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IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 37 OF 2018 (Arising from Misc. Commercial Cause No. 92 of 2017) HUDAA N. MAHMOUD .......... APPLICANT VERSUS JANETH KAMAU KIBUJA .............. RESPONDENT RULING 18/10/2018 & 13/11/2018 SEHEL, J. The applicant herein was a petitioner in Miscellaneous Commercial Cause No. 170 of 2017 where she was challenging the grant of reliefs in the Award issued in favoured to the respondent in Miscellaneous Commercial Cause No. 92 of 2017. On 22nd day of February, 2018 when Miscellaneous Commercial Cause No. 170 of 2017 was called for hearing the petition was dismissed for non appearance of the counsel for the petitioner hence the present^ i application for setting aside the dismissal order. The application is made under Rule 43 (1) and (2) of the High Court (Commercial Division) Procedure Rules, GN 250 of 2012 (hereinafter referred to as “the Rules”) and it is supported by an affidavit of Mr. Mutakyahwa Charles, advocate for the applicant. The main reason advanced was such that the advocate on the same very date was within the corridors of the court but mistaken the time of appearance. He said the mistake was due to misinformation he received from the counsel of the respondent. The respondent challenged the application by filing counter affidavit. At the hearing of the application, learned advocate Mutakyahwa appeared to represent the applicant while the learned advocate Godson Nyange appeared to represent the respondent. The counsel for the applicant adopted his affidavit to form part of his submissions and reiterated that his non appearance was based on wrong information he obtained from the counsel of the respondent on 1st December, 2017 that the time fixed for hearing was 1400hrsa 2 while it was 1300Hrs. He insisted that he was around the court premises thirty minutes before 1400Hrs only to discover that it was dismissed for non appearance which was inadvertly based on the wrong time. He contended that since the applicant is still interested in pursuing the matter then he prayed for the application to be granted as the respondent will not be prejudiced if the application is granted. He supported his submission with the decision of this Court in the case of Sadru Mangalji Vs. Abdul Aziz Lalani and 2 Others, Misc. Commercial Application No. 126 of 2016 wherein the court was mindful with determining suits on merits by holding that “.... it is in the interest of justice and practice of this Court that, unless there are special reasons to the contrary, suits are determined on merits.” In response to the submissions made by the counsel for the applicant, the learned advocate Nyange argued that the contents of the counter affidavit have been admitted by the applicant as no reply was filed to counter the arguments. He also said for the court to set aside the dismissal order, the applicant must prove that there are reasonable grounds to restore the suit. He said the applicant^ 3 defaulted appearances for three consecutive times as such the applicant was not diligent in handling the matter. The counsel further argued that the matter being settled by way of arbitration then parties wanted their dispute to be resolved efficiently and quickly but the applicant is trying to delay it. He distinguished the facts of the case cited by the counsel of the applicant with the matter at hand. He therefore prayed for the application to be dismissed with costs. In rejoinder, counsel Mutakyahwa said he was absent once and he sent a person to represent him on that date as such he reiterated for the prayer to be granted. From the rival submissions, it is not disputed that the applicant’s application was dismissed for want of prosecution. It is on records that the dismissal order was made on 22nd February, 2018 after the Court noted that the applicant had absented herself for three consecutive days. With due respect to the submissions made by the counsel for the applicant that he was only absent once, the records show that he was absent on 20th November, 2017; 1st December, 4 2017; and 22nd February, 2018. There had never been any representative on his behalf as he would wish this Court to believe. Rule 43 (2) of the Rules cited by the applicant to move this Court to set aside dismissal order provides: “Where the Court has entered an ex-parte judgment or passed a dismissal order or any other order in accordance with Order IX of the Code, it shall be lawful for the Court, upon application being made by an aggrieved party within fourteen days from the date of the judgment or the order, to set aside or vary such judgment or order upon such terms as may be considered by the Court to be just”. From the above provision of the law it is obvious that the powers conferred upon the Court are entirely in the discretionary power of the Court to grant or refuse it. Such discretion has to be exercised according to the rules of reason and justice, and not according to private opinion, whimsical inclinations or arbitrarily - see: Yusufu Same & Anor v. Hadija Yusufu, Civil Appeal No. 1 of 2002 and Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010, both unreported. In the matter at hand, the explanation given as to why this Court should set aside the dismissal order was that there was mistake of time. An error of time even if taken to be the real reason, still it is not justifiable cause because the applicant was supposed to make a follow up of her case. As I have stated herein that the applicant absented herself thrice and not once as such this Court could not have more mercy to the applicant than it had done before. In the end I see no reason let alone justifiable reason for setting aside dismissal order. I find no merit to the application and I proceed to dismiss it with costs. It is so ordered. DATED at Dar es Salaam this 13th day of November, 2018. B.M.A Sehel JUDGE 13th November, 2018. 6