cheng qiao vs cosco east african ltd 2021 tzhcld 157 11 june 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO. 102 OF 2020 CHENG QIAO................................................... APPLICANT VERSUS COSCO EAST AFRICAN LTD............................. RESPONDENT RULING Date of last Order: 09/06/2021 Date of Ruling: 11/06/2021 Z.G.Muruke, J. Applicant filed present application for restoration of Revision number 436/2019,dismissed for want of prosecution on 25th March, 2020. Application is supported with an affidavit of Esther Peter an advocate who was suppose to appear on the date Revision application dismissed. Relevant paragraph of affidavits read as follows:- 3. That at the day of the appearance for the hearing, I was indeed present at the court grounds, on time, whereas to my dismay upon reaching the Honourable Judge's chambers a few minutes late, I was informed by the court clerk that the case was dismissed for want of prosecution. 4. In addition to that, the delay as mentioned herein was a result of the mandatory hygienic procedure recently established in our court of law as a result of the Novel COVID -19 virus, where there was a bit of a congestions due to the large number of people compared to the number of sanitary supplies available. 5. That upon being notified of the dismissal, I immediately perused the case file and found out that the case was dismissed as informed and therefore decided to pursue the dismissal order so as to remedy the situation. 6. That, on the said dismissed Labour Revision No. 436 of 2019 the applicant is seeking for revision of an Award of the arbitrator for failure to grant for payment of bonus of two years amounting to USD 112,000 as per their employment contract, payment resulting from unfair termination, notice payment, severance payment. 7. That, if the Revision is not restored, the applicant herein will not only suffer loss irreparably but will also have lost the right to be heard. That, I make this affidavit in support of the prayers sought in the chamber summons. Evans Nzowa counsel for the respondent filed counter affidavit, at paragraph 4 he started. That, the contents of paragraph 7 of the applicant's affidavit is partly admitted to the extent that the applicant will loss the right to be heard if the revision is not restored the rest are denied. From the records application is not contested. Apart from the two affidavits of both applicant and respondent counsels, there is an affidavit of Jane Rwiza, court officer, she supports paragraph 3 of affidavit sworn by advocate Esther Peter counsel for the applicant, when she deponed at paragraph 3 and 4 as follows. (3) That on 25th March, 2020, at the High Court, Labour Division I saw Ms. Esther Peter who introduced herself to me as an advocate for applicant, present in court for her client's hearing of Labour Revision No. 436 of 2019 before Honourable, S.A.N.Wambura, J as fixed by the court on 3rd December, 2019. 2 (4) That Advocate Esther Peter arrived at the High Court, Labour Division 5 minutes after the case was dismissed and I was the one who informed her that the case had been dismissed. From both affidavits, Esther Peter counsel for the applicant was present in court, on 25th March 2020, only delayed for five minutes. What applicant seeks is right to be heard, one of the fundamental principals of natural justice. From the records I am satisfied that, applicant counsel none appearance, upon delay of five minutes is excusable. Application is granted. However, there are anormalies in revision to be restored, that may lead to striking up of the revision application. For interest of justice and speeding disposition of cases before court of law, applicant is allowed to file fresh revision within 30 days from today and serve respondent immediately after filing. It is so ordered. iiii • * Z.G^wOe JUDGE 11/06/2021 Ruling delivered in the presence of Anuary Katakweba for the applicant and in the absence of respondent. z.G'slFX' JUDGE 11/06/2021 3