new tabora textiles t ltd vs tanzania union of industrial commercial workers tuico 2018 tzhcld 10 20 march 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT TABORA REVISION NO. 5 OF 2016 NEW TABORA TEXTILES (T) LIMITED......................... APPLICANT VERSUS TANZANIA UNION OF INDUSTRIAL & COMMERCIAL WORKERS (TUICO)............................ RESPONDENT RULING Date of Last Order: 09/03/2018 Date of Ruling: 20/03/2018 L,L,Mashaka, J. This is a ruling in respect of the preliminary objection on the points of law raise by the Representative for the respondent that:- a) The application filed by the applicant has not been endorsed by its drawer. b) The application filed by the applicant contains defective affidavit on verification clause. c) The application filed by the applicant has contain (sic) defective jurat o f attestation. The applicant is represented by Mr. Jotham Paschal, Legal Officer of the applicant and Mr. Jamael Ngowo from TUICO represented the respondent. It is worthy to note that before the hearing of the raised preliminary objection Representative for the respondent raised another point of preliminary objection to the application filed in Court, that the application was incompetent for offending the mandatory provisions of the law, to wit Section 94(l)(b)(i) of the Employment and Labour Relations Act No. 6 of 2004. That it also offends Rule 24(2)(a)(b)(c)(d)(e) & (f) and (3)(a)(b)(c)(d) & (e) of the Labour Court Rules GN No. 106 of 2007 and the whole application does not rely on Rule 24(2) (c) & (f) of the Labour Court Rules 2007. Representative for the respondent contended further that the applicant has not included the requirements provided by Rule 24(2)(c) & (f) of the Labour Court Rules 2007. On the other points of preliminary objection, the Representative for the respondent argued that, it was required by the law that the application must be signed by the drawer and name of the drawer be shown. That on the chamber summons and affidavit, there is no name of the drawer endorsed thereon. This has contravened Section 41 of the Advocates Act Cap 341 R.E 2002 which requires the name and endorsement by the drawer of the documents. On the 2nd point at 1(b) of the preliminary objection, that at the verification clause, the deponent has verified paragraphs 1,2,3,4,5,6 & 7 without including the subparagraphs (i),(ii)(iii) & (iv) of paragraph 6. He prayed to the Hon. Court for a short adjournment to conduct research on the appropriate provisions of the law on endorsement and the same was granted. When the Court resumed as earlier constituted, Legal Officer of the applicant informed the Court that he had a point to address the Court before the Court could proceed with hearing of the preliminary objection raised by the respondent. That he has perused his application for revision and found it incompetent for having a defective affidavit. He also drew the attention of the Court to the fact that the present application was a long pending case and there was a previous leave granted to file the current one. That this present application was brought on Court's leave to file after a previous application was found defective. That this is a Court of record; its decision is an authority. Legal Officer contended that the revisionary powers vested in the Court are meant to revise the proceedings and decisions of lower Courts subordinate to the High Court and the CMA so that the records are set right. He further argued that if an application for revision is dismissed owing to a preliminary objection, this Court cannot exercise its revisionary powers. He argued that the applicant fully understands the pendency of the matter, nevertheless dispensation of justice by this Court should not be compromised at the expense of time but justice has to be dispensed. He therefore humbly prayed for the last chance that if the matter is dismissed without leave to refile, the applicant stands to suffer loss against the respondent. In response Mr. Ngowo for the respondent objected to the applicant's prayer to refile a proper application again as it was the 5th time the 3 applicant is filing incompetent applications before the Court. That on the 29th October 2014, Hon. Mipawa,J gave them the last chance to file a proper application, but they filed an incompetent application for Revision No. 12 of 2014 of which it appeared before this Hon. Court and Hon. Judge gave them a last chance to file a proper application, hence the present application. He elaborated that the applicant first filed Revision Application No. 331 of 2009 and on the 14/09/2012 was struck out for being incompetent before Hon. Rweyemamu, J. Then the applicant filed another application for Revision No. 4 of 2012 which was again struck out by Hon. Wambura, J and given leave again to file a proper application and they filed Revision No. 4 of 2013 which, Hon. Mipawa, J gave them a last chance to file a proper application. Again the applicant filed Revision No. 12 of 2014, that was the 4th application and Hon.Mashaka,J you gave them a last chance to file a proper application which is the present application. This Revision No. 5 of 2016 was the last chance and the applicant has filed an incompetent application again. The Representative for the respondent prays that this application be dismissed because the applicant has been given several occassions to file a proper and competent application but still he has continue to file incompetent applications. He argued that the applicant was just delaying the execution of the CMA award to proceed. Representative for the respondent prayed this application be dismissed with costs as they have 4 incurred costs to come to Tabora and enter appearance for the cases and most of the time the applications were found to be incompetent. Lastly, he supplied the rulings of the Court to support his submission with regards to the applications the applicant had filed, being struck out for being incompetent and leave given thereto. Having gone through the submissions by both parties and Court records, the issue for determination is on the conduct of the applicant filing into this Court incompetent applications for revision and has been given time to refile yet incompetent applications are filed. As rightly submitted by Representative for the respondent, and seen from the records the applicant has enjoy the favour of this Court in four incompetent applications, i.e. Revision No. 4/2012 struck out by Hon. Rweyemamu, J on 14/09/2012 and granted leave to file proper Revision application within one week; Revision No. 12/2012 struck out with leave to file a proper application within 7 days; Revision No. 4/2013 struck out on 29/10/2014 with leave to file proper revision application within 60 days; Revision No. 12/2014 struck out on 19/02/2016 with leave of three days to file competent revision application hence the present one. This is the 5th incompetent revision application. In all the applications above, the Representative of the applicant Mr. Jotham Pascal entered appearance with the same plea to file proper and competent revision application, where the same were all incompetent. The Officer of the applicant being a Legal Officer knows the law, he is not a lay person. Legal Officer of the applicant has concede to the defects raised in the preliminary objection raised by the respondent and prays for leave to refile a competent application for revision as a last chance. In the case between Stephen Masato Wasira Vs. Joseph Sinde Warioba & The Attorney General, [1999] TLR 332 at page 342, the Court of Appeal held that "the law o f this country like laws o f other civilized nations recognizes that like life, litigation has to come to an end. Those who believe that litigation may continue as long as legal ingenuity has not been exhausted are clearly wrong." In the circumstance, the Legal Officer of the applicant exercised negligence and laxity to represent his employer and implement the orders of the Court. This demonstrates lack of seriousness and care on the part of the Legal Officer of the applicant. The Court has been very lenient and accorded the Legal Officer for the applicant several opportunities at the expense of the rights of the respondent. According to the last order of this Court dated 19/02/2016 and in the interest of justice to be done for both parties, this matter should come to an end as justice delayed is justice denied. I am moved to dismiss the application for revision as the applicant has failed to move the Court on several occasions granted by this Court. It is the finding of this Court that its "mercy" now docks, the applicant has vividly shown lack of diligence in filing applications before this Court. This litigation has to come to an end as held in the case of Stephen Masato Wasira Vs. Joseph Sinde Warioba and AG (Supra). There is a maxim which states that, "he who comes to equity has to come with dean hands/' One who seeks equity must do equity, the party must be willing to complete all of its own obligations as well. Equity will not permit a party to profit by his own wrongs. The preliminary objection raised by the respondent is with merit and upheld. The application for revision is incompetent to move the Court as concede to by the Legal Officer of the applicant. Using powers vested in this Court under Rule 55 of the Labour Court Rules, Government Notice No. 106/2007 the application for revision is dismissed with costs, thereto. The order as to costs is granted under Rule 51(2) of the Labour Court Rules Government Notice No. 106/2007 following the reasons explained above. So ordered. L.L.Mashaka i JUDGE 20/03/2018