20191212 TZHC Dar es Salaam 1

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA .1 (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPL. NO. 452 OF 2017 (Arising from Civil Case No. 187 of 2011) A. M COACH LIMITED----------------------------------------- APPLICANT VERSUS SCANIA FINANCE (SA) PTY LTD------------------------- RESPONDENT RULING -MUTUNGI, J. The applicant A. M COACH LIMITED herein had the following prayers: - 1. That this honorable court be pleased to set aside the Ex-parte order dated 1Oth July, 201 7 which permitted the respondent to prove his case Ex-parte, instead the case be heard lnter-partes. 11. That the intended Ex-parte judgment be vacated. 111. Cost to follow the event 1v. Any other relief (s) as this honorable court shall deem just and necessary to grant. The application is made under order IX Rule 13 { 1} of the Civil Procedure Code, Cap. 33 R.E 2002 and supported by an Affidavit dully sworn by him. The application was argued by way of oral submissions, Mr. Raphael David, learned counsel appeared for the applicant, and the Respondent was dully represented by Mr. Alton Msumi, learned Counsel. Mr. Raphael David for applicant in his submission, adopted the Affidavit as part of his submission and stated that, the matter came for hearing on 10/07/2017 on which {Mkasimongwa} the applicant's counsel was supposed to appear for hearing on that particular date. Unfortunately, on the same date he was appearing before Wambura J. Hence he could not appear on time and defend the case. Thereafter he found the case had proceeded Ex-parte. He submitted that the sole reason for his nonappearance was his appearance before Wambura J, as he could not appear before two Judges at the same time, prudence demands that he could not appear before a Junior Judge leaving the senior Judge aside. He prayed in view of the above, the ex-parte hearing order be set aside with costs. 2 The respondent on the other hand in contesting the application, adopted his counter Affidavit as part of his submission to the effect that, if the applicant was appearing before another court, he would have resorted to another practical way of notify the court by committing a letter to the court or by sending another advocate or sending any staff from his office to hold his brief. This was a third time for his non- appearance without any notification to court. The copy of proceedings evidencing the applicant's counsel was 1n another court does not oust the responsibility of the Advocate to enter appearance. The respondent's counsel proceeded to pray for dismissal of the application. He concluded the applicant's counsel deliberate absence is not maintainable citing the case of AMINA RASHID VS MOHINDER SINGH AND ANOTHER 1986 TLR 196 (CA). In brief rejoinder the applicant's counsel, argued that appearing in another case in the High Court is sufficient reason, taking into account the seniority of judges. From the above arguments of both parties, the issue that follows is whether appearing before another Judge is sufficient reason for nonappearance, when that matter is 3 cOlled u-p for h-earing os provided under order ix rule 13 of the ;I Civil Procedure Code Cap. 33 R.E 2002. I have gone through the said order 1x rule 13 which provides: - " .. .In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit". [Emphasize mine] Reading from the cited provision in setting aside Ex-parte orders and or judgment, the applicant must prove he/she had been prevented by sufficient cause. In the present application, the applicant did not prove so. It was the advocates professional obligation to appear on behalf of his client or make such alternative arrangements as necessary 4 ti having known he was to appear before two judges. It is not proper for him to deliberately absent himself and then seek for setting aside the Ex-parte order. I accordingly hold that, the application to set aside the Ex-parte order has no merit. I proceed to dismiss the same with costs. ~ i1' / B. R. MUTUNGI JUDGE 12/12/2019 Ruling read this day of 12/12/2019 in absence of both parties dully notified. 'p :J I / B. R. MUTUNGI JUDGE 12/12/2019 Right of appeal explained. ,., r- 0 B. R. MUTUNGI JUDGE 12/12/2019 5