leo logistics company limited vs juma ramadhani kasambala 2021 tzhcld 445 15 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISC. LABOUR APPLICATION NO. 177 OF 2021 BETWEEN LEO LOGISTICS COMPANY LIMITED.................................... APPLICANT VERSUS JUMA RAMADHANI KASAMBALA......................................... RESPONDENT RULING S. M. MAGHIMBI, J. The applicant filed the present application urging the court to restore Revision Application No. 117 of 2020 which was dismissed for want of prosecution by Hon. A.E. Mwipopo, J on 12/04/2021. The application is supported by an affidavit of Mr. Jayant Dhanji Bhikha, the applicant's Managing Director. The respondent vehemently challenged the application through a notice of opposition lodged under Rule 24(4) (a) and (b) of the Labor Court Rules, G.N. No. 106/2007 ("the Rules"). The matter was argued by way of written submissions. Mr. Paul Elias, learned Counsel was for the applicant whereas Mr. Sammy Katerega, Personal Representative appeared for the respondent. 1 Arguing in support of the application Mr. Elias submitted that the reason for non-appearance of the applicant is that the applicant engaged a private Advocate to prosecute the matter. That unfortunately the said advocate did not update the applicant on its status, nor did he appear before the court hence the matter was dismissed for want of prosecution. Mr. Elias argued that the applicant was unaware of the status of the dismissed application and that surprisingly on 23/04/2021, the applicant was served with notice of warrant of attachment of his motor vehicle which was also used as a collateral for bank loan of Tshs. Ten million (Tshs. 10,000,000/=). He then submitted that a party should not be punished for shortcomings or inaction committed by his advocate. To booster his stance, he cited several precedents including the famous decision of the court of appeal in the case of Kambona Charles (as administrator of the estate of the late Charles Pangani) v. Elizabeth Charles, Civ. Appl. No. 529/17 of 2019. Mr. Elias also pointed out the illegalities which are in the impugned decision arguing that where there are illegalities, the court of law will always use its discretionary powers to allow any other order or relief as it may deem fit to grant. He strongly submitted that the reason for the 2 dismissal of Revision No. 117 of 2020 was beyond the applicant's control thus, the application be granted. In reply, Mr. Katerega contended that in the dismissed application the applicant was represented by his Principal Officer and not the alleged advocate as submitted by Mr. Elias. That the cited cases on the negligence of an advocate are irrelevant in the present application as the contested matter was adjourned for six times and the applicant did not attend at all the sessions scheduled. As to the referred cases by the applicant's Counsel, Mr. Katerega submitted that they are distinguishable to the matter at hand because the applicant in this case was not represented by an advocate. Mr. Katerega also brought to the attention of the court that this matter originated from 2016, therefore it is long period of time and the respondent is deprived of his enjoyment of the award. He also responded to illegalities pointed out by Mr. Elias and contended that the same have no merit. He prayed for the application to be dismissed. After considering the rival submissions of the parties, court records and relevant labour laws I find the court is called upon to determine whether the applicant demonstrated satisfactory reasons for the grant of the application at hand. The court's power to re-enrol an application 3 struck out for want of prosecution is provided under Rule 36 (1) of the Rules which provides as follows: - "where the matter is struck off the file due to absence of the party who initiated the proceedings, the matter may be re­ enrolled if the party provides the Court with a satisfactory explanation by an affidavit, for his failure to attend the Court.' In the application at hand the applicant urged the court to re-enrol Revision No. 117 of 2020 which was dismissed for want of prosecution on the ground that the engaged advocate failed to update the applicant's company on the progress of the case in question. I have examined the record of Revision No. 117 of 2020 in question and as submitted by Mr. Katerega, the applicant was unrepresented. There is no notice of representation filed by the applicant to inform the court that they were represented by any advocate. Moreover, in the notice of application of the matter in question, the applicant notified the court that service of all proceeding was to be addressed to Mr. Keval Dinesh Bikha, the applicant's Operations Manager. The record further shows that the matter was adjourned for six times and neither the applicant nor his alleged advocate appeared before the court. I am not in disregard of the cases cited by Mr. Elias on negligence of an advocate, but with respect to his submission, the cases 4 cited are distinguishable to the matter at hand because in this matter the record shows that the applicant was not represented by any advocate. That said, it is conclusive that the applicant has failed to demonstrate sufficient reasons for restoration of Revision No. 117 of 2020. In the result, this application lacks merit and it is hereby dismissed. 5