francis m njau vs dar es salaam city council 1997 tzca 45 8 december 1997

'IN THE CO'JKT OF APPEAL OP TANZANIA ■AT PAR SS SALA-AM (CORAH* KISANGA, J-, A-, RAMADHANI, J.A-- Arid HNZAVAS, J.A.) CIVIL APPEAL NO. 28 OF 1994 BETWEEN FRANCIS M. NJAU. . . ..............‘ APPELLANT AND DAR E3 SALAAM CITY COUNCIL . . .■ . ■RESPONDENT (Appeal from the Order of the High • .. Court -of._Tahaanla jat Dar «&• Salaam) ( e <i- > . ^ d.’ted th<i 2nd day of April,' 1991 in Civil Case No. 12? of I960 JUDGEMENT OF THE COURT RAMADHANI. J.'A.'t . Tlve late R'JBAMA, J-, presiding CK<. Hiqh Court of Tsnnsnla 6 t .Dgr £-3 Salaam, re^uct^d the application of the- eraser, fe *opel lini-r ^f*wncia c a s i n o -to the ex-parte ord«ir -ynsnfcl2v$ the pi: sent respondent^ The Dar fis Salaam City Council, leave be prove its .case ej<-pafta by. affidavit. The learned Judge had two grounds for doing so. First, he did rot see a sufficient reason explaining ,-Uui absence of- the appellant the case was set for hearing. . Second* the affidavit of the learned advocate for the appellant., I Kr. Maryndu, wan dc.t'ect.lve and should not have been acted upon. ' The appellant is aggrieved by that rtfo'.ji qnd hence this appeal before us argued by Mr. M^randu. He advanced three grounds for the appeal. Fivsb, he maintains that there is good reason to explaih his failure to be present in Court on the day set for the hearing. The learned advocate recapitulated that because of twiavoirffcble circumstances he asked Mr. Malra, learned sdvocnta, to ! hold his .brief for the mention and that he d i d •not ’inquire from i »i.»/2 Mr. ttaira the date the ease w 3s sot for hc'orlng rjnd thp t his secretary forgot to make an entry In his Court diary. Mr, Marandu strenuously sought to persuade us that that was not negligence but normal human error due to forg ?cfulners. As his second ground,. Hr. Marandu argued that his affidavit was not faulty and that he deposed to matters entirely within his knowledge; that no entry was made in his Court diary. Altermifcivoly, the learned advocate cont^ndodj the af f i'lo.'vi c was not neceasai-y. He reminded us that O IX R.7 does not recuire a written application to set aside an ex-partc order and that the application could be verbal end hence no need for an affidavit. So, Hr. Marandu argued, even if the affidavit was faulty it wan pot necessary. Lastly, the learned Counsel pleaded with us to allow the appeal to meet tho ends cf Justice so that the matter could or- fully heard and that the -ppellant should be made t? c<var the costs. For the respondent -.^pcared Mrs. L^tifa Han.ioor and Mr. Thomas Eustace, learned Counsel. Mrs. Mansoor tackled the first ground of appeal. She argued that Mr. Marandu has exhibited gross negligence by omitting to inquire from Mr. Maira. She al«o pointed out that the secretary of Mr. Marandu was not forgetfull but that she was negligent. She submitted that the learned judge properly exercised his discretion. . The learned Counsel referred us to B.P. Patel v . The Star Mineral W^ter ire Factory (llqanda). .Ltd- 454. Mr. Eustace dealt with the affidavit. He conceded that under 0 IX R,7 the appellant could have made a verbal application to set a3ids the ox-parto order and i~- ;uch a case there would not have been a need for an affidavit. However, he arqued, the moment Mr. Marandu r? I » . . . / 3 - 3 - diaci-dad to hnve a uritton application support* ! by ar> affidavit then ha had to file aproper affidavit and not a faulty one or also he must face the consequences. Mr. Eustace pointed out that apart from Mr. Marandu' e affidavit being faulty under Klqhoma Mallma appeal, as found by the learned judge, that affidavit has not been attested to contrary to 0 XIX R. 3(1). After hearing both sides and after going through the record cf the High Court we are satisfied, as was the learned trial Judge, that there is no sufficient reas'J' given to account f or the ab&ancG of the appellant on the day the case was set for hearing. Mr. Harandu as a diligent advocate should have enquired from Mr. Maira, whom he had asked to hold his brief, what had been ordered by the Court when the case ennx? '.’.p for mention. That omissioYi is not and cannot be sufficient reason. Of course Mr.. -i — «*ic< *rhah his secretary forgot to make an entry in his court diary of the date of hearing of -the case. Here we have only the word of Mr. Marandu. The secretary did not file an affidavit and this is what RUBAMA, J. said offended our decision in Klqhoma Malima. Mr. Marandu*s stand is that he l testified to matters entirely v'thin his knowledge. That is definitely true with respect to the fact his court diary was i blank. But when Mr, Marandu offered an explanation Why the diary was 'blank, that ■?<*f ^ r ---- rotary forgot to make an entry, then that waa not c ^.matter within Mr. Marandufa knowledge. Tf.e secretory had to testify as to how she camt to know of the date of the hearing, whether or not it is her duty to make entries in the C.ourt diary r.nd ''r ■1 ~u ~ Ur>r1 forgotten to do so in ♦ . . */4 I the present case. That is certainly an emission w hicfv'nulXiJflea' , — — — -------- --------- ' ---------------- ------ ------- --------------- fcho affidavit. Kr. Eustace pointed out another anomaly that the affidavit has'not been verified. That is an clsential requirement under 0 19 R. 3<1). A, roc the. reasons-given abov«j wq find no merit % n thJLs ..appeal, dismiss it vith cost*. It is so ..ordered. -.-■Wrf£D:;fl±r:&*>a -£>8, jSALJLfcK--<ii£ s--«th d*y.Q?; _ R.H..KISANGA JUSTICE OF APPEAL A.5.L. RAMADHANI -OUS TICE OF APPEAL. N.S. MNZAVAS JUSTICE OF APPEAL I certify that this is a true copy of the original. ( M.S. DEPUTY REGISTRAR