tanzania posts corporation vs victor masalu 2018 tzhcld 34 19 april 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION IN THE LABOUR COURT ZONE CENTRE AT KIGOMA REVISION NO. 14 OF 2015 TANZANIA POSTS CORPORATION..................................APPLICANT VERSUS VICTOR MASALU......................................................... RESPONDENT RULING Date o f Last Order: 11/04/2018 Date o f Ruling: 19/04/2018 L.L.Mashaka. 3 This is a ruling in respect of a legal issue raised by the Counsel for the applicant Mr. Eric Maximillian, Principal Legal Officer on the prayer to withdraw the application for revision with leave to refile. The applicant is represented by Mr. Eric Maximillian, Principal Legal Officer of the applicant and Mr. Emmanuel W. Mkwe, Advocate represented the respondent. When the matter came for hearing on 11/04/2018, Principal Legal Officer of the applicant informed the Court that he was taken by surprise on the case being called for hearing. That they were not served summons hence not aware. He contended that last week two summons were brought i at the Kigoma Regional Posts Office, for case Revision No. 10 of 2015 between Jumanne Gaudence and 4 Others Vs. Meneja Shirika la Posta, summons was addressed to Meneja Shirika la Posta and another summons for Revision No. 14 of 2015 between Tanzania Posts Corporation Vs. Victor Masalu, addressed to Victor Masalu. Principal Legal Officer argued that the Court Process Server requested the Regional Manager at Kigoma Branch to assist to serve the respondent, a task which was done. The Regional Manager forwarded the summons for Revision No. 10 of 2015, hence he entered appearance to attend the same. He therefore prayed for adjournment subject to the Court's diary. In response Learned Counsel for the respondent drew the attention of this Court to the fact that the Principal Legal Officer's submission that they were served with two summons and one of the summons required them to appear for Revision No. 10 of 2015, which they were a party to the matter. That the other summons, in respect of Revision No. 14 of 2015, which they are the applicant and required to enter appearance for hearing. That the one who was served and accepted the summons had knowledge of the present pending matter. In the premises the applicant effected summons to the respondent in this matter, knowing that the respondent would not appear alone because they are the applicant. In such a circumstance, Learned Counsel argued that one cannot be convinced that the applicant had no knowledge of what is going on and his inaction to take cause in notifying Principal Legal Officer of the applicant as alleged should not disadvantage the respondent in this matter. That the respondent has Incurred costs in travelling from Kasulu to Kigoma to attend the hearing of the matter. That should it be justifiable to adjourn, then the same be adjourned with costs for the respondent, taking into consideration the age of this matter has been pending in Court. He contended that the reasons assigned by Principal Legal Officer of the applicant are devoid of merit and are intended to prolong the proceedings of this application. The Court having heard both parties ordered the application to proceed with hearing as planned in this session due to the reason that it was a long pending matter, a 2015 case, which will be 3 years old come June 2018. The Court ordered the matter to be disposed of and cannot be adjourned indefinite. And as much as Principal Legal Officer of the applicant presupposes he had no knowledge then, he now has the knowledge. For the interest of justice, the Court granted Principal Legal Officer of the applicant time to prepare himself and the hearing of this application for revision to proceed on a date to be fixed by the Court during this session. The matter was adjourned and hearing fixed on 12/04/2018 at 12.30PM. When the matter came for hearing on the 12/04/2018 Mr. Eric Maximillian, Principal Legal Officer of the applicant at the outset informed the Court that despite the fact the application was for hearing and he was ready to proceed with it, he had discovered in their affidavit there were defects. That the affidavit deponed by one Rochus Assenga on the 19/06/2015 at the verification clause there is no name of the verifier and non-citation of sub paragraph to Section 94(l)(b) of the Employment and Labour Relations Act No. 6 of 2004. Also he had not cited Section 91(2) of the Employment and Labour Relations Act No. 6 of 2004. In that respect he prayed to withdraw the application with leave to refile within 14 days. In response Learned Counsel for the respondent argued that the v application was filed subject to the ruling delivered by Hon. Mipawa, J on the 10/06/2015 where the applicant was given a last chance leave at page 6 of the Ruling in Revision No. 2 of 2015. That these defects have been repeatedly appearing on the part of the applicant, and this was the 4th time. The 1st order with regards to conduct of this application was issued on the 16/08/2013 before Hon. M.R Gwae, Registrar (as he then was) in Revision No. 5 of 2013 where he observed at page 2 of the typed proceedings, the Court ordered " with due perusal o f the pleadings filed by the parties, I have observed that both affidavit and counter affidavit are defective, in that the ju ra t o f attestation is improper. Due to the obvious im propriety the application is struck out, as per Rule 7(5) o f the Labour Court Rules and Order XLIII 43(m) o f the C ivil Procedure Code, applicant is given 14 days to re file his application if he so wishes. Ordered accordingly. "This was the 1st instance. Learned Counsel further submitted that the 2nd instance was before Hon. Mipawa,J in Revision No. 12 of 2013 which was ordered on the 04th November 2014, at page 1 of the Ruling, where Hon. Mipawa, J had this to say, "as the advocate for the applicant is not here, we give the applicant last time to refile a proper application and the follow ing should be observed; (1) The applicant should file his notice o f application under Rule 24(1)(2) &(3) o f GN No. 106 o f2007. They should be cited. (2) Rule 2 8 (l)(a) or (b) or (c) or (d) or (e) o f the Labour Court Rules m ust be cited depending with the needs o f the applicant. (3), Section 91(1) (a) or (b) (2)(a) or (b) or (c) o f the Employment and Labour Relations A ct No. 6 o f2004 should be cited. (4) Affidavit m ust bear the name o f the person who verified. (5) Jurat o f attestation m ust be drawn in accordance with the requirem ents o f the law and not the form at o f the party's own choice, see the Oaths and Statutory Declarations Act, Cap 34 R E 2002. (6) The counter affidavit o f the respondent is not endorsed contrary to Section 41 o f the Advocates Act Cap 341. (7) The counter affidavit has no name o f the verifier." The application was "struck out and grant the applicant leave to refile a proper application for the last time within 6 months from today." The 3rd instance is in respect of Revision No. 2 of 2015, which was also before Hon. Mipawa, J as seen at page 6 of typed Ruling having observed the irregularities, Hon. Judge had this to say, " in the foregoing, the application is struck out. But for meeting the good ends o fjustice, the applicant is given LAST CHANCE leave to refile a proper application free from those errors within 14 days from 12/06/2015." Given the circumstances of the proceedings, Learned Counsel for the respondent, contended that the applicant seems to have no interest in pursuing this application for reasons known to himself owing to the failure to observe this Hon. Court's orders and directions as issued from time to time. And in such a circumstance, this application being defective and having been before this Hon. Court for a considerable period of time, be dismissed with costs. In the alternative, Learned Counsel argued that should this Hon. Court find the reasons or excuses given by the applicant are worthy a point which will not prejudice the respondent, then any leave to refile the application or withdraw as prayed by applicant, costs should follow the event to that effect, and prayed to submit to this Court the copies of the rulings for judicial consideration that is Revision No. 5 of 2013, Revision No. 12 of 2013 and Revision No. 2 of 2015 between the same parties. Having heard submissions from both parties, and taking into consideration the rights of parties in this application for revision the issues for determination is whether or not this Court has been properly moved to determine this application for revision and whether or not the Court may grant leave to the applicant to withdraw the application at hand or dismiss the same with costs. As concede to by Principal Legal Officer of the applicant, this application is incompetent for lack of name and signature of the verifier/deponent at the verification clause of affidavit, hence incurably 6 defective. Also the application suffers from non-citation of Section 91(2)(a) or (b) or (c) depending on the relevant grounds for revision and sub- paragraph to Section 94(l)(b) of the Employment and Labour Relations Act No. 6 of 2004. Hence this application for revision is incompetent to properly move the Court to determine. Secondly, it is undisputed that the applicant has filed incompetent applications which were struck out by the Court and leave granted three times, amongst them leave of six months, enough time for the applicant to prepare a proper and competent application. It is from the Court records the first application by the applicant was Revision No. 5 of 2013 between Tanzania Posts Corporation Vs. Victor Masalu. The application had defective ju ra t o f attestation hence incompetent. It was struck out on 16/08/2013 before Hon. Gwae, Registrar [as he then was] and the applicant was granted leave of 14 days to file a fresh application. The second was Revision No. 12 of 2013 between the same parties. It had five procedural irregularities, namely; (1) The applicant should file his notice o f application under Rule 24(1)(2) &(3) o f GN No. 106 o f2007. (2) Non citation o f sub paragraphs to Rule 2 8 (l)(a) or (b) or (c) or (d) or (e) o f the Labour Court Rules m ust be cited depending with the needs o f the applicant. (3), Also non citation o f Section 91(1) (a) or (b)(2)(a) or (b) or (c) o f the Employment and Labour Relations A ct No. 6 o f2004 should be cited. (4) Affidavit did not bear the name o f the person who verified. (5) Jurat o f attestation must be drawn in accordance with the requirements o f the law and not the form at o f the party's own choice, see the Oaths and Statutory Declarations Act, Cap 34 RE 2002. That said application was struck out of this Court's Register on 04/11/2014 for the defects observed in earlier application and in this application too. Mr. Evody Vedasto Principal Officer of the applicant was present, as in the first application. The Court grant the applicant leave to file a proper application for revision within 6 six months. V The third application was Revision Application No. 02/2015 between the same parties. The application met preliminary objection from the respondent on wrong citation o f Section 91(1) o f the Employment and Labour Relations A ct No. 6 o f 2004, which was upheld. The application was struck out and given LAST CHANCE LEAVE to refile proper application free from errors within fourteen (14) days from 12th June 2015 when it was struck out. Hence the present application Revision No. 14 of 2015 between Tanzania Posts Corporation Vs. Victor Masalu. In Revision No. 2 of 2015, the Court observed at page 5 of the Ruling that "the Court on 24/11/2014 dealt with Revision No. 12 o f 2013 between the same parties, where those defects were noted and the applicant was directed on how to cure the same and was given a six months leave to refiie the proper application." From the records the applicant was given leave by this Court to file proper application for revision together with directions on how to cure the defects and despite being represented by own Principal Legal Officers have failed to diligently represent the applicant and failed to adhere to Court orders in this pending present application, which is 5 years old now. This Hon. Court has been very lenient and accorded the applicant several opportunities at the expense of the rights of the respondent hence it has to come to an end as it was held in the case between Stephen Masato Wassira Vs. Joseph Sinde Warioba & The Attorney General [1999] TLR 332 at page 342, where 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." I have observed the defects are the same, recurring from the first application Revision No. 5 of 2013 between Tanzania Posts Corporation Vs. Victor Masalu, which had defective jurat of attestation, and was struck out on 16/08/2013 and leave granted to the applicant to file proper application within 14 days. The second Revision No. 12 of 2013 between the same parties had five procedural irregularities, non citation of enabling provisions of the law, defective affidavit at verification clause lack of name of verifier and on the format of the jurat of attestation; the application was struck out and the applicant was granted leave to file proper application within 6 months. Third application Revision Application No. 02/2015 between the same parties, the respondent 9 raised preliminary objection amongst the points want of proper citation of the law. The preliminary objection was upheld and the application was struck out with LAST CHANCE LEAVE of fourteen (14) days hence this present application Revision No. 14 of 2015 between same parties which is also defective. This application is supported by defective affidavit at the verification clause for lack of name and signature of the verifier offending Order VI, Rule 15(3) of the Civil Procedure Code, Cap 33 RE. 2002, non-citation of sub- paragraph to Section 94(l)(b) and whole of Section 91(2)(a) "...m isconduct on part o f the arbitrate!11 or (b) " the award was im properly procured"or (c)" the award was illog ical or ille g a l" of the Employment and Labour Relations Act, 2004, these are enabling provisions. The Court has observed, there is no name of the drawer on notice of application, chamber summons and affidavit which offends Section 44(1) of the Advocates Act, Cap 341 RE 2002. The Court finds this application is incompetent to properly move the Court to determine. This Court takes recognizance of the provisions of Rule 3(1) of the Labour Court Rules GN 106/2007 that, 'The Labour Court shall be a court o f records, law, equity and m ediation.../' There is a maxim which states that, "he who comes to equity has to come with clean hands.." 'The one who seeks equity must do equity, the party must be w illing to complete a ll its own obligations as well. Equity w ill not perm it a party to p rofit by his own wrongs" see the case of Tabora Textiles (T) Ltd Vs TUICO, Revision No. 5 of 2016 HCTLD at Tabora, (unreported) on 18/3/2018 by Mashaka,J at pages 6-7. 10 That power of this Court has been employed henceforth by this Court in various cases. In the case of Tabora Textiles (T) Ltd Vs TUICO, Revision No. 5 of 2016, HCTLD at Tabora (unreported) on 18/3/2018 by Mashaka,J where the Court was confronted with application for revision of a similar nature like the present one and dismissed the same. The applicant repeatedly filed incompetent applications for five times without observing and implementing the orders of the Court. Also the case of Manyilizu M. Maghembe Vs Mwananchi Communication Ltd, Miscellaneous Application No. 248 of 2016, HCLD at Dar Es Salaam [unreported] where the applicant filed incompetent applications for four times contrary to Court orders and lastly the Court dismissed the same. Also see the case of Elfazi Nyatega and 3 others Vs. Caspian Mining Ltd, Misc.Appl. No. 9 of 2015, HCLD at Mwanza, (2015) Labour Court Cases Digest PART II 158. The applicant in this application for revision exercised negligence, laxity and repeated the same errors without demonstrating any seriousness or care on his part and filed incompetent applications for revision for 4 times, contrary to Court orders and directions. This has to come to an end as held in the case of Stephen Masato Wassira Vs. Joseph Sinde Warioba and the Attorney General (supra). This application for revision is incompetent to move the Court and using powers vested in this Court under Rule 55 of the Labour Court Rules, Government Notice No. 106/2007 this application for revision is dismissed with costs, thereto. The order to costs is granted under Rule 51(2) of the li Labour Court Rules, Government Notice No. 106/2007 following the reasons explained above, this application is frivolous. Conclusively this application for revision is dismissed with costs. So ordered. . . . L.L.Mashaka1 ' JUDGE 19/04/2018 12