beatrice masatu vs africa risk management services 2021 tzhcld 357 27 august 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 349 OF 2020 (ARISING FROM LABOUR DISPUTE NO. CMA/DSM/KIN/R.860/17/886 BEATRICE MASATU.............................................. APPLICANT VERSUS AFRICA RISK MANAGEMENT SERVICES............. RESPONDENT 12th & 27th August 2021 ACK, Rwizile, J The applicant applied for revision of the decision of the of the CMA dated 30th April 2020. It is apparent that the applicant had a labour dispute with the respondent, it was slated as Ref. No. CMA/DSM/KIN/R.860/17/866 which was dismissed for want of prosecution on 14th September 2018. Her efforts to restore the same failed, since her application now impugned was dismissed on 30th April 2020. This application therefore is to revise the said dismissal order of her attempt to reinstate the said application. It is therefore filed by a chamber summons supported by an affidavit of A the applicant stating grounds for which this application should be i granted, in essence, the court is asked to determine the following points; 1. This honorable Court be pleased to call for the records of the proceedings and order of the Commission for Mediation Arbitration of Dar es salaam in Labour Dispute No. CMA/DSM/KIN/R.860/17/866 delivered by Hon. Mpapasingo, B. Arbitrator, on 3&h day of April, 2020. 2. Any other order(s) and/or reliefs it may fit and just to grant. The record shows, the respondent was served and filed a notice of opposition. Along with it, filed a notice of preliminary objection, it is Ik M unfortunate that after upon filing the same, the respondent never appeared again. When this application appeared for hearing, the preliminary objection raised were not prosecuted. I decided to dismiss Wfe. J® them for want of prosecution and proceeded to hear the main application exparte. The applicant who appeared in person argued her application orally. She submitted that her main application was dismissed because her advocate was absent because he had been bereaved and went to the funeral. She was of the view that, it was sufficient cause for the absence 2 and therefore the mediator ought to have restored the application, she went on saying, the authorities used to dismiss the case ought to have been considered because that is they were relevant. She did not unfortunately state what were those authorities. She was of the submission further that her case was to be restored because even the other party was not attending the case at the CMA. Lastly, she submitted that the she was to be informed that her advocate was absent before the case was dismissed for herself to appear. On her party, it was submitted that the application underwent several s s’ adjournments and could not be heard. She therefore asked this court to allow the application and so let her case be heard on merit. In law, an application for restoration or reinstatement of a dismissed matter, can only succeed when and only when the applicant has shown W, J sufficient cause to the satisfaction of the court that none appearance was due to matters out of the applicant's ability to prevent. This must be proved by the applicant. The matter at hand, was dismissed before the CMA for want of prosecution. The trial mediator was of the view that since the reasons 3 for none appearance of the applicant was due to undisclosed reasons, then there were no sufficient cause warranting reinstatement. The applicant's reasoning is that since her advocate did not go to court and she was not informed of his absence this court has to find that it was not her fault for the same to happen. She therefore prayed for grant of the application. As I have hinted before, the applicant has appeared unrepresented. She previously had the service of the lawyer &when she commenced proceedings at the commission. It is clear from the record that the applicant was condemned due to the errors committed by her lawyer who apparently is not present to stand for her in this matter. X. But the record shows, the day before the matter was dismissed for their none appearance, both, the applicant and her counsel were present. Having considered applicant's submission, CMA record this Court is called upon to determine the following issue; - i) Whether the applicant provided sufficient reasons for setting aside dismissal order. 4 The relevant law for determination of the issue is Rule 28(l)(a) of the Labour Institutions (Mediation and Arbitration Guidelines) G.N No. 67 of 2004. The respective rule reads as follows, hereunder: - "28 (1) when a party fails to attend an arbitration hearing, an Arbitrator may do the following; - (a) where a party who referred the dispute to the Commission fails to attend the hearing the arbitrator may dismiss the matter or postpone the hearing." Having gone through the record it shows that the applicant failed to appear before CMA three times including the date of hearing which was on 10th September 2018. It is an established principle that for the matter to be restored, the applicant must show good cause for non­ appearance. Equally in recent decision of this court Labour Revision Application No. 355 of 2018 Shirika la Usafiri Dar es Salaam Ltd vs. Abbas Kingwamba & others it was held that: - "I am aware of the principle of natural justice that demand parties to be given right to be heard, but such rights have to go along with each parties' obligations. Parties who do not appear on a date fixed for hearing having notice, jeopardize his/her valued rights of being heard. Court cannot wait for a party to attend hearing, as he/she pleases. Otherwise, court 5 will be accountable for delaying proceedings at the detriment of the parties' rights." On the same case on the last paragraph this court held that: - "According to the records, there is no any information as to why applicant counsel was absent on 15th June, 2020. It is my sincere conviction that, party to the suit who delays proceedings is a dog to the wheels of Justice. This court cannot allow that to happen. Without much ado, Labour Revision application No. 355/2018 is dismissed for want of prosecution." In such circumstance as the applicant alleged that her non- appearance was due to her Counsel who attend funeral without any supporting % evidence, I am of the view that the applicant failed to adduce good reasons/ causes for her non-appearance. In the event that the applicants counsel was absent, prudence demands that the applicant ’’B had to appear by herself. The court ought to be informed of what was the reason for none appearance of the learned advocate. This, forms and impression, and I so opine, that the applicant was rather sloppy in attending her case. 6 For the foregoing reasons, this application is devoid of merit and is hereby dismissed. The Commission arbitral award is upheld. An order for costs is declined. 7