19970212 TZHC Dar es Salaam

' .. - -~ .j;g/(;#,;/ /If ;.. ~-I~J° 'l'HJ.:<; HIGH COURT OF TANZANIA ~ AT D,\il ES SALA/J,M CI-VIL Al?PJ.:.AL NO". 85/94 JOACHIMU KhSfV!Irt EW/,~:.UJViA ••••••••••• APPELLANT Versus Jos...., B""'.'~ - /. 1.'" ,. 1-i:..-;•, ,.,..., ' ) ,, -, · r A fr" 1, ~ ,\ - D c::p 011·m-"'llT n. .e; .t;L,L,: :.J-; _;_,1 11/,,.u\ l:L1i-;ru~c•1.1-1., ••• , • till.... l'• .e;.\i JTJDGMENT KYAND0 1 J: This is an .qppeal frc.'rn an order of Kalombora, 32n ior Resident Magistrate, granting an application made by the res- pondent herqin for restoro.tion of tho cross-petition dismissed , ~ earl.:i.e on for non·.;..uppearanc2. The spplication for restoration was supported by e.n affidavit in which the couns2l for the present respondent stated, _inter alia, that he( the counsel) failed to appear on the day en which the cross-petition was dismissed b0causc~ he was sick. Mr. ",I,,.::i.'') for th:'·· ::_:i-'."~,:;cnt appellant countered in the court below ;:;het the cl2im ci sick ness on the port of the counsel, Dr. L3iTIWE\i, shculd have been supported by a mtdical clhit. The le2rnc.:d Magistrate, s2id in h~r brief ruilii•~g -::h'.'lt she had consider•.::d the arguments of •.:.,.:,t}-· sid1-,s ,_,_._.~;_ thuu&ht that 'the issue is s,?ricue, tl-:.e r.1attPr shouJ:i be de2l t ·. 1 i. th ')11 merits~ Sh_e then set aside the order dismissing the cross-petition. In the present appoal -thr02 gr( ._,'.1ds have be2n set up '-. to challenge the loarned JYl;:igistrate' ;:- ;)rder. The• first one is thet the Magistrate erred in low in restoring the 11 sui ti• in the absence of any gciod cause for the non-appearance o:: the applicant and/or her counsel; tho Eecond one is thot the Magistrate erred. in 13w and in fact in holding that the mere fact that the matter is serious merits the setting aside of i 11 a dismissed order: 1 , and the: third one is th:=:it the Magistrate. misdir~ctGd herself on tho varying of orders rnade by the consent of thi::: part:i..es to 2 suit •.. Concerning the last ground nbovet I do not see how it fits into the circuru,:;tances of this c2.se 3s what was involved here wcis not the v2rying cf 8JlY consent orcter~ As for the other grounds, as counsel for the respondents contend the ..••• / 2 'f - . .,~;'"l "' = 2 = affidavit in support w2.s nc t challen;?ed by a counter-affidavit. The lenrned. Mogistrate. must l:v,ve been s~:~tisfied therefore t~2."t it hr~d been proved -chnt Dr. Lnmwai had been prevented from appearing or1 th2 he,r-ing dat('.~ by s~ckness, not:wi thstnnding -L:h2,t .,, no ffi(?dical chit was -6roduc2d bv him. - J ft.nd nbscmce due to sikrwss is good causG for setting aside a default order in my view. There was ther2fore sufficient cause for the non-app2arnnce of the respondent's counsel. are m3.trimoni2.l As ·for the respcndent herself these proc0edings. · They appear to be fiercely contested. and I think I it was good sense for the l\bgistrate to de.cide to hear .the parties on merits. I hold-that she was right.in thnt decision f- I and I have, as I h:2reby do to dismiss the :=ippeal brought to this court by the appellant. I make rw order for costs. 1~ • A. :G. KYI~NDO ,JUDGE f)Ail ES SALAAM 12-~2. 97. Ifir. Nyangsrika/Mair2- _fer the :i.ppellr._. i.., ,, For the Hespondent - abs~nt; not sc:rv: J.. 0 Judge~ent delivered~ Certified ;tr-ue ~opy of the original. ,,,,... F Qs~~utungi D~JJ_TI~~~~ H/COlJR~ "