IN THE HIGH COURT OF TANZANIA LABOUR DIVISION

AT DAR ES SALAAM

REVISION NO.226 OF 2020

ANDALUS CORNER LIMITED APPLICANTVERSUS

CONTRIDA CRISPIN HAULE..................... RESPONDENT

RULING

Date of last order: 06/07/2021

Date of Ruling: 08/07/2021

B.E.K.Mqanga, J

The Applicant filed this application on 16th June, 2020 seeking this

court to revise the decision of the arbitrator dated 29th May, 2020 in Labour

Dispute No.CMA/DSM/ILA/1203/18/492. It was stated in the application Ik

that proceedings and award against the applicant was obtained illegally,

incorrectly and based on bias. It was therefore prayed that this court be

pleased to quash the award.

On 10th August, 2020, the Respondent filed a counter affidavit to

oppose the application. Together with the said counter affidavit, she filed

a notice of preliminary objection that the affidavit by the applicant is

incurably defective.

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On 6th July, 2021 when the application came for hearing, the

Applicant didn't appear as a result the application was scheduled for

hearing today. When the application was called for hearing, only the

Respondent and her personal representative appeared. I wanted to satisfy

myself as to whether the Applicant has notice of hearing. Mr. Hamza

Rajabu, personal representative of the Respondent assured me that the

advocate for the Applicant is aware. I ordered him to phone call one

Victoria Mgonja advocate, who according to proceedings in this file, has

entered appearance on behalf of the Applicant. The said Victoria Mgonja

advocate replied that she will be in court after thirty minutes or she will

send someone for the application to proceed. I heard her, because the

phone was on loud speaker mode. I asked the Respondent and her % *%, 1

personal representative to wait outside while handling other applications

that were before me today. At around 11.30 hrs. when the application was

called, the Respondent and her representative appeared. At this time,

appeared one Anthony Kombe alleging to be personal representative of

the Applicant arguing that he received the file today from Matrona

Kiwale who is also personal representative of the Applicant. Mr. Anthony

Kombe prayed for adjournment on ground that he has to seek for notice of

representation after an issue was raised by the court as to whether he has

power to enter appearance.

The prayer by Mr. Anthony Kombe was objected to by Mr. Hamza

Rajabu the personal representative of the Respondent. Mr. Hamza argued

that Rule 43(1) and (2) of the Labour Court Rules GN. 106 of 2007 requires

applicant to file a written notice to the Registrar and that there is no such

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notice. He went on that, by absence of that notice therefore, the Applicant

intended to personally appear. Mr. Hamza was of the view that, the

Applicant's intention is to delay execution of the Award as it is now almost

one year since the Applicant filed this application without notifying the

District Registrar the notice of representation.&

In reply to Mr. Hamza submissions, Mr. Anthony conceded that the

Applicant has filed another application for stay of execution that is

scheduled for ruling on 28th July, 2021 and that the said application is

based on this application. He conceded further that, on 21st December,

2020, he (Mr. Anthony Kombe) appeared in court before the District

Registrar in these proceedings and that he has not filed a notice of

representation. He insisted for adjournment.

I have heard the submissions of Mr. Hamza the personal

representative of the Respondent who, on 10th August, 2020 filed his notice

of representative as required by Section 56(b) of the Labour Institutions

Act [Cap 300 R.E 2019] read together with Rule 43(1) of the Labour Court

Rules, GN. 106 of 2007 and the said Anthony Kombe. I have noted as I did

from the beginning that there is no notice in this file to show that the said

Anthony Kombe represents the Applicant. I have also noted that there is

no notice showing that the alleged Matrona Kiwale has a notice to

represent the Applicant. More worse, even Victoria Mgonja advocate has

no notice herein. It is true that, Section 56 of Cap 300 R.E 2019 gives

options as to who may enter appearance before this court but this has to

be read together with Rule 43 of GN. 106 of 2007. The Applicant not only

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has failed to comply with Rule 43 but has failed to enter appearance. This

court observed in the Labour Revision Application No. 274 of Steelcom

Limited Vs. Ismail Issa Mbago and 30 others (unreported) that:-

"Court cannot keep adjourning this file and return the same in the court shelves. Applicant has turned this court into library of his client case file. Court's duty is to hear and determine disputes."

W:-.. &

In another case of Shirika la Usafiri Dar es Salaam Ltd Vs.

Abbas Kingwamba and others, Labour Revision Application number 335

of 2018, this court while expressing the importance of right to be heard

and a need of parties to appear before court held

"....I am aware of the principle of natural justice that demand parties

to be given right to be heard, but such rights has to go along with each of

parties obligations. Parties who does not appear on a date fixed for hearing having notice, Jeopadaze his/her valued rights of being heard. Court cannot wait for a part to attend hearing, as he/she pleases otherwise court will be accountable for delaying proceedings at the

detriment of the parties."$

% OcyNow, on the application at hand, was field on 16th June, 2020. Since

then, the Applicant has failed to comply with Section 56 of Cap.300 R.E

2019 (Supra) read together with Rule 43(1) and (2) both of the Labour

Court Rules, GN. 106 of 2007. Proceedings shows that, on 6th August, 2020

when this application was called before I.D. Aboud, J, one Ms. Victoria

Mgonja advocate appeared on behalf of the Applicant as a result it was

schedule for mention on 07th October, 2020. On 7th October, 2020, the

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same counsel appeared before Deputy Registrar thereafter it was

scheduled on 10th December, 2020 of which no body appeared on behalf of

the Applicant. On 21st December, 2020 one Anthony Kombe appeared

purporting to be personal representative of the Applicant and Hamza

Rajabu as personal representative of the Respondent but hearing did not

proceed as a result it was scheduled to 18th March, 2021. On 18th March,

2021 only Hamza Rajabu for the Respondent entered appearance. Nothing

was said to the court for non-appearance of the said Anthony Kombe or

Victoria Mgonja for the Applicant. The application was scheduled for

hearing on 6th July, 2021 of which no body appeared for the Applicant. As

indicated herein above, Victoria Mgonja, advocate was informed to appear

but she has failed. Instead, appeared Anthony Kombe alleging to be

personal representative of the Applicant as he did on previous day when he

entered appearance without notice of representation. After raising the

issue of his competence to appear before me, he asked for adjournment to

file notice of representation. It is my settled opinion that, the said Anthony

Kombe, Victoria Mgonja, advocate and the Applicant has no intention to

pursue this application.This is because, it is more than a year without them

filing notice of representation and without appearance of the Applicant in

person if he so wished. I am of further opinion that, their intention is to

frustrate execution of the Award that was issued in favour of the

Respondent which is why, they have filed application objecting execution

which is scheduled for ruling on 28th July, 2021. For all these, I associate

myself with decisions of this court in the case of Shirika la Usafiri Dar es

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Salaam (supra) that this court cannot wait the Applicant to appear in court

as it pleases him while delaying proceedings.

All said and done, I have found no justification for adjournment

prayed by Mr. Anthony Kombe to file notice of representation which he has

failed for almost one year but appearing in court as if he has capacity to

appear. I therefore dismiss this application for want of prosecution. Order

accordingly.

■ % •.

B.E.K.Mg'anga

JUDGE

08/07/2021

Ruling delivered in the presence of Hamza Rajabu, Personal

Representative of the Respondent, Cotrida Crispin Haule the Respondent

and Anthony Kombe the purported representative of the Applicant but in

the absence of the Applicant.

08/07/2021

ganga

JUDGE

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