19940405 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA. AT DAF ES SALAAM CIVIL AY~EAL N04 25 bF 1993 P~C• (Fr.im the decision of the District Court of Kibaha at Coast Region in ·C·fvil Ap;)eal ' ' No, 7 of 1992) . . Original _Civil Case No. ·:~ "f 1991 of Soga Primary ~t.trt.. Be!ere M. T. Matitu,. Es~., District filagistrate 0 HA&IIIU HE~lEDI ···············••oooo••··· APPELLANT versus : RASHIDI MK.AME.A.•••••••·········•·••·••·•• RESPOHDENT .JJJ_DGMENT MA.INA, J t • ~he dispute between the parties is over a piece of l~nd etmprising ot five and a half acres situated at Vikuge , ~ - Stga in Kibaha dis.trict. The appell?nt Hasbil: lfom.edi wh• ... was the plaintiff in ~he primary .c~t-l~t the suit wµiGh t' • l . he-hai filed against·_~the respendent,. Rashid Mkamba. Tqe appella,nt appealed . ' the.. district .·~rt : at Kibaha; and. . .-.. \ t:hij appeal was. dismissed4 This ie ··his second appeal~ , Mr• Lipiki~ learned counsel for the- appellant, su~mi tted in the_.firit greund ef appeal, that the -appellate di-strict -' . •eurt erred _in law in refusing to adjourn the hea,ring ·if the appeal and. in not even.·Mnsidering the wri ttel} su~8'io sion he ha.d !j..led on. behal~ of th_"e app~llant; ·:·The reoord of. t~e· dtstri~c-t court shows_ that Mr....Lipik:i." :had requ.e.e~ !or an adjg\_l;rnment ·.. ~ bee~eie he was ad.mitted'in hQiipital,- after he• was •..invQl.ve4 · . .in a road accident. ••.,;:- -·~ • ~-➔. ,. ... The dietra\ . . • ~ist~te g:r:§:nted· two ao.journments, as he waa_ en ~ll _ ~•ea•iona shtwn evidenee that the appellan~ls-~ate wa~ su~l On p ·Sif'· ~i:N. ap~a.nce. oy_ the partietit, the ma~~~a:w. _~ll o;J_ieued that Mr. _Lipild. 'W0A .stil). sifk-,~."11'e ~~ee. any tu~ei- adjournment.. . %t ~C41Dt . . te me that the appellant was not given hi~ . ·r-ighl...i9-f7 JtPY~• ~ ~ - - t 1 ~Y ~~-'ba"rn tha ..... /2 ,, .t • ) district court knew very we~1 that the advocate was sick, and it had to adjourn the h£-1ring to another date. Any person in this country has ·.ie ri~ht t~ be represented by counsel in any case before court of law, except, of course · in the primary court. The ,ppellant ,vas denied such a right. The district magistrate ci·;;d the case of .h...~11.wJX.~ v. ' G:-;orge Mbug4.._fil'lj. Anothe.r l· 76 LRT 62 for hi~ decision to refuse an adjournment. In that case, however, the advo~~tes for the parties had by thEnselves agreed to ask for adjorn- ment, for no apparent reaE Jn, The,t clearly cannot be. accepted, But in this case, the facts are different. The appellant asked for adjournment because his advocate was sick, That cannot be said to be "valgaries of the business activities ~f an adv~cate!1 as held in the iYiasiJ.c_g case. The application for adjournment in this case was suported by a letter from Mr, Lipiki that he was still sick, and he • > had sustained a fractured arm. This was undisputed, and so the district magistrate erred in refusing to grant an adjoµrnment, Having held that there was a denial of justice in refusing to grant an adjournment, I do ntt intend_ to consider the other grounds of appeal. , This appeal is allowed. The proceedings before the district c~urt are quashed and the deceision is set aside. It is ordered that the appeal be heard _g_e novo at r:. the district court before another ruagistra te of competent· jurisdiction. 0 The respondent shall pay the appellant's costs. ~h-\ o : . , ""' . w.• J. MA.INA JUDGE· · -+; ,~r e.s Salaam 5 April 1994 Mr• Lipiki fQr the Appellant Respond~nt present, . I