The Project Manager Alcatel Contracting GmbH vs The Labour Officer on behalf of Shaban B. Mtenguzi (Misc. Civil Application No. 20 of 1998) [1998] TZHC 2490 (4 September 1998)

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. IN THE HIGH COURT OF TANZANIA AT MBEYA MISC. CIVIL APPLICATION NO. 20 OF 1998 (Original from Employment Cause No. 4 of 1998 of the Resident Magistrate's Court of Meya Before: B.H. MANDAWA - ;Resident Magistrate) THE PROJECT MANAGER ) ALCATEL CONTRACTING GMBH) 0 • 0 •·• 0 0 • •• 0 Versus THE LABOUR OFFICER 1 ) ON BEHALF OF SHABAN B. MTENGUZI) RULII'JG APPLICANT RESPONDENT On 19.8.98 the N.otor Vehicle of the applicant, THE PROJECT MANAGER ALCATEL CONTRACTING GMBH, 'Registration No. TZJ 2391, make NISSAN PATROL, was .attached by a court broker consequent upon a ruling delivered .. on 17.8.98 by the Resident Hagistrates 1 Court_ of Mbeya (B.H. Mandawa, SRM) in. an application for Attachment Before ·Jud~~ent preferred by a !.abour Officer, Mr. Geofey Jonas, on behalf of the respondent/plaintiff, Shaban B. ?-1tenguzi, in connection with Resident Magistrates~ Court Eployment .Cause N. 4 of 1998. The ruling aggrieved te applicant, hence this application which was :preferred and argued before me try his leared advocat~, Mr. Hwakilasa, and resisted by Mr. Jonas. 'l'his application was preferred under the provisions of· Section 79 of the Civil.Procedure Code, hereinafter called -~~~2..~~, and Section ·44(1)(a) a.'1d (b) of the Magistrates' Courts Act 1984, .:hereinafter called _th~ __ Ati, and it is for:

1. Revision of the Ruling., of

Release from a ttachmenl the mater vehicle •. Costs. The application is supported by an affidavit sworn by Mr. Mwakila·sa, and resisted by a counter-affidavit sworn by .the respondent. This is the back- ground history to the matter.

• 2 - On 15.6.98 Mr. Jonas, on behalf of the respondent, preferred Employment Cause No. 4 of 1998 before t11·e Resident Magistrates' Court of Mbeya. It was . . . for a grand total sum of shs. 9,173 1 720/=o The respondent had been an employee of the applica.nto In that Employment Cause the applicant was as well aqvocated for by Mr. Viwakilasa·. On that same day ( 15.6.98), Mr. Jonas filed an application for Attachment' before judgment under Order XXXV! Rule 6 of the Codee The application was py way of Chamber Summons and it was Miscellaneous I Civil Application No.· 6 ot 1998, but in Employment Cause No. 4 of 1998. .It was supported by an affidavit of the respondent and resisted by a counter-affidavit of Mre Mwakilasa. On the day the Chamber Application was to be heard (15.7.98) Jvir. Mwakilasa raised a preliminary point of objection that the trial court lacked jurisdiction to try the suit. The trial court heard both Mr. Mwakilasa and l-1r. Jonas on this point and overruled Mr. Mwakilasa's conten.tion in a Ruling deiivered on 29.7.98 and directed that the hearing would proceed on a date to be fixed with consent of the parties. That ruling aggrieved Mr. Mwakilasa who, in consequence, filed an application to this Court on 7.8.98 for its revision. It was High Court. Miscellaneous Civil Application No. 19 of 1998, which is yet to be heard, a.n.d duly notified the trial court and Mr. Jonas. Ori 7.8.98 Mro Mwakilasa was served with a hearing notice requiring him to· appear· in couf:t on ?2!-~~J.~ for the hearing of Employment Cause No. 4 of 1998. The hearing riotice, whic4 I shall call the .first ._in noice, did not mention Misc. Giil Application No. 6 of 1998 or in any othe:r maY].rler refer to it., The learned advocate then returned the first hearing notice, which had been issued on 5.8.98, to· the trial court with an indorsement: 11 There is an , application in the High Court for Revision. Pl ease 1 et us wait the result of the. revision. p~fore fixing hearing date. ~ 1 On. 13.8 .• 98 Mr. Mwakilasa received another notice which had been issued the previous day (12.8.98). I shall call it the second notice. Like the 1 first hearing notice, the second notice did not make any reference to Misco Civil Application No. 6 of 1998. It cited Employment Ca.use No. 1

• of 1998. ooooooc:io,:1aeoo•/ 3

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• 3 - Worse, it did not say the suit was set down for what purposeo That place was left blank~ It simply required Mr. Mwakilasa to appear in court on 13.80 98, . . that is, the day he received the notice. Again Mro Mwakilasa returned the second notice to the trial court with an indorsemen.t: : 1 on 708.98 copy of my letter ·reference No. THI'li/EMP/4/98/B was sent to you on 7.8.98 intimating that an application of the case/your Ruling l"ad been filed to the High Court. How can the case.proceed before hearing the said application? 11 ·This was not takeh lightly by the learned trial magistrate who recorded-thus below Mr. Mwakilasa I s indorsement: 11 NB I hve regrettably noted this uncalled.for I I · resnonded . behaviour conduct action of the learned Senior Counsel who - -::.c<-.,.., to this summons. However I take it as duly/good service. 11 It then trc3.nspired from the trial court's recor·d that _on 11.8.98 Mr. Jos had applied for the ex-part_e / -hearrn1 of his application for Attach.ent before judgment on the ground that the applicant had been duly served. The trial magistrate then made an order of ,. ex-parte hearing on 13.8.98 at 10.00 AM. ·0n 13.8.98 Mr. Jonas was heard ex-parte, and in the Ruling of 17.8.98 the application for attachment before judgment was granted as prayed, and an order for the attachment of the relevant_ motor vehicle was issued to a court broker the next day (18.8.98) with·the result that the motor vehicle was attached the.next day (19.8.98) notwithtanding that. the· warrant were to be returned to the trial court on or before 16!..2..!,:199_8. Mr. Mwakilasa averred in his affidavit that _the trkl resident magistrate erred in hearing the application for attachment before judgm~nt without the respondent being heard. With respect, I agree with. the learned advocate. There was no proper service of a proper hearing notice on either the applicant or, his learned advocate. The first he_aring .I.lotice served on Hr. Mwakilasa on 7.8.98 was defective in that it failed to state affirmatively that it was in respect of Miscellaneous Civil Application No. 6 of 1998 for Attachment before \• judgment. That hearing notice was not for 13.8.98. It was, for 20.8098 which was yet to come. It was not issued on the basis ·of an order to that effect made by the trial magistrate in the trial court's record4 It appears to have • o e o o o • o o o o/

• 4 - been issued on whims or arbitrarilyo The matter was worse with the s_econd nottce served on Mro Mwakilasa on the day the apr,lication was heard, that is, on 138o98o !'irst,the service ·of·-. that notice was defective in that it~ likewise,- failed to state affirmatively that it was in respect of the application for attachment before judgmento It · as well fail ea. to state affirmatively the p.μrpos9 for which Mr o Mwakilasa' s appearance in court was required. ~, the issuing of the second notice was unnecessary. There was already an .order for ex·-parte hearing on 13.8098 made two days earlier (1108.98)0 Indeed that notice was issued after the order for ex-parte hearing was made. No reasons were given·for c.;hanging the hearing date from 2008.98 to ·13.8.98. Mr. Jonas had not on 11.8.98 specifically asked for ex-parte hearing O'h that date. Mr. Jonas t(}ld the trial magistrate on' • 11.8.98 that Mr. i''iwakilasa had been duly servedo But it was for 20.8098 d not for 13.8.98. In the circumstances, it was a matter for concern, therefore, that the trial magistrate set 1308098 as the dat for ex-parte hearing. That date, quite obviously, was set arbitrarily, and the setting could not have been the result of a proper or -judicial exercise of- discretion. And .:t:.1l!rd, the second notice was clearly not meant for complianceo It·was a·sham meanf for window dressing., Tnis would account for the most unreasonably shor't time, if any, afforded to Mr.· ·Mwakilasa for compliance. Inde_ed it was impossible for Mr. Mwakilasa to have· complied with it. A party is entitled .to a.' sufficient as well as· reasoriable time for compliance with a court proces·s. The proximity -in time of the date of compliance to the date of service·inust be sufficient as well as reasonableo A court can proceed to deal with. a matter ex-pa.rte only where there is proof that there was service of a proper summons on the absent partyo This was not established to have been the case hereo The right to be heard before being judged is fundamental. It is trite law that justice needs to be done.not only at the efd of the case, but throughout the t- ease, by giving the parties·to_ the case' full oportunity to contribute towards the outcome of ·their case. The_: two rules which are the essential characteristics ,. I ooe•oc•••/ 5

.. 5 of what is often c·alled ,natural justice is the rule against bias (impartiality) and the right to be heard. (fairness) o If a party is for i..rJ.sufficient ground deprived •f the right to be heard, and a decisi-On adverse· to. hi111 is ,reached, the decision will be quashed on appeal or in revision. • For all the foregoing reasons; I am satisfied that the trial court had acted in breach of the fundamental rule of fair play which is basically ,r1hat justice is all about •.. There is one thing I would like to say in conclusion. It does no·t occur to me in the circumstances that it was wise and prudent for' the trial court to have undertaken any hearing in connection with Employment Cause No o ·. 4 of· 1998 notwithstanding its ruling that it had jurisdicttofi to try the suito · The matter at issue concerned juri~_diction~ It was the very power. of the trial court tp entertain the suit ,which was .being challenged in revision through this Court's Miscellaneous Civil Application No. 19 of 1998 which was, and still is, yet to be heard. ·I would have thought that ordi1'ary common sense, let alone proper a>J.d smooth, administration of justice, .would have required the final determination of that basic question of jur~.sdictbn first 1 and thereafter confidently undertake the hearing, in the event that the question would have finally been answered in the affirmative. For, if a. 0ourt assumes jurisdiction. which, by reason of its nature and the subject-matter of the suit 9 is npt vested in it by law, the High Cour.t to which such court is subordinate has power·under Section 79(1)(a) of the Code to interfere in revision, and in' the event that·. there would have been a trial, it would have resu.lted in unnecessary waste of time and money, and it would certainly not have made for the confidence upo_ri which justice is rooted. I accordingly 'j in revision" _ .: ,v · _ allow the application,' quash the trial courtvs ruling of ·17.8098, set aside the order for attachment before I judgment, a."1.cl. hereby order the immediate and u."1.co1ditional release from attach- .""- ... ··-·.,..,·- '-· ·-·---···----·-~- ment the motor vehicle registration Noe TZJ 2391 make Nissan .Patrol. The court

• ..... .._ ...... , ... • .. H .... , ·••-•••"" ......... ••· ►•• ·••••·-•.··•·•-- ·••·••'"" •, ...... ,~,...,,.., ............ u.- ... ... ..1., •. _. ....... _ ..... • •--··•·· ··• broker to pursue the question of his fees and charges with the Senior Resident Magistrate Incrge Mbeya who happens to be the trial Magistrate. The applicant I I

6 to have his costs of this application in any event, and L~mediate steps be taken to expedite the hearing of this Court's :·liscelJ.an:eous· Civil Application AT HBEYA. For Applicant: Mr. Mwakilasa, Ad.voca te. For Respondent: Mro Jonas, labour Officer. B,P. MOSHI JUDGE.