19970915 TZHC Dar es Salaam 1

f f ,. ·---;, :~ "IN 'I'H:S HIGH cnURT OF T!-i.NZhNIA i ,. AT DAR J~S S!~LAAM ', / • CIVIL APPEAL NOe 146 OF 1995-. t,j.. ,_ COSMAS Y. MWAMPELWA • o • • •.o o o o o • • • • • • • • o • •• o APPBLJ.Jl,NT "'-.. VERSUS BANK OF TANZANIA O O O e O O O O O O O O o_o O O O O o.o O O O O O O .RESPONDENT "\ l --- RULING Be ore KJ\.JI. J. · ,t This is an application by tl~e npplica.."lt CO,SM/~S Y. M.':Jfl.MPBLWA for le2ve to appeal to the Court of ftppeal of Tanzania _aGainst the judgment ) . . . of this court (Msumi, J) dated 23rc:. May, 1996. .. _ ,-J .. It has been filed under Rule 43~a) of the Court of J\ppeal Rules 1979 ands. 5(l)(c) of the Appellate Jurisdiction Act, 1979. The applicant had obt2.ined an exparte judgment against the respondent THE B!i.NK OF TANZ!\NIA at Kisutu Resident Magistrates Court_ due to non appearance of the respondent's counsel of the date of hearing• The respondent had unsuccessfully applied for the said exparte judgment to be set aside. The respondent's counsel Mrs. Kato had alleged that on the materical day she appeared befo:ne another mA.gistrate in · connection with R.M .. Civil Case. No. 233 of 1994 where the parties were JAMES MWAK/uSYitL'i. -~. BANK OF 1'!1.I'-f?,:\.Nlli and that she had appeared for THE DEFENDANT. But unfortunately the Court checked a wrong record 1:1here. the parties ---------------....- were EAK!\.RI CHALI V N.'!l'IOM:"'.L B.:CNK O? COMHERCE whera the· counsels were __,,. ...-,.~ Semgalawe for the plaintiff fu'1d Ngalikana for thG: defendant. This was RM Misc.Civil CaseoNOo 233 of 19940 " It was upon that reason that the absence of the learned counsel was foupd to be without sufficient cause and conseq~ently the refusal of the -,,· application, to set asj,9-~ the exparte judgment 0 f ·• .. 1-- .~ .... ~~:•t ¥QL«:A4 t.p• ~ ' . ~- ·''l' ·~··.:\•:.~,--:. I • ' ·.,:_ .. ·,,;. .] ,• 2 ,., J • ! iP I ~ ' The res1~owient applied for a review in view of the apparent error ~ . P;. ' \ ..( on the record 0 This time the court was more careful. It checked RM Civil t Ca~e No.. 233 of 1994 and found the parties to be Jam.es Mwakisyala V, •k' Bank of Tanzania and that on the material day :the respondent's Counsel f I .-iad really appeared for the defendant before another Magistrate. t ~- . I'·., t,1ere · 1· f•a.rei - { reviewec · 1 1·....L,S c_:Lsmissa 1· . 1 or d er an d se t .asi'd e th"'. c· expa rte ' j judgment and. dire~tecl the cnse to be hea.rd interpartes. ~ The appliccmt 1,rns aggrieved. Ee appealed before this court agninst ti.1.3.t review decision. l }. -~ His appeal ·,,n,s di5misscd on the ground that the application to set aside the exparte jw1.gr1_ent ,.,,::ml,~ not r.::nrc been dismissed had . h::1.d the court not mistaken RM. Misc.Civil Case No. 23.3 of 1994 for f<M. Civil Case. No. 233 of 1994, and . accorctanqe with t'.· ,. , that a court is vested with ·:l::.scretion,1.ry power to r,cvJ.~its decision in/ provisions of Order XLll of tbc Civil Procedure Code 1966, and that with the evidence on record the le,·:trn,➔ ~l i'1"';/,;istrate had rie;htly invoked this rJ1 power in this case. ·The.applicant was aggrieved. He filed his Notice of his intentfon to appeal to the Court of hppeal. But since he cannot appeal ,-.rithout leave by this court i ,, had to file this i:,pplicationo His main grounds for thG intenc~e::t appeal are that the reason for the absence 0f the respondent's counsel no t su ff 1c1en ~ -1-1~ . . t in ., ..a· t altl · 1nug,h s h_e appear'J d 1:-ie.1.., ore 8.no th.er magi.s A . t ra t e yet she could have attende:l t_o this cc::.s0 too because the other case was adjourned for two }1ours. .Secondly th,~ learned Magistrate Hho was handing that other case was junior to the one who was handJ.ins this case and the·refon: the learned counsel should 1 have started with this co.sr::: before moving to that junior Vi gistrate (NB Both Here Senior Resident Magistrates). 1 Thirdly the application w2-.s time barreclo I have carefully considered these grounds and others as shown in his affidavit and written su11missiono 'I 3 ·.,,·~\; . •·.-. The ruling for refusing the application to set aside the exparte ,\ I . •~ . .... .. · udp.;ment ~ .. - . was delivered on 21st June, 1995. The 'application for review 1;1..,,_s ·filed on 18th July, 1995. This wets less than the tim·a limit of 30 days. The question.of•time limit therefore does not ariseo The other grounds are not points 0f law worth consideration 'by the ·· Court of /\.ppeal for the deve1opm,mt of our civil lav1. 8. It is upon the above rec.sons that I refuse to grant le.-w0 to the ~ a.ppli:ant to appeal to the Court of Ap;:ieal of Tanz~mia. ?.- .l i ~pplic2tion-disQissed with costs in the causeo iS o No l(a.j i .JUDGE 30/5/1997 Court: Ruling h2.$ 1.Jeen ~lcliv.:,re::l in the pre~ience of the application in person .::i.nd Mr. Ten-;a for the :-espond.ent this 30th rlay of May, 1997e S. N. Kaji. ___...........,.._ JUDGE 30/5/1997 I Certify that true copy of the Orip:inalo 15/9/1997