malilo kachugu vs khanima abdulkhabib makbel 2008 tzhc 340 31 october 2008

IN THE HIGH COURT OF TANZANIA AT DODOMA MISC. CIVIL APPLICATION NO. 49 OF 2003 (ORIGINAL DC CIVIL 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 MADAM, SHANGALI. JUDGE This is simple and str.aight 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 4th September, 2003 for none appearance of the applicant. The chamber application has been filed under Order XXXIX Rule 19 of the Civil Procedure Code, 1966 and duly supported by the affidavit deponed by the applicant MALILO KACHUGU. In the hearing of this application the applicant was represented by Mr. Ruhumbika, learned advocate while the respondent KHANIMA ABDULKHABIB MAKBEL was represented by Mr. Nyangarika, learned'advocate.1 I said this is a simple and straight forward application because the (DC) Civil Appeal No. 21 of 2002'was filed for ■hearing on 4th September, 2003. When th erkmatter was called for hearing at 09.40 a.m. the appellant was not yet in court. There and then the court dismissed the case for want of prosecution. To be precise the court ruled as/oNows: jadZ. - 11C O U R T: This matter was set for hearing today, the appeliantfwas in attendance-on 0.05.2003 and was therefore aware: of - ' today's hearing. It is now 9.40 a.nT. fand ■the- appellant is nowhere to be found^He might have decided not to pursiM ^tfiis matter any further. In the circumstances, the appeal should be, 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 been dismissed for want of prosecution. In essence 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 themselves 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. Mr. Nyangarika, learned advocate for the respondent submitted that the applicants affidavit is bad in law for not being properly verified. He claimed that even if the affidavit 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 applicant submitted that the affidavit is not defective in law and that legal technicalities should not be invoked to defeat the cause of justice. He contended that the assailed affidavit was actually prepared by the applicant in person who is a layman and the minor defects are not fatal to the application.' Mr. Ruhumbika argued that the applicant was prevented jby a f sufficient cause of sudden sickness and became late for only I five minutes. I j ■ Honestly and in the name-'of 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 applicant's affidavit. Secondly, even if there is an error on the said affidavit it is a mere minor technical which in the circumstances of the application, can be conveniently glossed over because it does not penetrate to the roots of the substance matter nor occasion any injustice on that part of the respondent. In fact, in the case of Ramadhani Nyoni Vs M/S Haule & Company Advocates (1996) TLR, where similar, but more serious situation arose, the court observed that: . in a case where a layman, unaware of the process of the machinery of justice tries to get relief before the court, procedural rules should not be used to defeat justice and the irregularities in an affidavit are curable in terms of section 95 of the Civil Procedure C o d e --- " This authority is enough to dispose off this application but let me remind the counsels that the wages of minor procedural sins should not b£ the death of the litigants rights. This application is hereby granted as prayed. The order of this court dismissing (DC) Civil Appeal No. 21 of 2002 dated 4th September, 2003 is hereby vacated. The said appeal should now proceed on its merits, Each party to shoulder its costs. M.S. SUftNGALI / JUDGE 31/10/2008 Ruling delivered "in the presence of both parties in j i person and in absence of their advocates. 31/10/2008