tanzania electric supply company limited tanesco vs lusekelo kassang 2021 tzhcld 283 21 june 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 874 OF 2019 BETWEEN TANZANIA ELECTRIC SUPPLY COMPANY LIMITED (TANESCO).............................................. APPLICANT AND LUSEKELO KASSANGA......................................................... RESPONDENT RULING Date of Last Order: 21/06/2021 Date of Ruling: 21/06/2021 Z.A. Maruma, J. The matter came for hearing this morning when Mr. Howa Msefia Advocate representing applicant in this matter prayed for withdrawal of the application with a live to re-file. Given grounds for the withdrawal, Mr. Msefia stated that application on record is supported by an affidavit not inconformity with the format provided by the Labour Court Rules, GN. No. 106 of 2007. However, he did not specify a specific rule. He also, pointed out that the affidavit contained no statement of legal issues that arose from material facts and relief sought. Moreover, He submitted that there are a lot of i missed documents supposed to support the affidavit. According to him the said documents are fundamental to determine the application. Submitting why the said documents were missed, Mr. Msefia submitted that by the time the application filed in court, the said documents were not easily accessed due to an office transfer from one building to the other so it was difficult to trace them. Therefore, he prayed the application for revision to be withdrawn with a live to refile. He informed the court that he is ready to do so even before the end of this week and seek for an opportunity for hearing in the coming week since the said documents can be found. Insisted his prayer he cited Revision Application No. 238 of 2020 between Tanzania Electric Supply Company Limited (TANESCO) Vs. Robert Shemhilu whereby, the court granted the » J? same prayer with leave to refile the application. Contended the prayers, respondent Mr. Lusekelo Kassanga submitted that the prayer sought is to delay determination of application on substantive matter. He argued that, the fact that appellant was aware of the cited decision since June 2020 and the last-mentioned date was on 14/06/2021. The applicant took no action 2 as he prayed before the court today. Moreover, respondent argued that the prayer did not show clearly any part of affidavit which was not complied with the Rules. Also, the missed documents were not stated as the application is against the decision of Commission for Mediation and Arbitration (CMA) whereby all documents are in the records. He concluded that the applicant's prayer is for delay purposes which this court should not considered. Also he submitted that the grounds given will not preempt the matter to proceed for determination of substantive justice. I have weighed the parties' arguments and it is apparent clear that each party's interest is to determine the end justice and not to prolong the matter in court. However, the applicant's prayer to withdraw the matter with a leave to refile, is the right to be exercised under rule 34 (1) of the Labour Court Rules, GN. No. 106 of 2007. Moreover, going through records, it is very difficult for this court to pre determine the material legal statements and fundamental documents missed to support affidavit as submitted by the applicant so to determine the substantive justice of this application. On the other hand, the principle of natural justice applies equally to the respondent that the matter should be determined in its finality so to exercise his right without undue delays as supported by his arguments above. In my considered view and for the interest of both parties, the prayer to withdraw the application with a leave to re-file is granted. The applicant to file revision application within seven days from a date of the ruling. JUDGE 21/06/2021 4