20160518 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] I AT ARUSHA PC CIVIL APPEAL NO 10 OF 2016 , ( C/F Misc. civil application No 26/2015 originating from civil appeal no 6/2015, from civil case No 113/2013 of Maji ya chai Primary court) DEVID JOACHIM KIANGA .. ........................................ .APPELLANT i VERSUS GLADNESS ALEXANDER KWEKA .............................. RESPONDENT Date of last Order: 21/03/2016 Date ofJudgment: 13/04/2016 JUDGMENT MASSENGI, l This appeal is arising from the decision of Arusha District Court in Misc. Civil Application No 26 of 2015. Dissatisfied by the District Court's decision the appellant has lodged this appeal on the following grounds to challenge the decision; 1. That, the District Magistrate erred in law and fact by dismissing civil application no 26/2015 without considering weight of reasons adduced by the counsel for the applicant. . 2. That, the District Magistrate erred in law and fact by determining the main suit without giving the appellant time to be heard instead of dismissing the restoration for want of prosecution. 1 FHM/SKY Words 885 3. That, the District court magistrate erred in law and fact in dismissing the application for restoration by wrongly taking on record the words of Mr. Mayombo Hamis who appeared to hold brief for advocate Priscus Massawe to adjourn the case, as the later had not withdrawn from the case. 4. That, the District court magistrate erred in law and fact when failed to note that the absence of the counsel for the applicant on time was caused by hierarchical structure of judicial system and the decision of the magistrate in adjourning for two days only forcing the date which could not march with the counsel's calendar/diary. On 21 st March,2016 when the appeal was scheduled for hearing the appellant was represented by Mr. Massawe learned advocate and the respondent appeared in person unrepresented. Submitting on the first and second ground of appeal he said that the present appeal is in regard the dismissal order of the application before the Arusha District court, it was his argument that on 25/03/2015 he did not attend court as on the same date he was in High court Moshi, he asked advocate Mayombo to hold his brief but the magistrate refused and scheduled the case in two days' time and the same date he had a matter in the High Court before Hon. Opiyo J, the appeal was dismissed for want of prosecution he said that his client could not appear as he was serving his prison term, he added that he filed the application for the restoration of the same and it was dismissed. 2 FHM/SKY Words 885 In regard to the third ground of appeal he submitted that the first appellate court erred in law in recording advocate Mayombo as counsel for the applicant while he was just holding brief for him. Submitting for the fourth ground he submitted that the cause of the dismissal of their appeal was caused by the hierarchical structure of the judiciary where by the advocate is obliged to attend the Higher court. He prayed for their appeal to be allowed, the dismissal order in the lower court be set aside. Opposing this appeal the respondent said that on 25/03/2015 Advocate Mayombo did not tell the court that he was holding brief for Mr. Massawe, and on 27/03/2015 the appellant advocate did not appear as well he did not inform the court the reasons for his absence, he said the magistrate in the first appellate court was right to dismiss the application for restoration, he prayed for this appeal to be dismissed with costs. I have taken into consideration the grounds of appeal, appellant submissions and reply there to. The present appeal is in regard to the misc. application No 26/2015 in which the first appellate court refused to restore civil application No 6/ 2015 which was dismissed for want of prosecution. Proceedings in respect of misc. civil application No 6/2015 speaks for itself that on 25/03/2015 when the matter was scheduled for hearing Mr. Mayombo advocate appeared for the appellant and addressed the court that he was lately engaged by the appellant so he prayed for an adjournment so that he could prepare himself for hearing, the court adjourned the matter for two days, on 27/03/2015 the matter was . 3 FHM/SKY Words 885 scheduled for hearing neither the appellant nor his advocate appeared the court then dismissed the appeal for want of prosecution. The court record reflected that Advocate Mayombo was appearing for the appellant and not holding brief for Mr. Massawe as he is trying to suggest, eve-n if advocate Mayombo was holding his brief it was the duty of the applicant advocate Mr. Massawe to make a follow up as to what transpired in court so that he could take proper actions, failure to do so is lack of seriousness in which cannot be entertained by this court. That said, the magistrate was right in refusing the application for · restoration, I see no reasons to fault the same, this appeal lacks merit the same is dismissed with costs. Order accordingly. SGD: F.H. MASSENGI JUDGE 13/04/2016 Judgment delivered in Court this 13th day of April, 2016 in the present of Mr. Massawe for the Appellant and in absence of Respondent. Right of appeal explained. SGD: F.H. MASSENGI JUDGE 13/04/2016 4 FHM/SKY Words 885 I hereby certify this to be a true copy of t~e original. I I ; D · UTY REGISTRAR i 5 FHM/SKY Words 885