NA TZHC Dodoma

\ff® -re<-,n2_.lll IN THE HIGH COURT OF TANZANIA ·AT DODOMA - .............,. u-,-'--:~· :...,,..,.: , ~;.~·=.;... . . - ~ ~ --. -~ ' MISC. CIVIL APPLICATION NO. 49 OF 2003 (ORIGINAL DC CIYIL APPEAL NO. 21 OF 2002 - HIGH COURT OF TANZANIA AT DODOMA) MALILO KACHUGU ............................... APPLICANT Versus KHANIMA ABDULKHABIB MAKBEL .. RESPONDENT ;\ 23/10/2008 & 31/10/2008 RULING . . MAD~M, SHANGALI, JUDGE This is simple and str_aig!J.t forward application filed by one MALILO KACHUGU_ asking for the restoration of his_ (DC) Civil Appeal ·No. 21 of 2002 which was dismissed by this court (Hon. Kaijage, J) on 4 th September, 2003 for none appearance of the .applicant. 2 The chamQ,gr application has been filed under Order XXXIX Rule 19 of the Civil Procedure Code, 1966. and duly .. - . . . supported by the affidavit deponed by the applican_t. r-,1ALILO :__ ·.::· ·. KACHUGU. d •,• In the hearing of this application the app-llcant was represented by Mr. Ruhumbika, learned advocate: while the respondent KHANIMA ABDULKHABIB MAi<'BEL ........❖ .- . . . was represented by Mr. Nyangarika, learned 1advoca_tf;:: · . . . I said ~his is- a simple and straight forwar~-: 'application · because the (DC) Civil· Appeal No. 21 of 200-2-las filed for . ~- th ---!hearing on _·4 · September, •2003. When the )natter.· vva$~. called for hearing at 09.40 a.m. the appella.nt w;;as riot yet in court. There and then the court dismissed the cz~se for want of prosecution. . To be precise the court ruled as\{qllows: - ::·.:: ," ,; ... ,~,--"'. . ·-_;..·- ... "COURT: This matter was set for h#aiJ~-g ·today, the. appeliant-'was in attenda~~n 0. 05.2003 and wa.s therefore awa~~-~----·.;f . .. . ' . ~·:r-~r. · - today's hearing. It is now 9.40 a.ni:~:~:nd -;is:-.,,._·· . --the- appellant is nowhere to. b_e fou~_~{/hie. -- ... -~~."";:,:-· migf]_t _h_ave . decided not to pursu~)tnis . . ' . . - . matter· any further. In the circuinstaJJ_ces, .. -, .) '\; the appeal should b~, and· it is hereby · dismissed for want of prosecution." As a result of that order, the appellant/applicant had no other option but to. file this application requesting this court to set aside its order and. restore his appeal. In his affidavit_ the applicant has stated categorically that in that morning he was set to appear in court on time but incidentally he developed stomach upset and arrived in court premises a bit ' late at 9.45 a.m. only to be informed by the court clerk that his appeal has bee,n dismisse9 for want of prosecuti_on. In essenc~ therefore, the applicant -was late by only five minutes. The question is whether there was a sufficient cause for his absence or late appearance .. It is unfortunate that instead of dealing with the application on merits, the learned advocates decided to unnecessarily entangled tne~elves in legal jargons and procedural technicalities touching on the legality of the applicants affidavit. I am inclined to deal with the only important aspect of the matter as short as practicable. 4 . • J Mr. Nyangarika, learned advocate for the respondent. submitted that the applicants affidavit. is bad in law for not being properly verified. H_e claimed that even if the affidavi! · is correct, there is no evidence to prove that the applicant was actually sick and that he reported to the court clerk _on that date. Mr. Ruhumbika, learned advocate for the app!icant submitted that the affidavit is not defective in law and that legal ~echnicalities should not be invoked to defeat the cause of justice. He · contended that the assailed affidavit was -; actually prepared. by the applicant in_ p~rson who is a layman and the minor defects are not fatal to the application.· Mr. Ruhumbika argued that the applicant was prevented ~y a sufficient cause of sudden· sickness and became late for only five minutes. Honestly and in the nafne-7of adjudication of justice, ·this matter should not waste our precious time and energy. First of all I don't see any serious error on the applic~nt's affidavit. secondly, even if there is an error on the said affidavit it is a mere minor technical ~1:16Vt which in the circumstances of the application, can be conveniently