20150327 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 136 OF 2013 (Original Civil Case No. 128 of 2009 RMS Court at Kisutu) JUMANNE MKUNDULO ........................ APPELLANT ( ' V. SCANIA TANZANIA LIMITED ................ RESPONDENT Date of last order: 12/12/2014 Date of Judgment: 27/3/2015 JUDGMENT Shangwa, J. This is an appeal by Jumanne Mkundulo against the decision of the Court of the Resident Magistrate at Kisutu in Civil Case No. 128 of 2009 in which his suit was dismissed. In his suit, the plaintiff had prayed for the following major reliefs: 2 1. A declaration that he__ is __no longer indebted to the defendant I Respondent an-d an-unconditiona-Z return of----motor vehicle TZJ 4348 to him. 2. A permanent injunction restraining the defendant, its employees or agents from ---- j interfering with his smooth operation of- motor vehicle with Registration No. TZJ 3448 Scania truck. 3. Payment of general damages for loss of use of motor vehicle TZJ 4348 from the date the truck was impounded by the defendant I Respondent that is 1st August, 2008 to the date of return at the rate ofTshs. 6,000,000/= per month. 4. Costs of the suit. 3 5. Interest on the decretal sum at court rate of 12%from the date of judgment until full --~payment. The appeal was argued by way of written submissions. Counsel for the Appellant argued that it was wrong for the trial Court to dismiss the Appeal. Counsel for the Respondent argued that it was right for the trial Court to dismiss it. I have gone through the proceedings and judgment of the trial . Court and found that although the plaintiff's/ Appellant's suit was dismissed by the trial Court W.E.Lema PRM, the defendant/Respondent was not given opportunity to be heard on pretext that she abandoned the suit after closure of the plaintiff's/ Appellant's suit. 4 From the record of the trial court, it is crystal clear that after the closure of the plaintiffs / Appellant's case, counsel ~or the_ defendant/Respondent defaulted appearance· only once that is on 6 th February, 2013. In my op!n.10~, nonappearance of a party or his/ her ♦• ~ ... T·• ■ -. 0 • • ... ,. ~ f ,. Advocate on· · . . .-a·· single ' occasion such as the defendantiRespondent and her Advocate did in this case cannot make a rational court to rush into a conclusion that he or she has abandoned his or her case. Therefore, it was wrong in this case for the trial Court to rush into the said conclusion and pass an order for judgment based on the plaintiffs case only without hearing the other side namely the defence. For this reason, I decline to entertain Counsel's arguments with respect to this appeal and I quash the trial 5 Court's decision. After doing so, I remit the case to the trial Court for hearing the defendant's case by the same or another Magistrate with_ competen_t jurisdic_~~on who will arrive at a fair decision before this Court gets involved in Delivered in open court in the presence of Mr. Brash for the Appellant holding brief of Miss Ngowi for the Respondent. - A.Shangwa JUDGE 27/3/2015 \ I • ;,i;S- ., ,t 1"1~ ~'f Ji,