justine m tesha vs ministry of natural resources and tourism another 2007 tzhc 297 21 august 2007

IN THE HIGH COURT OF TANZANIA at d ar es salaam M isc civn. CAUSE BO. 51 OF 2003 JUSTINE M. ........................... .. VERSUS m in i s t r y o f n a t u r a l r e s o u r c e s AND TOURISION & ANOTHER........ R RULING 7This is an application made under section 95 and Order IX Rule 4 of the ci.il Procedure Cod. 1966 which seek, an order to set aside a dismissal order o application for le . . . » app* < * Th e application is supported by the i a JUSTINE M. TESHA the applicant. In the affi avi applicant has averred as follows:- 1 1 .............. (not relevant) 2. That the above stated case was fixed for heaving on 5th August, 2005 at 9.00 am 3. That on 4th August, 2005 I duly consulted the court clerk who confirmed to me that my case was set for hearing on 5 August, 2005 and advised me to report at the court early in the morning 4. That on 5th August, 2005 1 reported at the court as advised and I was ordered to stay and wait in the court lounge until my case is called by he court clerk. 5. That 1 wanted as ordered but I never heard my case being called I heard only other cases being called by the court. 6. That later on I saw the court clerk coming out of the Judges Chamber carrying files. When I inquired him as regards hearing of my case, he informed me that my case had been dismissed allegedly because of my non­ appearance. That is not true that I was not present. I was present but I didn’t hear the court clerk calling my case. 8. That my non-appearance on that day was neither deliberate nor negligent. My non­ appearance was occasioned by the inaudible voice of the court clerk. 9...... (not relevant) 10......(not relevant). The respondents who are the permanent Secretary Ministry of Nature Resources and Tourism and the Hon Attorney General, through the Services S1A BEATRICE MREMA, a State Attorney, filed a counter affidavit in effect cantering the application and putting the applicant to strict proof of the avarements in the affidavit. At the hearing of the application this Applican who was unrepresented by advocate, told this court that the reasons for the application are as contained in the affidavit, which was adopted extent further addition. Ms Otami learned State Attorney asked this court to decide the matter as it does fit. The reason for the non appearance which has been given by the applicant is the applicant was present but didn’t hear the court clerk calling my case” (PW.7). In para 8 of the affidavit the applican reiterated that. My non-appearance his occasioned by in audible voice of the court clerk” . In effect the applicant suggests that he saw the court clerk calling out the cases but did not her his case being called out. At the same time, the applicant is suggesting that he saw the court clerk calling outcases but the court clerk was inaudible, as a result did not hear her case being called o u t. The two versions given by the applicant are contradictory. If the applicant could hear the court clerk calling out other cases and he was able to tell that none of the cases called was his case, surely the court clerk must have been audible. The applicant made no attempt to identify the clerk or obtain the court clerk’s affidavit to support the contention that the applicant was in court and was seen by the said court clerk. What ever he may have been told by the court clerk is nothing but hearsay evidence which is inadmissible. On the evidence as contained in the applicant’s affidavit, I am not satisfied that the applicant was infact in court when the case was called out. The applicant has therefore failed to demonstrate that there was sufficient cause for not appearing at the hearing of the application. As for the use of the courts discretion under Section 95, since there is a specific provision relating to restoration of dismissed proceedings, there is no reason to have recourse to the discretionary powers 5 under section 95. It would in my view be an abuse of the court process to restore the application where the applicant has not satisfied the court that there was sufficient cause for non-appearance. The application is therefore dismissed. As the matter arises out of employment, no order is made as to costs. Delivered in the presence of the Application this 21st day of August, 2007. Right of Appeal to the Court of Appeal is explained. J.I. L JUDGE 21/8/2007 6