association of fire protection and general dealers vs copcot cotton tradings t ltd 2006 tzhc 277 21 september 2006

IN THE HIGH COURT OF TANZANIA AT MWANZA MISC.CIVIL APPL. NO. 88 OF 2005 (Arising from HC.Civii Appeal No.40/2001) ASSOCIATION OF FIRE PROTECTION AND GENERAL DEALERS............................................ APPLICANT Versus COPCOT COTTON TRADING (T) LTD................. RESPONDENT 15/6/2006 & 21/9/2006 RULING RWEYEMAMU, J : Before me is an application by the applicant Association of Fire Protection & General Dealers for an order that:- " 777/5 Honourable court may be pleased to re-admit HC. Civil Appeal No. 40/2001 which was dismissed on $ h instant for non appearance " The application was presented through the late Rutaisire Advocate and resisted by the Respondent Copcot Cotton Trading (T) Ltd represented by Outa Advocate. The respondents vide their Counsel raised a PO, on ground that the affidavit supporting the application is defective for failure to show the name of the drawer, c/s 44(1) of the Advocates Act. In support, Mr. Outa referred me to the CAT decision in Albert Braganza and Another Vs Mrs. Flora Lourdin Braganza in CA (1992) TLR 306. In response, Mr. Rutaisire submitted that the affidavit showed the name of the firm and that was sufficient. If not, the defect did not occasion a miscarriage of justice and the court can order the name added by way of amendments, so that the pending matter can be heard on merit. The issue is whether the defect is fatal, and/or if this court can order the defect rectified. Mr. Outa's arguments are correct in terms of the cited decision. In that case, the court stated obiter that; "In my view Lyimo's documents might have been signed by him and it would appear true that "Maone Chambers" are infact his outfit But I am satisfied that the rules have not been complied with Section 44 o f......infact irregular." The question I have to decide is whether I have powers to act in the direction suggested by counsel, the late Rutaisire. I have gone through the cited case; the court proceeded to hear the matter despite finding that the respondent's preliminary objection was valid, because of peculiar circumstances of that case. By extrapolation of reasoning, I believe there are special circumstances in this case. Counsel who was representing the applicants was indisposed for some time, and he died shortly after responding to the PO in issue. I find it to be in the interest of justice to grant the applicant's prayer. I accordingly dismiss the PO, order; the application for re­ admission of the appeal to be heard; after the applicant files an amended affidavit with a proper jurat and drawer's name and address, within a period of one month from today. I make no order as to costs. Sgd: R. M. RWEYEMAMU JUDGE 21/ 9/2006 Date: 21/9/2006 Coram: Hon. R. M. Rweyemamu, J For Applicant: Mr. Rutaisire Adv. - (dead) For Respondent: Mr. Hezron Adv. - Absent B/Clerk: J. Lwiza Court: This ruling has scheduled for 10/8/2005 but I was on safari at the time. Ruling delivered this 21/9/2006. Parties to be notified because they were un aware of today's date. Sgd: R. M. RWEYEMAMU JUDGE 21/9/2006