amri so ahmada kamugisha vs secretary of bakwata 2007 tzhc 203 31 may 2007

IN THE HIGH COURT OF TANZANIA AT TABORA. DC. CIVIL APPEAL NO. 15/2005 (Original Civil Case No. 11/2001 Maswa District Court) AMRI s/o AHMADA KAMUGISHA..........................APPLICANT Versus THE SECRETARY OF BAKWATA..........................RESPONDENT RULING 7th Nov. 06 & 31st May 07 MZIRAY. J. This is an application under order XXXIX rule 19 and section 95 of the Civil Procedure Code, 1966 by Amri s/o Hamada Kamugisha, the herein applicant, for restoration of Civil Appeal No. 2 of 2004 of this Court which was dismissed on 27/1/2005 for non-appearance of the applicant. The reasons for the sought order are contained in an affidavit deponed by the applicant. In the deponed affidavit of the applicant, particularly in paragraph 3 and 4, he attributes transport problems as the cause of his failure to attend court on 27/1/2003. He asserts that due to bad road damaged by rains he could not manage to arrive in Tabora on l 26/1/2005 ready for his case on 27/1/2003 but instead he had to spend a night in Nzega and leave the next morning which made him to arrive in Tabora at 10.30 am, only to find his case already dismissed. He produced photostat copies of tickets for his travel lings to support his assertion. It is on that basis he ask for his appeal to be admitted. The averments in the deponed affidavit have been strongly opposed in the respondent’s counter- affidavit. Even the genuiness of the photostat copies of travelling tickets have been questioned on account of the fact that they do not bear the name of the applicant. In the end the respondent prays for the dismissal of the application with costs. Under order XXXIX rule 19 the Court can re-admit the appeal where it is proved that the applicant/appellant was prevented by sufficient cause from appearing when the appeal was called for hearing. Whether now the applicant has proved if he was prevented by sufficient cause. The applicant attributes presence of some barriers to route communication from Maswa to Tabora. If at all these problems existed, the applicant would have known them and arranged to travel earlier than expected. He would not have taken the risk of travelling late. It is to be noted 2 that the other party is also from Maswa but managed to arrive in Court punctually. It proves that he took all the necessary precautions to avoid being late. It cannot be said therefore that the applicant was prevented by sufficient cause from appearing when the appeal was called on for hearing. The applicant has attempted to exonerate himself by producing travelling tickets. The tickets annexed to the application are photostat copies and no originals were produced during the course of hearing this application. The Court cannot act on secondary evidence unless grounds are laid why the originals cannot be produced. Also, the photostat copy receipts does not bear the name of the applicant. The Court cannot therefore rely on these annextures. I dismiss this application with the usual consequences as to costs. JUDGE 31/5/2007 3 Right of appeal fully explained. 31/5/2007