pick trading company limited vs cretus vs kato 2021 tzhcld 410 20 september 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION PAR ES SALAAM MISC. LABOUR APPLICATION NO. 188 OF 2020 BETWEEN PICK TRADING COMPANY LIMITED...................................... APPLICANT VERSUS CRETUS V. KATO...................................................................... RESPONDENT RULING S, M. MAGHIMBI, J, The applicant filed the present application urging the court to restore Revision No. 82 of 2019 which was dismissed for want of prosecution by Hon. Wambura, J on 24/04/2020. The application is supported by the affidavit of Mr. Abdallah R.M. Matumla, the applicant's Counsel. The respondent challenged the application vehemently by filing his counter affidavit. By an order of the court dated 06/05/2021, the application was disposed by way of written submissions. In this court, Mr. Abdallah R.M. Matumla, Learned Counsel represented the applicant whereas Ms. Ziada Omary Mkwizu, Learned Counsel appeared for the respondent. Arguing in support of the application, Mr. Matumla submitted that there is no dispute both parties were present in court on 26/02/2020 before Hon. Ngumbu DR on behalf of the trial Judge Hon. Wambura who attended her mother's funeral at Bukoba. That the matter was 1 scheduled to come on 24/04/2020 and not on 22/04/2020. Further that on 24/04/2020 both parties were present in court to proceed with the case and stayed in court up to 2 pm when they were informed by the court clerk that the application was dismissed on 22/04/2020 for want of prosecution. He argued that the dismissal was completely unfair and injustice which deprived the parties the right to be heard as embodied under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania., hence the dismissal order was erroneously made. In reply, Ms. Mkwazu submitted that Revision No. 82 of 2019 was properly dismissed because parties did not attend the court on the scheduled date. That the application at hand is an abuse of court process because the execution order against the application which the applicant wants to revise has already been made by Hon. Mtarania. She argued that to restore the application is just wastage of time since the matter is of 2018. She went on submitting that the court arranged the date correctly, unless the parties did not hear it clearly thus it is not the fault of the court to dismiss it. Ms. Mkwazu argued that there is no where the parties were denied the right to be heard as alleged by Mr. Matumla and that justice delayed is justice denied since the matter is of 2018. She prayed that this application be dismissed. In rejoinder, Mr. Matumla submitted that the respondent has conceded that all parties were absent on 22/04/2020 when the matter was dismissed for want of prosecution, which proves that the matter was not scheduled on that date. He insisted that the parties came to court on 24/04/2020 and found that the matter had been already 2 dismissed. On the point of justice delayed, he argued that it has no merit because the right to be heard is a fundamental principles of natural justice requirements therefore the dismissal order was against such principle. Regarding the execution order, he submitted that the same was issued prematurely and improper because there was still pending Misc. Application No. 188 of 2020 before Hon. Mwipopo. I will however not labor much to reproduce the parties' submissions on this issue because that is not what is before me to determine at this point. After considering the rival submissions of the parties, court records and relevant laws I find the court is called upon to determine whether there were justifiable reasons for the absence of applicant on the date which the Revision Application was dismissed for want of prosecution. The court's power to re-enroll an application struck out for want of prosecution is provided under Rule 36 (1) of the Labour Court Rules, GN 106 of 2007 (herein Labour Court Rules). The relevant provision 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 strongly alleged that the matter was not scheduled on the date of the dismissal order. He alleges that on 26/02/2020 which was the last adjournment before Hon. Ngumbu DR, the parties were informed that the trial Judge travelled to 3 Bukoba to attend the funeral of her beloved mother. That by consent of the parties the matter was scheduled on 22/04/2020. To the contrary the applicant's allegation does not reflect with the record available in court. The proceedings of impugned decision shows that on 26/02/2020 which was the last adjournment the parties appeared before Hon. S.R Dingohi DR where both Counsels were present. On that date the parties were informed that the trial Judge was on High Court session at Morogoro sub-registry. The record further reveals that hearing was ordered to proceed on 22/04/2020 where they did not attend therefore the matter was dismissed accordingly. Under the above circumstances, it is my view that the applicant's allegation is not backed up with any evidence that the matter was not scheduled on the dismissed date. However, I have examined the whole record of the matter; the intended decision to be challenged was delivered by the Commission for Mediation and Arbitration on 28/01/2019. Immediately on 15/02/2019 the applicant filed Revision No. 82 of 2019 where both parties appeared in all dates scheduled by the court except on the date of the dismissal order. I have also noted that Ms. Mkwazu did not dispute the fact that both parties were absent on the date the matter was dismissed and did not further dispute Mr. Matumla's submission that on 24/04/2020 both sides were presente in court. This is a clear indication that there was an actual confusion of the dates. On those observations I am satisfied that the applicant and his Counsel has shown diligence in pursuing the matter because they have never slept to their right. Mr. Matumla's conduct in this case shows that he is eagerly pursuing the court to afford him the right to be heard. Only 4 on the confusion of the dates that the application as dismissed. The court cannot ignore these effort and the confusion that has occurred. I have also considered Ms. Mkwazu's submission that execution order has been made against the intended decision however, the relevant order does not prevent the applicant from pursuing his right. For the reasons stated above, I am satisfied that the applicant has established sufficient grounds for non-appearance on the date the application was dismissed hence he is entitled to the grant of the orders sought in the Chamber Summons. Consequently, the said Revision No. 82 of 2019 dismissed for want of prosecution on 22/04/2020 is hereby restored to the court records. It is so ordered. Dated at Dar-es-salaam this 20th day of September, 2021. S.M.MAGHIMBI. JUDGE. 5