of the former cooperative society. At the hearing of this appeal the respondent conceded F that the trial magistrate was wrong to invoke s. 181(g) because it only talks of inheriting immovable property of the former cooperative societies but not all assets and liabilities. So the judgment of the trial court cannot be supported. G
Undaunted the respondent submitted at the hearing of the appeal as did his counsel Mr. Katabalwa at the trial that s. 181(e) of the Cooperative Societies Act No. 14/1982 holds the new rural cooperative societies liable as they inherit all the employees of the former cooperative societies. This s. 181(e) reads: H
Notwithstanding the provision of s. 180 (which repeals the Cooperative Societies Act No. 27 of 1968), all orders, directions, appointments and other acts and things lawfully made or done under any of the provisions of the Act and in force immediately Ibefore the commencement of this Act shall be
A deemed to have been made or done under the corresponding provisions of this Act and shall continue to have effect accordingly.
As the emphasized words clearly indicate, the appointments which have been saved are only those which were made B under the Cooperative Societies Act No. 27 of 1968. But as amply demonstrated above the appointment of the respondent was not under Act No. 27 of 1968 but under Act No. 21 of 1975, which allowed the formation of registered C villages. And s. 5 of the Muungano wa Vyama vya Ushirika Act No. 9 of 1979 clearly stipulates that registered villages are deemed to be cooperative societies not under the Cooperative Societies Act No. 27 of 1968 but under s. 13 of Act No. 21 of 1975. And in any case I have serious misgivings as to whether the appointments mentioned in s. 181 (e) of D Act No. 14/1982 include employees of the various cooperative societies formed under Act No. 27 of 1968. The most reasonable interpretation would appear to be that the appointments envisaged are only those specifically spelled out by the statute in its provisions e.g. Secretary-General, Registrar, Deputy Registrar, Assistant Registrars, etc. That sufficiently E disposes of the respondent's argument that he was in fact an employee of the appellant cooperative society.
Then the respondent had another arrow in his armoury and he contended that his employment must be taken to be under the cooperative Societies Act No. 27 of 1968 because he was in 'continuous employment' from 1976 to this day. In F fact the Labour officer Mr. Hamisi s/o Mrimi (PW 3) supported him at the trial on that line whereof he cited s. 8A(i)(d) of the Severance Allowance Act No. 81/1962 (Cap. 487), which he said recognised 'continuous employments' of the kind G the respondent had found himself in. However I note that the contention is misconceived. In fact the relevant section is s. 8A (3) which states that where an employee ceases to be in the employment of one employer and enters or is deemed to enter the employment of another employer who takes over the business, the employment of that employee shall be H deemed to be continuous employment by one employer and the last employer will be that one employer who will be liable for the severance allowance demanded.
The short answer to this contention is that the Severance Allowance Act does not lay a general rule as to when an employment can be said to be continuous or not. That provision pertains to the I
A claims of severance allowance only. And in any case the section in question says that the employment shall be deemed to be continuous and not that the employment is in fact continuous. That statute clearly recognizes the naked fact that in the circumstances obtaining here, the employment is not in fact continuous or automatic and hence its use of the word B 'deemed' for the purpose of claims of severance allowance only.
Therefore in my considered opinion, at no time was the respondent an employee of the appellant cooperative society. Let it be noted that the appellant cooperative society is quite distinct from the former respondent's employer (the 13 C registered villages) because its membership is drawn from individual members and not from registered villages. The remedy of the respondent lies in suing the 13 registered villages jointly or severally, because these were his employers. The appellant cooperative society (this time uncooperative society) was not his employer. Therefore this appeal is allowed with costs. D