19990128 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 93 OF 1996 VICTORIA F.M. SHANGARAI ......... APPELLANT versus DAL FORWARDING (T) LTD............. RESPONDENT RULING This is a ruling in respect of an application by the defend ants to set aside an order for exparte proof by plaintiff issued by this court on 27/11/98. Mr. Kalolo, Advocate, represented the defendant/applicant while Mr. Magafu, Advocate, represented th~ plaintiff/Respondent. The relev.ant chamber summons is supported by ~o affidavits -·that of Finn Bengsten, the Executive Director of the Defendant Company and that of Mr. Julius Kalolo Bundala. The ~pplicant's prayer is based on contentions that on the relevant date the Defendant Company's Director, Finn, was present, waiting in the usual waiting lounge, together with one Fugamtama, Advocate, who had been asked by Mr. Kalolo to hold brief for him as he was attending a LART Tribunal hearing on behalf of Ismail who was attending the Rwanda Genocide Tribunal but that they were not called by the Bench clerk; that they onJy came to realise later that the matter had already been called up and the adverse order issued and that the sums involved are colossal and would paralyse the Company if decreed. Both affidavits are entirely in support of this and Mr. Kalolo adopted them in their entirety during the hearing of this application. Responding, Mr. Magafu called upon this court to dismiss the application by arguing that absence of an advocate does not 2 . entail adjournment of a case; that Mr. Kalolo should have attended this Court first being superior to the LART Tribunal; that the claims of having involved Mr. Fugamtama are not supported for he should have sworn an affidavit; that the Summons from LART was directed to Ismail in person and not Ismail and Company; that Mr. Kalolo's Chambers have two more lawyers, including Twaib and who was seen around but never bothered to appear, and finally that the quantum of the sums involved in a case has never been a basis of setting aside an exparte order. In his final submission, while reiterating what he had earlier on stated, Mr. Kalolo pointed out that if Mr. Magafu had wished to have his submissions carry weight he should have sworn a counter-affidavit. I have carefully considered the arguments fronted in relation to the law and have concluded that this application should be allowed for the following reasons. First, with respect to Mr. Magafu, the only question is whether or not Mr. Kalolo and his client failed to appear for no good reason. Their argument if that they were not called to attend the judge in chambers although they were in the usual waiting lounge. This does not take us to a point of whether parties appearing (whether client alone or with an advocate only holding brief) were capable of prosecuting the case, for, that chance was not afforded to them. If the exparte order had been issued because Mr. Fugamtama holding brief or Finn, had expressed the incapacity to proceed, then Mr. Magafu's arguments regarding Mr. Kalolo's personal attendance or otherwise would have been relevant. This however is not the case here. If the applicant is believed, and, I think he should, it means even ifMt~-Kalolo had been around the consequences would have been the same, for, he would have been waiting in the lounge with his clients while the order was being made in 3 • judge's chambers. For that reason, all ofMr. Magafu's arguments are not relevant except the one on quantum which is as obvious as sunlight when the skies are no obstracted, and I am surprised that Mr. Kalolo put it across at all. Exparte judgements can be entered in respect of any kind of relief or any amount, ranging from a cent to trillions. If Mr. Magafu wished to challenge the application he should only have concentrated at disapproving the allegations that they (defendants) were not called or that they were in the waiting lounge at all ( allegations which he never even bothered to tacle). And as rightly pointed out by Mr. Kalolo he could have done that by filing a counter affidavit supported possibly by an affidavit of a bench clerk to show the steps taken by the latter to inform the parties about the venue of their case. The fact that this obvious and simple procedure was not invoked tends to support the applicant's that indeed there was an omission on the side of the Bench clerk. For reasons discussed above the application stands allowed. The order for exparte proof is vacated. Costs in the course. L.B. Kalegeya JUDGE Ruling delivered in the presence of Mr. Kalolo and Mr. Magafu. L.B. Kalegeya JUDGE 28/1/99 Order: M. 29/1/99 with a view to fixing a hearing date. L.B. Kalegeya JUDGE 28/1/99