20091023 TZHC Tanga

.·c;j .. ~--._ ./ IN THE HIGH COURT OF TANZANIA ~ ATTANGA ' ~p/' MISC. CIVIL APPUCATION NO. 6 Of 2009 (Originating from High Court-Tanga Misc. _· Civil Application No.22/09) ~(~ ALLY HATIBU KIROBOTO l(J . _(Legal Representative of Estate }· .....................APPLICANT . . of the late ZUBERI KIROBOTO) . . VERSUS MWANAUKUTA ZUBERI..................................... RESPONDENT Date oflast order: 16/9/09 Date ofRuling: 23/10/09 RULING . Teemba,.J. The application before. this court was brought under Part Ill item 2 of the Schedule of the Law of Limitation Act, Cap 89 R.E. 2002; SECTION 95 AN0 . Order XLIII Rule 2 of th~ Civil Procedure Code Cap 33 ·R.E. 2002. In this· matter the applicant is seeking to move the c~urt for the following orders: a)" Thatthis Honourable Court be pleased to set aside its dismissal order dated 25/02/2009; b) That this Honourable Court may be pleased to restore the Applicant's Application for extension of time within which to file an application for leave to appeal to the Court ofAppeal · filed in this court on 21" August, 2008; .c) Costs of this application be provided for; and ... __ . -... .,,. d) Any other order this Honourable Court may deem just to grant" ,, ,• ... ._ The application is supported by an affidavit deponed .by Ally H~tibu Kiroboto, the applicant. .The historical background of ,the sequence o events -. J . giving rise to this application is set out in the affidavit. It is desirable to outline the facts in brief. . ' · It is common ground that the Applicant was also the Applicant in the Misc. Civil Application No.22 of 2008 which was dismissed by this Court (Hon. Mussa; J.) on 25 th February 2009 for non-appearance. In that application, the applicant was praying for an extension of' time upon which to apply for leave to appeal to the Court of Appeal. It is also common that the hearing of the said application, was fixed for 25th February 2009. It is deponed by the applicant that on 25 th February 2009 he came to court and consulted. a court clerk, one Godfrey, to see if the matter was causelisted a~d he was told that his case was scheduled to come on the next day. That, When he came on 26th February 2009, the same court clerk told him that the cask was called. on 25th February 2009 and it. was ' . · dismissed for non-appearance. The applicant claimed in his· affidavit that, it is ' from the information -of the court clerk, whom he believed and relied on his information that has caused his. application to be dismissed.· The applicant denied any element of negligence or abuse of court order on his part.. ' The respondent filed her counter-affidavit and she vehemently opposed the application. She averred that when the application came for mention on 5th November 2008, the· applicant was personally present and the court ordered that the application to come for hearing on 25th February 2009. That, neither the · applicant nor his counsel appeared to prosecute the hearing of the application. The respondent also averred that the applicant .cooked the- allegations against the court clerk tq justify his laxity and negligence, as the clerk nc;1med was not for the Honourable Justice Mussa who dismissed the application. The applicant · was also challenged for failure to attach the affidavit of the cl.erk to support his - claims. In the absence of any evidence to support the alleged wrong information, the respondent was of views that, the application be dismissed. 2 ' At the hearing of this application,_ Mr. Mwarabu, learn~d counsel appeared and argued the application for _the Applicant. Mr. Sc:1ngawe, learned advocate, represented the respondents. Mr. Mwarabu reiterated. that the dismissal of the application was wholly attributed by mis~information obtained from the court 4 .clerk. He submitted that the applicant acted promptly without any delay after the dismissal. He added that the court clerk was asked to swear an affidavit to explain the situ~tion but he refused. Mr. Sangawe submitted correctly, in my opinion, that if the applicant was in court on the day when the. hearing date was fixed, then there is no good · reason why he should go to Godfrey - the court clerk who was not even the clerk for the Judge who was presiding over that application. In addition, Mr. Sangawe submitted that the application is incompetent because the affidavit of the court clerk did not accompany this application. He cited the case of John ·chuwa vs Antony Ciza (1992) T.L~R. 233 where Ramadhani JA., as he then was, dismissed the application because there was no affidavit of the cashier who failed to issue a receipt in time. In the instant application, there is an argument . that the applicant consulted the court clerk to swear an affidavit but he refused. This is a point of contention between the parties in this application. The affidavit of the alleged court clerk is necessary and material in this application. Mr. Mwarabu submitted that the court has ,discretion to grant the prayers .sought in the application because the applicant acted promptly to seek the remedy after discovering the mistake or omission. He made reference to. the case of Michael Lessani Kweka vs John Eliafye (1997) T.L.R. 152 where the · court was satisfied that the applicant had shown reasonable diligence in correcting the error immediately upon discovery. In this case the applicant was granted an extension of time to serve the respondent with a copy of notice of appeal and a letter to the Registrar applying for. a. copy of court proceedings following the advocate's clerk omission to do so . 3 I have no doubt that the instant application was filed in court a·fter about 24 days from the . date of dismissal. I do agree that the applicant had shown reason.able diligence in filing this application but the main question remains. Is . there a good and sufficient reason for the court to grant the application. In my considered opinion, the answer is No. In the absence of any proof that the applicant was mis-informed about the hearing date, of which he was aware, I decline to grant the application. The same is dismissed with costs. · · ~ ,R.A. TEEMBA, J. 23/10/2009 The Ruling is delivered in the presence of both parties. Mr. Sangawe, learned R.A. TEEMBA, J•. 20/11/2009 4 (