20070807 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA MISC. CML APPLICATION NO. 86 OF 2003 (From High Court Civil Appeal No.61/2002 Original Primary Court Babati Civil Case No.40/2001) MASHAKA ATHUMANI .................... APPLICANT Versus HUMAY NAN GAY ........................ RESPONDENT RULING CHOCHA, .J. The applicant Mashaka Athumani made an application by way of chamber summons supported by an affidavit. He had basically one prayer couched as fallows: "That the honourable court be pleased order (sic) restoration of PC ClO Appeal 61/2002 which was dismissed on 26/8/2002 for want of appearance by counsel." On the 15 th May 2006 my predecessor granted the applicant leave to argue the application by way of written submission, but instead he prepared additional grounds of appeal. He was further granted opportunity to rectify the error by fulfilling what the court had wanted t him to do. The written submission proper was resubmitted on the 28 th August 2006. No reply was filed by the respondent. I I • r· I had difficult in the first place with thei applicant's ·,: citation of the alleged dismissed case, which he cited as PC ~10 appeal 61/2002. Later I discovered that he was referring to PC Civil Appeal 61/2002. I further discovered that the applicant's application was for 1: I restoration of the appeal dismissed on the 26 th August 2006. The applicant in his affidavit narrated grounds behind his failure to appear on the fateful day when the appeal wa$ dismissed. In his submission, the applicant evaluates the merits and demerits of the intended appeal. This was not the ~pirit of his application. The applicant ought to confine and limit his retjlarks to showing cause of his failure to appear on the 26 th August, in consequent which his appeal was dismissed. The arguments in his submission would be valid upon ' restoration of the intended appeal. Otherwise i . the submission is premature and not supportive to the application. I I will not consider the same. The applicant says his non appe~rance on the fateful day was caused by confusion. That he mistook the date of hearing from 26 th to 28 th , only to find that his appeal had already been dismissed. I have carefully evaluated the applicant's ,, interest in the appeal through the chronology of events. The ~ppeal was dismissed on the 26 th August. He learnt of the dismissal two days later, and on the 9th September, he had a solution, to wit, to apply for restoration and indeed, he put the application in motion. , The applicant has satisfied me that he was affected by the dismissal order. The period he spent to look and put in motion the I solution is impressive to his determination to have the appeal decided on merits. The applicant had properly exercised his rights u/s 9 of the First Schedule to the Law of Limitation Act 10/71, on the basis which his application for restoration of an appeal dismissed on the 26 th August 2003 is granted, and the appeal is accordingly restored. Court: Ruling delivered in presence of the applicant. N. P. Z. CHOCHA 07/08/2007 .JUDGE /ljk. \