20000308 TZCA Dar es Salaam

J • IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAN KISA J0A And LUGAKINGI J A0) CIVIL REFERENCE NO. 10 OF 1998 In the Matter of an Intended Appeal BETWEEN COSMAS YOTH1'4 MWAMPELWA 0000 0 0 0 0 0 0 0 0 00 APPLICANT AND BANK OF TANZANIA 0000000000000000000000 RESPONDENT (REFERENCE from the Ruling of a single Judge of the Court of Appeal of Tanza- nia at Dar es Salaam) , (Mfalila, J.A.) • dated the ltfth day of August, 1998 in CivilApplication No. 33 of 1997 R U L I N G LUGAKINGIRAJ.A0: On 1/8/98 a single judge of the Court made an - order dismissing with costs an application for leave to appeal from a decision of the High Court. The instant application is a reference from the decision of the single judge. To cut a long story short, the applicant was on 2/3/95 permitted by the Resident Magistrate's Court at Kisutu to prove a claim ex-parte in Employment Cause No. 71 of 1994 because the respondent's counsel, Mrs. Katto, did not appear. The applicant persented an affidavit in proof and was granted judgment on 14/3/95. On 21/6/95 the court rejected the respondent's application to set the ex-parte judgment aside out of time. On 6/11/95, after ascertaining the true facts pertaining to Mrs0 Katto's absence on 2/3/95, the court reviewed its decision, set the ex-parte judgmeit aside and ordered the claim to .../2 -2- be heard oi merits. The aDplicant has been resisting that decision. He appealed to the High Court in Civil Appeal No. 146 of 1995 but the appeal was dismissed. He applied to the same court for leave to appeal to this Court but the application was dismissed. He then appeared before the single judge for the same purpose and, as stated at the beginning, he was again unsuccessful. In dismissing the application the single judge had this to say: The determination of questions whether or not to review an earlier decision under the Civil Procedure Code and whether or not to set aside an ex-parte judgment is largely within the discretion of the court concerned, hence in the absence of an obvious error leading to a miscarriage of justice, it will be extremely difficult t• interfere with the use of such discretion 1 The applicant sought to demonstrate that there was an obvious error in the review by making the following claims: First, that there was no error in the decision reviewed; second, that Mrs. Katto did not swear any affidavit in the review; third, that the application for review was out of time; finally, that the review was against G.N. No. 508 of 1991. We agree with Mr. Tenga who appeared for the respondent that there is neither truth nor substance in any of this. If it is necessary to answer them we will point out that there was an error in the decision reviewed because it was based on wrong facts as to the whereabouts of Mrs. Katto on 2/3/95. Mrs. Katto did swear an affidavit which was shown to the Court. The application for review was made twenty-seven days after the decision reviewed and was therefore in time. And as the applicant subsequently conceded, G.N. No. 508 rf 1991, in its amendment of Order 17 •±' the Civil Procedure Code, aims at curbing unnecessary adjournmerfts. It has nothing to do with reviews. Finally, as again argued by Mr. Tenga, the review did not occasion the applicant any injustice0 He has the opportunity to be heard on his claim in the Resident Magistrates Court. We thus find no merit in the reference and dismiss it with costs. DATED at DAR ES SALAAM this 8th day of March, 2001. P. H. KISANGA -. JUSTICE OF APPEAL ',/ ,• D. Z. LUBUVA JUSTICE OF APPEAL -I •\•- s .-'-- A. - / /1 V ------- K.S.K. LUGAKINGIRA JUSTICE OF APPEAL I certify that this is a true copy of the original. ItMO MIIAIKU&ILE ) REGISTRAR