the registered trustees of seventh day adventist church another vs yona msomi another 2023 tzhc 21241 26 september 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT MOROGORO MISC. LABOUR APPLICATION NO. 13 OF 2023 (Arising from Execution No. 10 of2023 before Hon. A. W. Mmbando^ DR; which arose from an Appiication for Labour Revision No. 19 of2021;in the High Court of Tanzania, Morogoro Sub-Registry) THE REGISTERED TRUSTEES OF SEVENTH DAY ADVENTIST CHURCH........ 1®^ APPLICANT BOARD OF UFUNUO PUBLISHING HOUSE.. 2^0 APPLICANT VERSUS YONA MSOMI 1®^ RESPONDENT JOHN CHAGONJA 2^^^ RESPONDENT RULING 9^^ August & 26^'' Sept, 2023 CHABA, J. The Registered Trustees of Seventh Day Adventist Church and the Board of Ufunuo Publishing House filed In this Court the Instant Application, under certificate of urgency, against the respondents, Yona Msomi and John Changoja seeking for the following orders: 1. That, this Honourable Court be pleased to stay the intended Execution No. 10 of 2023 pending the determination of Labour Review No. 10 of 2023 of the Ruling and Orders of this Curt In Labour Revision No. 19 of 2021 which is sought to be executed. Page 1 of 6 2. That, this Honourable Court be pleased to stay the intended execution pending the determination of Application in Labour Revision No. 17 of 2021 concerning the same Award from which the Ruling and Order sought to be executed is referring and which is currently pending before this Court (Chaba, J.) concerning the same Award which is applied to be executed. 3. Any other Order this Honourable Court may grant. The application has been preferred under Rule 24(1),(2)(a),(b),(c),(d),(f), (3) 8l (11)(b) of the Labour Court Rules GN No. 106 of 2007 and Section 91 (3) of the Employment and Labour Relations Act,[CAP. 366 R. E. 2019] and is supported by an affidavit deposed by Mr. Pius Mataba, a principal officer of the applicants but verified by Mr. Isaac Nassor Tasinga, the learned Counsel for the applicants. On their part, on 31^^^ July, 2023, the respondents lodged a joint counter affidavit svvorn by both respondents. The said counter affidavit was filed by the respondents alongside with a notice of preliminary objection raising a point of law to wit; this Court has no jurisdiction to grant stay of execution of its own decree which is within the domain of the Court of Appeal of Tanzania as per Rule 11 (3) of the Court of Appeal Rules of 2009 as amended by GN No. 362 of 2017 and GN No, 344 of 2019. With the parties' consensus, it was agreed that the raised preliminary objection (PO) be argued and disposed of by way of written submissions. The respondents were supposed to file their written submission on or before Page 2 of 6 23/8/2023; reply to the respondents' written submission to be filed on or before 6/9/2023 and rejoinder (if any) was scheduled to be filed on or before 13/9/2023. However, it is on record that, only the respondents through the legal services of their learned advocate, Mr. Isaya Mwanri filed their written submission In support of the raised PO, whereas neither the applicants nor their learned advocate, Mr. Isaack Nassor Tasinga adhered to the Court's scheduled orders. I am mindful that, failure to file written submission on the dates scheduled by the Court Is as good as non-appearing on the date fixed for hearing, the applicants and their advocate failed to submit written submission on the date fixed, something which Is tantamount to non-appearance on the date of hearing. I shall therefore proceed to determine the PO on the basis of the submissions filed by the respondents. Arguing In support of the raised PO, Mr. Mwanri, Counsel for the respondents commenced by giving a short background to the present application. He further averred that, the applicants filed an application for stay of proceedings In Execution No. 10 of 2023 pending the hearing of the Application for Labour Review No. 1 of 2023, whereby the respondents raised a PO on the application on the ground that, this Court has no jurisdiction to order stay of Its own proceedings which was not properly filed. He clarified further that, before addressing the Issue on 15^^ August, 2023 they were supplied with the ruling issued by this Court(Chaba, J.) regarding an Page 3 of 6 Application for Labour Review No. 1 of 2023 whereby on the said ruling, the Application for Review through which this application for stay of proceeding pending review arose, had been dismissed with cost for lack of merits. He underlined that, on the same date the Application for Execution No. 10 of 2023 which was pending before the Honourable Deputy Registrar of the High Court of Tanzania, Morogoro Sub-Registry was right away struck out. That being the position, he was of the view that, as of now, there is no pending Review or Execution No. 10 of 2023, meaning that the above two events have overtaken the instant application and the present PO, is as well redundant. He so stated. To fortify his contention, Mr. Mwanri referred this Court to the case of Faustine David Shaurl t/a Pasha Communication Agency Vs. Bank of Africa Tanzania Limited and Three Others, Land Revision No. 4 of 2021, where this Court sitting in Arusha observed that: "The application seeking this court to revise interlocutory order of which its main case was dismissed is overtaken by event so it becomes incompetent." Guided by the principle that, in order for an application of stay of proceedings to stand, there must be a pending case as it was expounded by the Court in the case of University of Dar es Salaam vs Silvester Cyprian & 210 Others (Civil Application 5 of 1995)[1996] TZCA 39 (30 July 1996), the Counsel for respondents underlined that, up to this point in time, there is no any pending Review against Labour Revision No. 19 of 2021. Page 4 of 6 To wind up, the respondent's Counsel submitted that, having in mind that before this Court there is no any pending matter registered as Review against Labour Revision No. 19 of 2021 and taking into account that neither the Applicants nor their learned Counsel failed to file any written submission on the fixed date, the respondents have nothing to do rather than to withdraw their PO which has been overtaken by the event. Mr. Mwanri however, requested his fellow Counsel for the applicants to exercise his overriding duty to the Court by withdrawing this application for stay of execution for being overtaken by event so as to save this Court's precious time. I have considered the submission made by Counsel for the respondents who in principle did not submit on merit of the raised point of objection for obvious reason that, in view of the ruling of this Court in Application for Labour Review No. 1 of 2023 which dismissed the said Application for lack of merit, had no other option but to withdraw the PO intending to challenge the present Misc. Labour Application 13 of 2023. Without much ado, I concur with the Counsel for the respondents that so long as there is no any matter which is pending before this Court for Review against Labour Revision No. 19 of 2021, the raised preliminary objection falls redundant. As to the way forward, I think in my view that, since the present application appears to be overtaken by event, it will be a grave mistake to maintained it in the registry of this Court. Placing reliance upon what I have said herein above, Page 5 of 6 this Misc. Labour Application is like an shell and it is hereby struck out with no order as to costs. I so order. DATFD at MOROnORO this 26^^ day of September, 2023. - y ^\ M. J. Ch^ha ii — 3U0GE 26/wj/2023 Court: Ruling riniiverpd this September, 70:^2 in the absence of both parties. W A. W. I mdo Deputy registrar Court: Rights of Appeal to the parties f , plained. Uj X A. VV. ' -ibendo ri 0»'^ I I < I y tr^r /'' ■ ■ / -■ o23 Hnpr" • >f 5