tanzania electronic supply coltd vs robert shemhilu 2021 tzhcld 131 4 june 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 238 OF 2020 TANZANIA ELECTRIC SUPPLY COMPANY LIMITED(TANESCO).................................APPLICANT VERSUS ROBERT SHEMHILU............................................. RESPONDENT RULING Date of Last Order: 04/06/2021 Date of Ruling: 04/06/2021 Z.G.Muruke, J, When this matter come for hearing, Mr. Kyarukuka, counsel for the applicant, prayed to withdraw present revision with leave to refile to be able to attach relevant documents in the application. Mr. Ngudungi for the respondent, resisted the prayer on the ground that, applicant withdraw previous Revision application number 672/2019, on 10th June, 2020, which was granted with leave to refile. Again today same applicant counsel is repeating same prayer, these will lead to endless litigation of the present dispute. In rejoinder applicant counsel insisted right to be heard, and that on previous case issue was raised suo moto by the court. According to the records applicant (TANESCO), have been in court answering for respondent claim since 2013. For all these time, they have been defending their case and now they have present revision which is cross revision following respondents revision number 680/2019 challenging i CMA decision. It is right to be heard on an intended revision once present revision is withdrawn. It is elementary principle of the law that, Natural justice demand, parties to the case to be heard before an order can be made to the prejudice of their rights. Failure to hear a party is an error which goes to the root of the matter and is fatal. Rule of natural justice states that no man should be condemned unheard and, indeed both sides should be heard unless one side chooses not to. It is a basic law that, no one should be condemned to a judgment passed against him without being afforded a chance of being heard. The right to be heard is a valued right and it would offend all notions of justice if the rights of a part were to be prejudiced or affected without the party being afforded an opportunity to be heard. Much as I admit that due diligence by counsel for the applicant would reduced number of applications filed, but that is pure and simple negligence of an advocate, and not otherwise. It sounds unfair and inequitable, in my considered opinion for a part to Civil litigations to be punished for an error committed by the advocates and more specifically where the error is within the advocate professionalism. Throughout history, courts of law have assumed the position of custodians of justice. It therefore comes as a surprise and indeed it lowers down the reputation and respect of the courts when parties submitting themselves to the jurisdiction of the court loses their cases for wrongs committed by their advocates or representative. 2 It is now an established position of the law that in exercise of their duty of administration of Justice, courts of law are required to give substantive justice priority to legal technicalities. There are many authorities supporting that position. The Court of Appeal of Tanzania as per Munuo, J.A., in the case of China Henan International Co. - operation Group Co. Ltd Vs. Salvand K.A. Rwegasira, Civil Application No. 43 of 2006, for instance, took the view that procedural rules are there to guide for an orderly and systematic presentation of a cause so as to help the substantive law and not to enslave the same. In particular the justice of Appeal had the following to say and I quote. "It is a well-established principal that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistakes which if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the indiscipline but for the sake of deciding matters in controversy." Prayer to withdraw revision application is granted. For interest of justice and being guided by Rule 55(1)&(2) of the Labour Court Rules GN 106/2007, applicant is granted fourteen (14) days leave to file competent revision application. It should be noted that this is last opportunity for the applicant to correct the anomaly. ' Z.G.Muruke JUDGE 04/06/2021 3 pplicant Z.G.Muruke JUDGE ■ 4