orica tanzania limited vs henry nyamusha and 2 others 2021 tzhc 6512 24 september 2021

IN THE HIGH COURT OF TANZANIA (LABOUR COURT DIVISION) IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA LABOUR REVISION NO.5 OF 2021 ORICA TANZANIA LIMITED APPLICANT VERSUS HENRY NYAMUSHA-- YAHAYA PUYAGA - RESPON DENTS SAMSON MUHOZYA (Arising from the Decision of the High Court of Tanzania, Shinyanga) Dated the 24thday of March,2021 In labour Revision No. 21/2020) RULING 2SthAugust& 24thSeptember,2021 MDEMU, J.: This is application for restoration of the application which was dismissed for want of prosecution by this court. The application which is made by way of Notice of Application and Chamber Summons is under the provisions of section 94(1) (d) of the Employment and Labour Relations Act, Cap.366 RE 2019 (the ELRA) and Rule 24 of the Labour Court Rules, GN No.106 of 2007 and is supported by the affidavit of Mr. Kassim S. Gilla on the following prayers: (a) That, this Hon. Court be pleased to issue an order re- enrolling Labour Revision No.21 of 2020 between Orica Tanzania Limited vs Henry Nyamusha and Two Others which was dismissed for non-appearance on 24/3/2021. (b) That, upon granting prayer No.(a) herein above/ that the said Labour Revision No.21 of 2020 be scheduled to continue for hearing from the stage it was before the order of striking it out on 24/3/2021/ (c) Costs of this application be paid by the Respondents. (d) Any other/further re/ief(s) that this Hon. Court may deem just and fit to grant. Hearing of the application was on the 25th of August, 2021 whereby the Applicant was represented by Mr. Kassim Gilla, Learned Advocate whereas Mr. Alex Robert, learned Advocate represented the Respondents. In support of the application, Mr. Kassim Gilla submitted first to have his affidavit be adopted to form part of his submissions. He then submitted - that all through, the Applicant's counsel was obedient to attend in court, save for the date the application got dismissed for nonappearance. He referred to paragraph 9 and 10 of the affidavit that, on 25th of February, 2021, the presiding judge was on official safari and got informed of the hearing date by a bench clerk to be 12th of May, 2021. In his view, it appears the Respondent and him were given different hearing dates as they did not appear before the Deputy Registrar for adjournment. He thus submitted that, nonappearance of the Applicant was not contributed by his negligence. He added also that, there are illegalities in the two decisions of CMA containing two different awards which should not be left unchecked as it has adverse impact to the Applicant. To Mr. Gi"a, this Illeqalitv is a sufficient cause for restoration of the dismissed application as stated in Mwanza Director of New Refrigeration Co. Ltd vs. Mwanza Manager TAN ESCO (2006) TLR 329. On those premises, Mr. Gilla urged me to allow this application. Mr. Allex Robert was very brief. He first submitted to have the joint affidavit in reply of the three Respondents be adopted to comprise part of his submissions in opposing the application. He then submitted that, on the day the matter was scheduled for hearing, both parties were present in 3j -- court. It was his view that, allegations of the Applicant that he was given a different date should have been supported by the affidavit of the said Beach Clerk to that effect. On the complained illegalities for having two awards on the same matter, his submission was that, the two decisions are on one subject. The only slight difference is that, the 1st award have one Respondent whereas the 2nd award have three Respondents. In his view, this is not illegality as there is no any change in the content and the outcome of the award. He thus thought the application has no substance and should be dismissed. Mr. Kassim Gilla, in rejoinder, submitted that, in paragraph 9 of the affidavit in reply, the Respondents conceded on the existence of the two awards. In this, his view was that, this court has therefore to determine on revisions if the two decisions have the same outcome as alleged by the Respondents' counsel. He thus reiterated his previous position to have the application allowed. This was all from the parties. In this application, it is not disputed that on 24th of March, 2021 this application was dismissed for nonappearance. It is also on record that on 25th of February, 2021, the presiding judge was on official safari and that ---- parties were given hearing dates without appearing before the Deputy Registrar. Equally, parties were each given hearing date on different occasions by the said bench clerk. What is therefore disputed is whether parties were given the same hearing date as submitted by the counsel for the Respondent. In this one, I agree with the Applicant's counsel that the date communicated to the Applicant and the Respondent were different. Equally, there was no order made in the respective file as to which date the matter got scheduled for hearing. I should remind one thing. Whenever the presiding judge is away of the station, the usual procedure has been for parties to appear before the Deputy Registrar and the latter has to issue an order to adjourn the matter to another date convenient to the diary of the presiding judge. Pronouncing hearing dates by a bench clerk in waiting lounge, as was in this case, is hereby discouraged. Regarding having two awards in one labour dispute, my view is that, this procedure is unusual in adjudication of disputes. What transpired and what the Arbitrator was to do will be guided on revision. The Respondent conceded over presence of the two awards. He however urged want of illegalities because the outcome is the same. In this, I agree with Mr. Gilla SJ ---- that, unless this court is clothed with revision jurisdiction, and certainly revise the matter, is when one may allude that presence of the two awards have not occasioned miscarriage of justice to the Applicant. On that account, this application is hereby allowed. Labour Revision No.21 of 2020 which was dismissed on 24th of March 2021 for want of prosecution is accordingly restored. Each part to bear own costs of the application. It is so ordered. Gerson .. JUDGE j 24/9/2021 DATED at SHINYAN~A/this 24th'day of September, 2021. (!T ~\ ~, Gerson lJ;Mdemu , JUDGE -, '-*-,. 24{9/2021 ~/ 6