marco tuarira mjema vs mic tanzania limited 2023 tzhc 21670 18 august 2023

UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 106 OF 2022 MARCO TUARIRA MJEMA PLAINTIFF VERSUS MIC TANZANIA LIMITED DEFENDANT RULING Dateoflast Order;18/08/2023 Date ofruling:18/08/2023 BEFORE HON. MALATA,3 This is a ruling in respect of the prayer for adjournment of hearing of case fixed for on 18/08/2023. Formerly, the case was scheduled for hearing on 21®^ August, 2023 in a special session of civil cases just for backlog clearance and timely and quality justice for the litigants, this case inclusive. However, on 16^'^ August, 2023 both counsels for the parties herein appeared before the presiding Judge for rescheduling of the case for Page 1 of 9 hearing to 18^*^ August, 2023 and by consensus it was agreed that, hearing I to proceed on 18/08/2023 at 8.00 am. When the matter came for hearing on 18/08/2023, both parties appeared through advocates. The plaintiff appeared through Mr. Rashid Kiliza, j I learned: counsel while the defendant enjoyed the legal service of Ms. Gigi Maajar,i learned counsel. At the commencement of hearing, Mr. Rashid Kiliza told this court that, he was not ready to proceed for hearing, as his client was no nowhere to be found following loss of his SIM card and that he was unable to communicate any information including hearing of this matter. He submitted further that, attempt was made to look for his client through his neighbours living together in Tanga but in vain. That in morning of 18/08/2023, the plaintiff called Mr. Rashid Kiliza and stated that, he received information from his neighbour that he was required to appear in court on 18/08/2023 however, as it was already, he could not make it. Mr. Rashid Kiliza expounded that, he lost communication with his client since July, 2023 and that upon receipt of information of the session on 7^^ August, 2023 he was unable to communicate with client as he was Page 2 of 9 lfV\ nowhere to be seen. Finally, Mr. Rashid Kiliza prayed for adjournment to i Monday. Responding to the submission and prayer by Mr. Rashid Kiliza seeking adjournment, Ms. Gigi Maajar submitted that, the Civil Procedure Code is I very cidar on the consequences for non-appearance when the matter is called for hearing. In her view the reason offered by the plaintiff through his counsel is insufficient to warrant this court grant want is asked for. It was submitted that, the plaintiff's conduct amount to disobedience of the lawful order of this court. Awarding prayer for adjournment in the circumstances is unwarranted and legally unjustifiable, to the plaintiff wants to appear in court on the day he so feels thus seeking adjournment. That, the parties were made aware of this special session long time as confirmed by the Plaintiff's counsel, that is to say on 7^"^ August, 2023 but nothing fruitful has been worked upon since then. In addition, Ms. Gigi Maajar submitted that, advocates as officers of the court, have duties to maintain constant communication with clients, therefore assertion by the plaintiff's counsel that he was unable to reach his client doesn't hold water. Page 3 of 9 Ms. Gigi Maajar finalised her submission by stating that, there is no t i sufficient reasons for this court to grant adjournment. She thus prayed for dismissal of the suit with costs. By way of rejoinder, Mr Rashid Kiliza submitted that, he has been in communication with his client, but he just lost him in July, 2023 and that he has been appearing in court. However, he stressed that, the reason for adjournment is that of loss of SIM card by the plaintiff, which stands as a genuine reason for adjournment. As to the prayer for costs, Mr. Rashid Kiliza submitted that, it should not be granted as the plaintiff is prevented by genuine cause. Having heard and considered the arguments from both sides, it is undisputed that, at least the litigants through their advocates were made aware of the hearing of the case since 7^^^ August, 2023. Further, when both counsels for the litigants appeared before me on 16^^ August, 2023 upon being summoned by court, no one indicated that, they had no knowledge of the special civil case session. Certainly, what they spoke to the court was representing the parties' position as well. Rescheduling was by consensus that the matter come for hearing on 18^^ August, 2023 at 8.00 am. Page 4 of 9 It is undisputed that, the matter came for hearing and the piaintiff failed i to appear. Mr. Rashid Kiliza learned counsel sought for adjournment of the hearing for the reason that he lost communication with his client and that inithe morning of August, 2023 he received a call from his client I that he was unreachable as his SIM Card got lost. It is trite law that, adjournment of hearing of a case fails within the discretionary supremacies of the court. However, such discretion has to be exercised judiciously. In other words, there must be cogent reason for seeking and granting adjournment. the crucial point for determination therefore is on whether there is a good/ sufficient cause for adjournment. This takes me to Order XVII Ruiel(l) of the Civil Procedure Code, Cap 33 R.E 2019 which provides that; 1.-(1)Atanystage ofthe suit the courtmay,ifsufficientcause isshown,grant time to the parties or to any ofthem,and may from time to time adjourn the hearing ofthe suit. The essence of the provision is that, under Order XVII Rule 1(1) such discretion can only be exercised where good and sufficient reason been shown. Page 5 of 9 'P'fA The reason for adjournment given by the plaintiffs counsel is on the 1 absence of communication with his client (the plaintiff) which is due to loss of SIM card. It is correct assertion as stated by Ms. Gigi Maajar learned counsel for the defendant that, it is the advocate's duty to have constant communication with the client and vice versa. In consideration of the fact that, Mr. Rashid Kiliza was made aware of the session since 7'^'^ August, 2023 and that the plaintiff lives at Tanga, and counting from the date Mr. Kiliza got information on civil session, it is more than ten (10)days. If he was to act in a smarter way, he could have sent someone to Tanga to convey such information but he did not. In the circumstances, I am of the settled view that, the plaintiff and his counsel had all means to communicate through. Further, the allegation that, the plaintiff lost SIM Card is with no proof at all. When a SIM card get lost, there must be a loss report from police or Service provider, such as Vodacom, Tigo, Airtel and the like. Nothing has been made available, in an attempt to make the reason good and sufficient one. Notwithstanding what is stated above, both counsels were made aware that, the judiciary has gone to the extent of allocating funds to have such Page 6 of 9 \aV<^ special civil case session. This acted as a worker up call, thus demanding I ^ for nothing but that, all stakeholders be made punctual to the task ahead for accomplishment of the court's objectives, thence value for money and proper utilization of tax payers' money. i I ' ■ ■ ■ " i Adjournment of cases for no good and sufficient cause has been one of i the grounds for delaying justice, thus accumulation of cases in courts of law. All stake holders needed to appreciate and ensure that the tax payers' money yield the intended outcome, that is disposition of all scheduled cases, unless adjourned for strong and compelling reasons which are beyond the stake holders' means. Acting to the contrary, the vision of judiciary which dictates for ''Timely and Quality Justice for All" will not be attained, should the court relax and allow adjournment for no good and sufficient cause. In my view, all stake holders should take judicial functions seriously and special ione, in particular disposition of cases. It should not be taken slightly and that cases can be adjourned even for flimsy reasons. All said and done, this court is satisfied beyond sane of doubt that, the plaintiff has miserably failed to discharge his duty of presenting good and sufficient reason for adjournment of hearing of this case. Thence, the judicial discretionary cannot be invoked in the circumstances. Page 7 of 9 The question which follows next is what is the consequences of non- 1 appearance of the plaintiff on the date the matter is fixed for hearing? The answer is provided under Order IX Rule 5 the Civil Procedure Code, Cap. 33 R.E 2019 which provides that; "Where the defendant appears and the plaintiff does not appear when the suit is caiied on for hearing,the courtshaiimake an orderthatthesuit be dismissed unless the defendant admits the claim, or part thereof, in which case the court shaii pass a decree against the defendant upon such admission and, where part oniy of the claim has been admitted, shaii dismiss the suitso far as it relates to the remainder" In the event and for the afore reasons, I find the prayer by the counsel for the plaintiff is devoid of merits for want of good and sufficient reason. As such, I am inclined to agree with Ms. Gigi Maajar iearned counsel for the defendant. Consequently, I hereby proceed to dismiss the suit. Costs to follow i the event. IT IS SO ORDERED. DATED at DAR ES SALAAM this August, 2023. Page 8 of 9 Uw G. P. MWJA JUD| 18/08/2023 RUi^iNG-delLVere'd at DAR ES SALAAM in chambers this 18'^ August, 2023. G. P. MAIATA JUD< 18/08/2023 Page 9 of 9