Court name
High Court of Tanzania

Twikasyege Mwaigombe vs Mbeya Regional Trading Co Ltd () [1988] TZHC 40 (02 December 1988);

Law report citations
1988 TLR 237 (TZHC)
Media neutral citation
[1988] TZHC 40
Coram
Mroso, J.

  F Mroso, J.: The plaintiff was employed by the Regional Trading Company, Mbeya as an asssitant accountant, with effect from 13th May, 1977 according to a letter of appointment which was tendered by him in evidence. He was confirmed in his employment on permanent and pensionable terms with effect from 14th November, 1977 (See Exhibit P2 dated 21/5/78), and not on 31st May, 1978 as stated by him in his evidence. His services were   G terminated on 20th August, 1985 in terms of section 40A of the Security of Employment Act, No. 62 of 1964, as amended by Act No. 1 of 1975. I assume it was meant that he was terminated under the provisions of section 40A   H (5) of the Security of Employment Act, 1964. This was after the minister responsible for Labour had earlier ordered his reinstatement under section 40A(3) of the same Act.
He was paid the net salary for 12 months, the statutory compensation, one month's salary in lieu of notice, cash   I payment in lieu of arrears of leave - 14 days for 1983, 28 days for 1984 and 28 days for 1985. He was also paid railway bus fare for him and his family to his home district in Kyela and transportation of his personal

baggage not exceeding 1500 kgs. Despite those payments he has filed a suit in this court against his former  A employers claiming:
   "(a)The sum equivalent to the amount of salary that would have accrued to (him) until the expiry of the contract at the compulsory retirement after attaining 55 years of age for the next 10 years which is shs. 316,800/=.  B
   (b)Parastatal Pension Funds contributed by employer
11,148.70
327,948.70  C
   (c)Salary changes and errears from 20/8/85 upto date interest and costs of the suit.
Two issues arise. The first is whether there existed a contract of service between the plaintiff and the defendant for  D the defendant to continue to employ the plaintiff until he reached the age of compulsory retirement at 55 years. Second, whether the plaintiff was entitled to be paid 10 years anticipated employer's contribution towards the Parastatal Pension Fund.  E
It is not disputed that the letter of appointment - Exhibit P1 - stipulates some of the terms of the contract of employment. I say "some of the terms of service including leave and medical attention will be in accordance with the Company's regulations, as amended from time to time by circular instructions. I may add that since the defendant  F company is a parastatal organisation, the parties were also subject to relevant SCOPO Directives as well as any relevant statutory provisions.
One of the terms of employment stipulated in the letter of appointment is that after confirmation of appointment either  G side was entitled to terminate the appointment by giving the other side three months notice, or payment of one month's salary in lieu of notice. In terminating the plaintiff's employment the defendant paid the plaintiff one month's salary in lieu of three month's notice, in confirmity to one of the terms of the contract of employment. Furthermore,  H although the Minister responsible for Labour ordered the reinstatement of the plaintiff, the defendant company exercised an option allowed it by Statute - section 40A(5) of the Security of Employment Act, 1964 as amended by Act No. 1 of 1975, to refuse to take back the plaintiff, and paid the statutory compensation.  I

  A The plaintiff urges that there must be read into his contract of employment with the defendant company an implied term that he was to be employed until he reached the age of 55 years. He cited section 73 of the Law of Contract Ordinance as authority that he is entitled to payment of anticipated salaries for ten years. This is the period between   B the age at which he was terminated, which was 45 years, and the age of 55 years at which he would have been compulsorily retired. Let me now discuss briefly whether, in fact, the defendant company had contracted expressly or impliedly, to employ the plaintiff until he attained the age of 55 years.
  C I have already referred to the express term of employment in the letter of appointment in which it was stated that either party to the contract could terminate the appointment by giving requisite notice or payment in lieu. I have also referred to section 40A(5) of the Security of Employment Act, 1964, as amended by Act No. 1 of 1975, which   D imposes certain onerous obligations on an employer who, despite a ministerial order to reinstate an employee who has been dismissed or terminated, refuses to comply with the order. Those two situations give the employer valid means of effectively terminating the employment of an employee.
  E For an employee to be able to sue successfully for damages for premature termination of employment he has to prove either that he was employed for life or for a period terminating on reaching the age of compulsory retirement. Such terms cannot be implied but must be express. As I did in the case of Mbeya Regional Trading Company Ltd   F v Byamungu F. Matoka ((DC) CIVIL APPEAL NO. 11 OF 1987) unreported, let me quote from Halsbury's Laws of England, 3rd Edition, Vol. 25 at page 520 the following words which I think are also relevant in the case at hand.
  G To entitle a servant to sue for damages two conditions must be fulfilled namely:
   (1)   unless the contract of service is to be construed as a contract of life employment, or as excluding any general power of dismissal on notice the servant must have been engaged for a period fixed or   H determinable upon notice, and dismissed before the expiration of the period if fixed, or without requisite notice, as the case may be;
   (2)   his dismissal must have been wrongful, that is to say, without just cause or excuse on the part of the   I master.

In this case I was not referred to any term of the contract of the plaintiff's employment until he reached the age of 55  A years. Also, although the termination might have been wrongful initially, subsequently the defendant company utilised a statutory option in refusing to reinstate him and it had to fulfil near punitive conditions such as the statutory compensation.  B
Secton 73 of the law of Contract Ordinance, Cap. 433 relied on by the plaintiff does not import into his contract of employment an implied term that he would be employed until he reached the age of compulsory retirement at 55 years. The section relates to compensation for loss or damage caused by breach of contract. The compensation is  C payable for loss or damage which arises naturally "in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it". As already mentioned, the contract of employment between the parties anticipated that at any time either side may terminate the contract by  D giving three months notice or payment of one month's salary in place of notice. The plaintiff too could also have left his employment by giving requisite notice or payment in lieu. The defendant would not be entitled to sue him for damages because he had not been working for it up the age of compulsory retirement.  E
The second issue is based on the assumption rejected above that there was an implied term in the contract of employment that the plaintiff would be employed by the defendant company until he reached the age of compulsory retirement. Since the plaintiff is not entitled to 10 (ten) years anticipated salaries up to the age of 55 years, equally he  F cannot be entitled to the employer's anticipated contribution to the Parastatal Pension Fund, as claimed.
Before I end this judgment let me comment in passing on the implications of the plaintiff having been offered  G permanent and pensionable employment by the defendant company.
There is sometimes a misconception that where a person is offered employment on permanent and pensionable terms then that he must be employed for life and must be paid a pension.
Employment is permanent only in the sense that it is not on temporary terms. In saying this I recall the words of Lord  H Goddard in the case of McClelland v Northern Ireland General Health Services Board[1957] 2 All E.R. 129
   That an advertisement offers a permanent employment does not in my opinion, mean thereby that employment for life is   I

  A    offered. It is an offer, I think, of general as distinct from merely temporary employment, that is, that the person employed would be on the general staff with an expectation that apart from misconduct or inability to perform the duties of his office the employment would continue for an indefinite period. But apart from a special condition, in my opinion, a general employment   B is always liable to be determined by reasonable notice.
   Nor do I think that because a person is offered pensionable emloyment the employer thereby necessarily engages to retain   C the employee in his service long enough to enable him earn a pension.
I am unable, therefore, to follow the ex-parte decision of Mapigano, J. cited to me: Elikana P. Makene v   D TAZARA, High Court (Dsm) Civil Case No. 38/1983 (Unreported). In that case the learned judge held that because the employment was permanent and pensionable and the plaintiff had been terminated from his employment eight years "before the expiry of the maximum period stipulated in the contract" there had been a breach of contract   E entitling the plaintiff to damages in the form of monthly salary for all the eight years which he would have worked, had he not been prematurely terminated in his employment. Apparently, according to the plaintiff's contract of employment in that case he was to remain in the employment of the defendant company until he attained the age of   F sixty years when he would retire with full pension benefits. The case which is before me is different because there was no such term in the contract of servicce. Besides, the case before Mapigano, J. wa, as already mentioned, heard and decided ex-parte.
  G For the above reasons, I find that the plaintiff had failed to prove his claims which must be dismissed with costs.
Claims dismissed.

  A