bahati mussa hamisi mtopa vs salum rashid 2019 tzca 69 8 february 2019

VERSUS (,;\.PP}18i::rtion for Restoration of Civil Reference No. 1..5 of 2017 whkh ~N2S; disrnlssed by the Court of Appeal of Tanzania.) dated the "th day of rl'iarch, 2018 in ~ivHAw~kation No, 15 of 201.7 is an application for restoration in which the applicant is Reference No. 15 of 2017 (the Reference) which was the Court (1\1jasiri, f\'1ugasha and LHa,. JJA) on 7/3/2018 The application is rr'(i:?oe under ;:Zufe 63(1) (3) and (4) of the Tanzania Court of Appeal Rules, 2009 (the P,ules) and is supported by the SV\f()Hi affidavits of anc r.,.tl·,::" I ' '. \\fhen the application was called on for hearing before us on 7/11/2018, only 1'1s. Rwebanqira, learned advocate for the applicant, None appear-eel for the respondent desotte belnq duly served with the notice of hearing. On that account, f',1s, Rwebanclra. craved. under Rule 63(2) of the Rules, the hearino of the - I ~ # , •. " " ••._ application to proceed in the absence of the respondent. In the absence of any notice from the respondent explaining what haci prevented him or his advocate from entering appearance, we grant(:;~d the prayer and the hearing of the application proceeded In the absence of the respondent under Rule 63(2) of the Rules. Amplifvinq on the grounds upon which the application is based, ;vis. Ftvvebangira reiterated what she had earlier on submitted in ~h'fjtten submission in support of the apptication

which she had filed Court em 5/6/2018 and which she prayed to be adopted as part. of , - . .:~UDITHSSlons. In the submissions she had contended that 2 not , advocate who inacvertentty and mistakenly noted that the notice fer " hearlng served to her to have indicated that the hearinq of the appi'catlon for reference would be at rvltwara where it was previously scheduled to be heard instead of Dar es Salaam. She stated that based on that understanding she relayed that information to her client (the appiicant) and as a result the applicant travelled to Mtwara onl'v to find that no Court session was in progress then thereat. She firmlv, as she did in her affidavit in support of the application, contended that even herself was due to travel to Mtwara but for the TA\NI A • l'f.Ji._' "( whirh ' •.. " •. ' .••••..•• 11 qranted 'I.. ,'-' ••.••••••••.••• t-hp 11- applicant •••.•• t""" I ••..• I ••.. leqa' aid service 1- • • _.!J f failure t-n t. ,~_ facilitate her with the air ticket. She further arqued that the applicant informed her the confusion that had arisen late on the material date for her to rush to the Court in Dar es Salaam and enter appearance. She further contended that the non-appearance on 7/3/2018 was not occasioned by negligence or lack of care of the applicant or her advocate but out of a human error committed by the advocate in readinq the summons for hearing served on

her. She accordingly 3 . " 'DC:. CCC3S!OneC '/111: '. . i" to tne , responoent. , '1\ j-4,CCoromQ '" to l .".- _0 ner, restoration of' Clvif Reference No. 15 of 2017 'NiH facilitate substantive justice be done to the parties by according them opportunity to be heard. \Ne have given due consideration to Hs. Rwebanqire's arguments in support of the application. It is also apparent that the applicant's application for reference was dismissed by the Court for want of appearance of both parties on 7/3/2018. And, as hinted above, the applicant is urging the Court to restore it. This application which is predicated under Rule 63(1) (3) (4) of the Rules whid!1 provides for only one major consideration for the grant or otherwise, that is, good cause be shown that prevented the applicant from appearing when the appltcation was called on for hearing. That RUlC! "llVhere an appticstion has been aistnissed under sub-rule (L) or alJawed under sub-rule (2), the party In whose absence the 4 Court {-, '-nc"-o"_':J the <--LI!. co /c.:JU.":,'.: ..."",-,fj'r,,;Cjo/,I ltd . It:: 0IUij!ILClU I J./:l ...• rioc ~. ':::rl'Y IICCI, 111..,1 01 _ , , " show that he vvas prevented by any sufficient cause trotn appearing 1;1/17el1 the application f;'v'as called 017 for heerina. Ii \:/Ve wiH consider the merits of this application while guided by the 300ve legal position. The mam consideration in the

oresent :::;•••.•• r c, ~ is therefore whether or not the applicant has shown that was prevented by any sufficient cause from entering appearance 7.l3/2018 when Civil Reference No. 15 of 2017 was called on for \jVe have gone through the entire application, written submission support of the application and the ora! submission by r,1s. RVIFebangira before us. The major and sale cause for non-appearance on, the date the application was called on for hearing advanced to us by Wls, Rwebangira is that she inadvertently and guided by the earlier 5 ;nistook the summons served to her to have indicated that the .~~:eference was to be heard at P,1twara. As a result she misdirected the applicant to attend at I\~twara after her arrangement to travel to }'ftwara had been turned down by TI-\VVL6. for want of requisite finance. As the applicant actually turned out at Mtvvara, she in fact attributed the mistake to be a human error which should not be borne by the innocent applicant who acted on her instructions. On the affidavital evidence by the applicant and 1\'15. Rwebangira and the arguments before us, the applicant and her advocate have shOVlin the steps they took after being served with the notice of !hearing and after realizing that the case was not scheduled for Neither of them stayed idle. The applicant travetled to iV1twara 'where the advocate had told her that the hearing would take

place only to find there was no Court session thereat. On ~he other hand, the advocate struggled to secure means to travel to fv'ttvvara but was unsuccessful and upon realizing so, wrote a letter to 'the applicant to personally enter appearance. On account of this 6 t: ,- ',,'; ' •• _.< ('~ '-' : , (..:. !~'j I. I- '-- t n I:." i r:::.; F~, \, .... ,, r C~ s I; \,J , C ',. ~.J " Ii ~ (-':.! 0' I (-'I" ,/ ~ . ,'--:-' '" cause. are however , - •• " .•.. ,_" \. ., f I " wnere such an error can amount cause, VVe find support m the Court's decision In the case of advocate /'/7/'0" '"ua. L: /-. ::;ti f or leek of diligence is not sufficient cause lor extension of tin/e. This has been held in nUl77erOUS decisions 0/ the Court and other similer jurisdictions. were cited by the appel/ants" advocate in his oral submisslon. But there are times, dependina on the overall circumstances surrounding the case/ where extension of time (nay be granted even where there C .. t;. /'5' some I \../ .. element e r t t L Ole ! oeatiaence it.:1 jj:::Jf::: ii j;_"."':) 1 ~~. b-)I the .If if- --., .d. +_.L., - /.... " t: (tVJ1f:-"·Ft .. , 7.11 ."' • .ru ge C/~ c uu; court I le/J.G ..1I'-i as ne L,-1'-/-.len ~vas/ l • -\ in Felix TUl'P'1bo Kisims: V~ l-rc Limited ifnd Another -- CAT Civit Application No.1 of J997 (unreported). It should be observed that the term "sufficient cause should not be interpreted

narrowly but H should be given a wide interpretation to encompass a/I reasons or causes which are outside the epplicsnrs power to control or influence resulting in delay in taking any necessarystep. In the instant case the respondent had done a/I that she could; leaving the metter to the hands of her advocate who had been assigned to her on legal aid In the arcumstences. while accepting that there were some elements of negligence by her counsel, in the circumstances of the esse, we join hand with our learned brother Mfa/i/a JA in the case cited supre, and hold that the learned counsels negligence constituted sufficient reason for 8 r ,~ ~ (/{":>j'a,Y' .1!::1 ._4..... . ina l'r)l, !oa[}lng Like in J.L'n' e-' (-;,~['_~OVI~ •• - cited - ca "P,' ,J _ ~l' he cr ,_ applicant . '- I~) at::' demonstrated J' l.eU :;"" ,:dx,/ve, upon being directed that the Reference will be heard bv, the ;;':~)urt at Mtwara by her advocate who was granted to her on legal aid! travelled to I'Vltvvara to attend the hearing of the application for ,';:derence on the scheduled date only to find the Court had no sessions thereat. She informed her advocate so but as it was already 1;:3Jte, the latter could not enter appearance in Dar es Salaam Registry i:l;;~here the application was set for hearlnq. \/'l/e find it unjust to impute t!\e advocate's mistake into the applicant. The applicant was wholly :tlnOcent.

She cannot, in the peculiar circumstances of this case, be brarned for the non-appearance when the application for reference ',Nas called on for hearing in Dar es Salaam. VVe, instead, hold it that n?ason constituted sufficient cause. VVe are of the view that, in situations like the one that obtained tJlis case, a distinction must be drawn between the negligence and rnistakes committed by the party and those committed by hrs/her 9 all that she was required to do. She was so innocent. Vve now move to consider ~v1s. Rwebanqira's contention that Sr}E: vI/as not negligent. In her firm view, the application used to be heard at lvltvvara and when she read the notice of hearing served to her, she firrnly believed that the application was to be heard at fV1twara 2n{] she duly informed her client, the applicant, and proceeded to make arranqernent to travel to Mtwara. Given these circumstances and the efforts made by Ms. Rwebangira to secure air ticket to Mtwara, we are inclined to agree that she committed a human error in reading notice of hearing. VVe borrow leaf from the persuasive decision of Court of Appeal of Kenya at Nairobi, in Githere v, Kimunqu [1976-· 1985] 1 EA 101 (CAK) which stated that: "That where there has been a bona fide mistake. and no damage has been done to the other side which cannot be sufficiently compensated by costs/ the court should lean towerds exercisinq its

discretion in such a way that no party is shut out from being heard/ 10 biunder on a point of law/ on the part of an advocate (il1e1uding that of his 'cterk), such as a tetture to take prescribed procedural steps or to take then? in due time. should be taken with a humane approach and not without sympethy For the parties/ end, in a proper easel such mistake {flay be a around to justify the court in exercising its discretion to realty the mistake if the interests a/justice so dictate/ because/ the door of justice is not closed merely because a mistake has been made by a person of experience who ought to have known bette" and there is nothing in the nature of such a mistske tv exclude it from being a proper ground for putting things right in the interests of justice and without dan7age to the other side; but whether the matter shall be so treated must depend upon the facts of each individual case. That the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress, and 11 , t)j/, tlne rutes. . / ' . wtucn are intenoed as aenerst ' ! '" ~ , ~ , J ' rates 01' proceaure. as to De compettea to do that which ;Nil! cause injustice in a particular esse, and ttits is a principle which a court must remember when jud/dally exercising its discretionary powers, If Vile, like in the above case, think that the error committed

by applicant's learned counsel was purely a human error. VVe think that if this application is granted no serious damage will be done to the respondent who, as the record loudly speaks out, was also not in attendance _ when v~ I _ the Reference ( ..• L.;,I"",1luO C I~, was dismissed .;;J I .::> ,_ • Given the above stated circumstances and guided by the spirit , that there is need for achieving substantive justice which requires the parties be given opportunity to litigate their rights to a conclusive end [see Zanzibar Shipping Corporation "if. i\>1kunazini General Traders, Civil Application No.3 of 2.011 (unreportedj], we find that the application has merits. We accordingly hold that the applicant has 12 ·,_ •..•.. '•... ~ \ . .1; I. ,-,', .'1~-a Pj,··I ,.._. ~,. ,. •••..• t"~.~.... • ,tt .- . I-""~ ,JJ·_'C)i C-lt'\i • ·11 f •.••• -,' 'r'~ I,. •••••••••• .....-., ~ :r, t, '\ "':' •l {j the aforegoinq reasons, we grant the application 15 of 2017 is hereby restored, Dl\TED at Dt\.R ES Sl.\LAAr v1 this 8th day of February,2019. A. G. MVVARIJA :JUSTICE OF APPEAL S. A. LILA

JUSTICE OF APPEAL R. K. MKUYE Ju~rICE 91= APP_~Ab I certify that this is a true copy of the original S. J. KAINDA ----'

DEPUTY REGISTRAR COURT OF APPEAl.. -I - .L5