20090924 TZHC Arusha

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CML CA.SE NO. 93 OF· 2000 DYNAMIC DRILLERS LTD ................................ APPELLANT

VERSUS MICHAEL MJUMBE AND ANOTHER ............. . RESPONDENT. Date of last order 10/9/08 Date of judgment 24/09/09 ·

RULING MWARIJA, J. On 21/6/2007, the suit was · dismissed for non- appearance of the plaintiff or its counsel. It was then ordered that the counter claii:n be proved ex-parte against the plaintiff. ··) The learned counsel for the plaintiff, Mr. Masaka then filed an application for setting aside the order of the court which granted the defendant's prayer to proceed ex-parte. The defendant did not resist the application and therefore the ,.. The learned counsel for the plaintiff filed another application for setting aside the order dismissing the suit. The application which was filed on 27/6/2007 i~ supported by . . affidavits sworn by the learned counsel and one Proscbvia ' .. < Nihongataile, and intern in the learned counsel's law firm. I I They have both sworn that on the 21 st day of June, 2007 when I ' the. suit was dismissed, the learned cbuns.el for the plaintiff ! I was appeanng m another· case before Luanda, J in: the .' Commercial Court. • i Ms. Sheikh, learned counsel for the defendant couldI not file a counter-affidavit. When the application was called for I hearing on 31/3/2008, she prayed for leave to file the af~davit '. ' . and was granted time to do so by 8/4/2008. . Until on l 11/8/2008 when the application came for• hearing,· the I I counter-affidavit ·had ·not . been filed. Ms Sheikh learned ' ' I counsel has prayed that she be allowed to file the affidavit as

it I was already prepared. She also prayed for time so th~.t she ! could produce a proof on the status of the windmg up I proceedings which according to her were filed an 10/4/2004. When she appeared on 15/8/2008, the learned c©unsel _ _ informed the court that although she was informed th/at the I winding up petition is No. 72 of 2000, the status :of the petition was not yet clear and thus prayed for more· time to 2 ascertain the position. Time was extended to 28/8/2008 but she could not appear on that date. Mr.Masaka then prayed that the court proceed to rh~e a ruling on this application. He submitted that since the defendant has not filed a counter affidavit, the court should consider to grant his application. From the sequence of facts as outlined above, there is no gainsaying that to give the learned counsel for the defendant another chan~e of filing a counter affidavit would not suit the best interests of justice. The prayer by Ms. Sheik for extension of time is therefore refused. Mr Masaka has asked that on the failure by the defendant to file counter-affidavit, his application should be. granted. I think the application ought to be heard before any decision is made. That prayer is therefore also refused and the application shall proceed to hearing. \ A.G~ARIJA

JUDGE 24/9/09 3 24/09/09 Coram: Hon A.g. Mwarija, ~- · For the plaintiff · For the 1st Defendant For the 2 nd Defendant ...... Absent CC: Butahe Ruling delivered, Parties to be notified accordingly. A.G. Mwarija

JUDGE 24/09/09 Order: Hearing 27 / 11/09 Parties to be notified. A.dlklwarija

JUDGE 24/09/09 4