ANAEL THOMAS 2

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA

AT MWANZA MISC. LABOUR APPLICATION NO. 28117 OF 2024 ANAEL THOMAS MALESO............................................... APPLICANT

VERSUS NMB BANK PLC...........................................................RESPONDENT

RULING 21/11 & 6 /12/2024 ROBERT. J:- In the annals of judicial history, rarely does a court encounter an application supported by an array of affidavits that narrate events so peculiar, personal, and persuasive that one cannot help but pause to appreciate the human drama entwined with legal processes. This is one such case. The applicant, Anael Thomas Maleso, filed this application under Order IX Rule 3 of the Civil Procedure Code, Cap. 33 R.E. 2019, seeking to set aside this Court's dismissal order dated 10th October 2024. The dismissal arose from Misc. Labour Application No. 16574 of 2024, where the applicant sought an extension of time to file a notice of appeal. The applicant's counsel, Mr. Emmanuel John, in his oral submission, took the Court on a journey involving a family function, a bride price ceremony, a last-minute summons to Dar es Salaam, and an unfortunate restroom break. Let us unpack this saga. Mr. Emmanuel John, had dutifully prepared to appear for the hearing of Misc. Labour Application No. 16574 of 2024. However, the winds of culture intervened. On 9th October, 2024, around midday, Mr. John received an urgent call from his father, Michael John, informing him that his presence was indispensable at a bride price ceremony in Dar es Salaam for his fiancee, one Lucia Lucas. Despite having initially delegated this cultural duty to his father, the family of the

bride insisted on his personal attendance. Faced with the dilemma of choosing between cultural obligations and professional duty, Mr. John chose love and boarded a bus to Dar es Salaam, as evidenced by Annexures A1 and A2. In his absence, he entrusted the case to a representative from FIBUCA Trade Union, one Justine Massana. Unfortunately, fate had other plans, Mr. Massana, while answering nature's call, missed the court session, leading to the dismissal of the matter for non- appearance. 2 The Applicant presented affidavits from Mr. John, his father Michael John, his fiancee Lucia Lucas, and Mr. Massana, all corroborating this extraordinary sequence of events. The applicant now pleads for this Court's mercy, armed with a bus ticket to Dar es Salaam (Exhibit A l), a bus ticket back to Mwanza (Exhibit A2), and four affidavits that confirm the chronology of events from multiple perspectives— his own, his fiancee's, his father's, and Mr. Massana's. In considering this application, the Court is guided by the principle that the right to be heard is sacrosanct. A dismissal for non-appearance, while necessary to prevent abuse of process, should not amount to an insurmountable barrier where the applicant demonstrates good cause for non-appearance. The affidavits paint a vivid picture of circumstances beyond the applicant's counsel's control. It is not every day that a case is adjourned

due to the cultural significance of a bride price ceremony. However, the Court is mindful of the realities of life and the inevitable overlap of professional and personal commitments. 3 The respondent, represented by Mr. Galati Mwatembe, has graciously chosen not to oppose the application. This further underscores the lack of prejudice to the respondent should this Court exercise its discretion in favor of the applicant. In light of the foregoing, and in the spirit of preserving justice over procedural technicalities, this application is hereby granted. The dismissal order dated 10th October 2024 in Misc. Labour Application No. 16574 of 2024 is set aside. The matter is restored for hearing on a date to be fixed and notified to the parties by the Deputy Registrar. As for Mr. Emmanuel John, let this serve as a gentle reminder to prioritize his legal commitments even amidst life's joyous moments. However, the Court cannot help but commend his ingenuity in marshaling affidavits from his father, fiancee, and trade union representative—a family affair indeed!