JUDGMENT AZAM EDITED

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO 12493 OF 2024 (Originating from Civil Case No. 34 of 2024 before the Resident Magistrate Court of Dar es Salaam at Kisutu before Hon. R.Kabate.-PRM) AZAM DIGITAL BROADCAST LIMITED……………………………..…..…APPELLANT VERSUS AFRICA SWAHILI MEDIA LIMITED….….…….………….……………. RESPONDENT JUDGMENT 31st October & 19th November 2024 MWANGA, J. In the Resident Magistrate Court of Dar es Salaam at Kisutu, the appellant filed a Civil Case No. 34 of 2022 for breach of agreement on using multiplex Facilities. The case went to mediation, where on 17th August 2024, the same was set for mention to set a day for the Final pretrial conference. As per the record, on that date, both parties were absent; thus, the trial magistrate dismissed the case for non-appearance. That decision did not please the appellant, so he filed Misc. Civil Application No. 157 of 2023 sought the court to set aside the dismissal order. The trial magistrate dismissed the application because the appellant's 1 counsel failed to follow up on his case so that he could appear or send a lawyer to make good representation or at least notify the court through a letter or other means. Believing that justice was not done to her, the appellant filed the instant appeal containing two grounds of grievances going thus; i. The trial magistrate erred in law, holding that there was negligence on the applicant's Counsel. ii. The trial magistrate erred in law and fact in declining to set aside a dismissal order dated 17th August 2023 in respect of Civil Case No. 34 of 2022. Based on the above grounds, the appellant prayed before the court that the court allow the appeal with costs. It should be noted that the appeal was heard exparte against the respondent, as he failed to enter an appearance. Thus, the appellant prayed that the appeal be heard exparte, the prayer that was cordially granted. The appellant had a representation of Mr. Daibu Kambo, and disposal of the appeal took the form of written submission. Submitting on ground one, Mr. Kambo submitted that the trial magistrate erred in law, holding that there was negligence on the applicant's counsel. He contended that the appeal emanated from the trial court's 2 dismissal order, which was made on 17/08/2023 in Civil Case No. 34/2022 at the Resident Magistrate Court at Kisutu in which the ground for refusing to set aside was that Civil Case No. 34/2022 was dismissed for non- appearance of the parties. He contended that, prior to dismissal of the case, Civil Case No. 34/2022 was at the mediation stage before the mediator, and on 7/08/2023, the mediations were deemed to have failed due to the lapse of time as the respondent counsel and its principal officers did not appear in the mediation. She went on to submit that when the case was dismissed, the advocate for the appellant appeared at the High Court in Land Appeal No. 269/2023 before Muhina K, Judge, and that the summons was also submitted at the trial court. He elaborated that, in the trial court's record in Civil Case No. 34/2022, two advocates appeared for the appellant that is Daimu Kambo and Neema Masame, who, on 17/08/2023, had family matters and could not turn to the office. So, Daudi Kambo had to handle both issues, i.e, Land Appeal No. 269/2023 and Civil Case No. 34/2023. He said Land Appeal No. 269/2023 was scheduled for hearing at 10. a.m. while Civil Case No. 34/2022 was set at 1. 00 pm; thus, he thought he could handle both cases. However, legal issues arose in the land appeal and were complicated; hence, more time was consumed unexpectedly, and the hearing proceeded 3 to 1:40 pm/. So, when he went to Kisutu, he was informed that Civil Case No. 34/2022 was dismissed for no appearance. Mr. Kambo further submitted that he could not notify the trial court at Kisutu because his phone was switched off, and all those facts were brought to the attention of the trial magistrate. Still, in the end, it was found out that the appellant acted negligently. He argued that the trial record does not suggest that the advocate for the appellant has a habit of being absent in the case. He then concluded that it was wrong to say that the applicant's advocate was negligent as the reasons were beyond his control. On the second ground of appeal, Mr. Kambo contended that the trial court had misapplied the provision of order 1X rule 2 of the CPC, as the rule says that with no appearance of the parties, the case can be dismissed only if it is fixed for the hearing. However, the suit was set for mention to set the Final Pretrial Conference; neither party appeared, and he dismissed the case. I have keenly considered the submission by the appellant and give it the weight it deserves. I have also scrutinized the lower court record available before me. Starting with the first ground in which the appellant contends that the trial magistrate erred in law, holding that there was 4 negligence on the applicant's counsel, I believe that the same need not detain this court. I hold that the reasons the appellant counsel gave the trial magistrate for non-appearance were flimsy excuses and very trivial. The fact that his fellow advocate had a family matter and thus could not attend the court session was not proved; it was just a mere allegation, as the counsel did not include the affidavit of the said fellow advocate to prove that he could not attend the court session. In several cases, the importance of annexing an affidavit of the party mentioned in the affidavit for establishing a certain fact is stressed. For instance, in the case of Melchior Mmassy and Another vs. Everest Mmassy and Another Misc. Civil Application No. 614 of 2019, the court had this to say; “It is also a practice of this court that an assertion must be proved by an affidavit of a person alleged to have given the information about the status of the case”. Further, the court in the case of NBC Ltd Vs. Super doll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002 (CAT unreported) explained the need for a swearing affidavit of the mentioned person in the affidavit. The court had this to say: 5 ’’…an affidavit which mentions another person is hearsay unless that other person swears as well.’’ As rightly decided by the trial magistrate, the appellant counsel ought to send a lawyer who could at least hold brief for him, notify the court of his non-appearance, or send his employee to inform the court of his absence or send the appellant himself. Indeed, this was negligence on the part of the appellant’s counsel. Thus, this ground is dismissed. Concerning the second ground, the appellant contends that the trial magistrate erred in law and fact in declining to set aside the dismissal order dated 17th August 2023 regarding Civil Case No. 34 of 2022. It should be noted that the power to set aside or dismiss the case is discretional, and the same needs to be exercised judiciously and justifiably. Discerned from the trial court records, the file was coming from mediation, thus fixed for setting a date for the final pretrial conference. However, neither party appeared; therefore, the case was dismissed. In my profound view, the trial magistrate acted unjustifiably as the appellant used to enter appearance continuously. Thus, he could have adjourned the case at least to accord him the benefit of the doubt. That aside, the trial magistrate dismissed the case for non-appearance of the 6 parties, while the case was scheduled for mention/orders with a view of fixing a Final Pretrial Conference, the act which can only be done when the matter is scheduled for hearing as per Order IX Rule 2 the Civil Procedure Code, the same states that; “Where neither party appears when the suit is called on for hearing, the court may order that the suit be dismissed.” To capture this point well, I find it apposite to reproduce the court’s order dated 17/08/2024 “Court: the matter was scheduled today for the parties to appear before me to have the matter scheduled for a PTC. Since the parties are absent, it is obvious they have lost interest in the matter. The suit is dismissed for non- appearance of the parties.” What I gather from this excerpt is that the case was fixed for mention, and on the same date, the trial magistrate dismissed it for the parties' non- appearance. Therefore, it was not right for the trial court to decline to set aside the dismissal order. Thus, this ground is allowed. 7 Consequently, this appeal is allowed based on the reasoning above. To avoid doubt, Civil Case No 34/2022 is restored to the trial court to be heard on merit. Due to the nature of the matter, I give no order regarding cost. It is so ordered accordingly. MWANGA JUDGE 19/11/2024 COURT: Judgment delivered on 19th November 2024 in the presence of Daibu Kambo learned advocate for the appellant and in the respondent's absence. MWANGA JUDGE 19/11/2024 8