board of trustees of national social security fund vs george thomas muhando 2021 tzhcld 2099 26 november 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEIUS APPLICATION NO. 213 OF 2020 BETWEEN BOARD OF TRUSTEE OF THE NATIONAL SOCIAL SECURITY FUND.................................................... APPLICANT GEORGE THOMAS MHANDI RESPONDENT RULING Date of last order: 10/9/2021 Date of Ruling B.E.K.Mg ga, J (Tj On 10th May 2020, applicant filecrthis application seeking the court to set asice the dismissaU^der of revision application No. 318 of 2019 made on 23rd April 2020 Bk this court (Hon. S.A.N. Wambura, J as she then was). The^applicant filed the notice of application supported by an affidavit of tuciana Kagimbo, her principal officer. In the affidavit, the deponenWeponed that on 23rd April 2020, when the matter was X/ scheduled for hearing, the advocate for the applicant while on road coming to the court suddenly fell sick and was rushed to hospital due to serious heart attack (angina) and that on the way to the hospital, the advocate for the applicant called counsel for the respondent but his phone was not reachable. That after failure of that attempt, one Ado i Mwasongwe advocate was sent to court to rescue the situation but he didn't manage to arrive at court on time as Jangwani bridge was blocked by Traffic Police due to heavy rain and flood that occurred at the area around 11:30 am to 3 pm. The respondent filed the notice of opposition together wijh a HZ? counter affidavit of Daniel Haule Ngugi, his advocatefTn^thexjcounter affidavit, Mr. Ngugi deponed that applicant has failed to advance sufficient grounds as she had many advocafes^and further that the <\ V affidavit of Mr. Ado Mwasongwe is missing. In his written submission^onxbetialf of the applicant, Mr. Opiyo Marcellus, advocate, submitted that<on 23rd April 2020, while he was on the way to court, he sildder^ly fell sick due to serious heart attack and that he was rushecKtowspital for treatment. He referred the court to medical examrationxreport annexture 3 issued on 23rd April 2020 by Shree HinSu>M‘^ndal Hospital indicating an abnormal ECG. That, on 15th ApriN2Q20 he was also examined at Eden Medical clinic for the same problem as indicated in medical examination report part of annexture 3 issued by Eden Medical Clinic. Counsel submitted that parties were in discussion! on how to settle the matter out of court and that non restoration will affect that settlement. 2 In his written submissions, Mr. Ngugi counsel for the respondent submitted that, there is negligence on part of the applicant as the diagnosis referred to are dated 15th April 2020 and 19th March 2020. Counsel argued further that applicant has a full-fledged legal department having more than one advocate and that knew in advance • ! o that the advocate had health problem therefore was supposed to;assign l X the matteij to another advocate. On what is alleged to have happened to Mr. Ado Ijlwasongwe advocate, counsel sub^tted^that, the same is hearsay diie to absence of Mr. Mwasongw^^idavit. Counsel cited the case of Sabena Technics Dar Lirnited vs, Michael J. Luwunzu, CM! Application No, 451/18 of2020, CAT (unreported) wherein it was held that an affidavitfwhich mentions another person is hearsay (ears as well. I have xrarefully/examined the affidavit and counter affidavit filed KO by the parties^nd arguments of both counsels on whether there are <\ ° goocKreasons advanced for restoration of revision application No. 318 of 2019. In other words, whether there is good cause shown by the applicant for non- appearance on 23rd April 2020 when the said revision application was scheduled for hearing. 3 In the foremost, I should point that there is no affidavit of Mr. Ado Mwasongwe, advocate, who it was deponed that he was asked to appear in court after the advocate who was in his way to court fell sick and that the said Ado Mwasongwe was blocked by traffic Police at Jangwani bridge due to floods. In absence of the affidavit of Mr. # o Mwasongwe, that fact remains to be hearsay as it was^hjeM^n\the case of Sabena Technics, supra, and correctly submitted ^counsel for the respondent. I will not therefore take into consideration all facts relating to Ado Mwasongwe advocate in this ruling. Counsel for applicant has^submitted that he was prevented to appear on that date due to sudden? heart attack and was rushed to hospital. Counsel for the respondent has submitted that the applicant was negligent as^(i)xknew in advance that the counsel who was 1 o appearingAin^court^yyas sick as there were records, as such, applicant was supposecKto choose another advocate from her office who is with healthier condition and (ii) medical reports submitted relates to 15th April 2020 and 19th March 2020 and not 23rd April 2020. Let me start with submissions relating to dates on medical reports. I have carefully examined medical reports annexed to the affidavit in support ofi the application and find that it is not true that they only relate 4 to 15th April 2020 and 19th March 2020. These reports show that on 19th March 2020, Opiyo G. Marcellus attended at Eden Medical Clinic and that on 15th April 2020 he attended at Shree Hindu Mandal Hospital and was excused from duty for three days. The annexetures to the affidavit shows further that, on 23rd April 2020, he attended at Shree Hindu Mandal Hospital where he was attended by DR. Ramaahani Selemani. He was examined and found that there was abnormal ECG. He was </ therefore, excused from duty for one day forced rest and recovery. From these records, it is clear that the^saidjOpJyo Marcellus attended medical treatment as deponed affidavit in support of the application (( a (p On tJhe other limb,^counsel for the respondent submitted that .. .'V............ ............. she was^stipposed to foresee and send another advocate. In my view, indired^counsel for the respondent does not dispute that counsel for the applicant fell sick, but only complains against lack foreseeability by the applicant. This criticism, in my view, is not supported by any medical expert rep rt. It is my considered view that, in normal life of human being, more than often, those who are seen to be healthier sometimes falls to the grave leaving behind the one bedridden for years or months, who later on may rise up. The key to the health secret of every individual s in hands of the creator and not in hands of the bosses of those individuals or the individual themselves. In other words, counsel for the respondent is suggesting that the said counsel for the applicant should not be given files to appear in court due to his^health cpn'dition and eithe should do desk work or be terminated. I thjpk, that is going far, as staled, those who think they are standing^t^ey may fall at any time. For id herein above,^find^^^non-appearance of counsel for the applicant on 23rd April 2020^was justifiable. I therefore allow the J? application and restore revision application No. 318 of 2019. JUDGE 26/11/2021