20151210 TZHC Dar es Salaam 1

f, l IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL REVISION NO. 357 OF 2013 (Originating from the decision and decree of the Resident Magistrate's Court at Kinondoni in Civil Case No. 227 of 2002) MUHARAM MGUMBA (as administrator of the late KWEGE SEIF) ................... APPLICANT VERSUS 1. JOSEPH AMBROSE } ............... . RESPONDENTS 2. RHIMO AUCTION MART RULING MKASIMONGWA,J. MUHARAM MGUMBA (as Administrator of the lat-e KWEGE SEIF) , \ (Appellant) is aggrieved by the decision and decree qf the Resident · Magistrate Court at Kinondoni in Civil Case No 227 of 2002. He thought to apply for revision of the decision to this court. Being aware of that he was time barred in instituting the Application the Applicant came to this court and filed a Chamber Summons seeking for the following orders:- 1. An order staying the execution of the decree of the Resident Magistrate's Court of Kinondoni in Civil Case No. 227 of 2002 pending hearing and determination of the application for extension of time and for revision. 1 2. An order extending time within which to file an application for - revision of the decision and proceedings of the Resident -Magistrate's - Court of Kinondoni in Civil Case No. 227 of 2002. 3. Call for and inspect the records and proceedings of the Resident Magistrate Court of Kinondoni in Civil Case No. 227 of 2002 with a view to satisfying itself as to its legality, propriety and correctness. 4. An order revising the decision of the Resident Magistrate court of Kinondoni in Civil Case No 227/2002 dismissing the application for the return of the file and proceedings thereof. 5. Cost of the Application be provided for. The chamber summons was filed under Section 14 (1) of the Law of Limitation Act, Section 44 (1) (b) of the Magistrates Courts Act and Order XXXIX Rule 5 (1) and (4) of the Civil Procedure Code and all other enabling provisions of the law and it was supported by the applicant's own affidavit. The Application came for hearing on 5/11/2013 before Mwarija, J (as he then was) and that it was dismissed for none-appearance by the applicant. This is an application by the applicant seeking for an order setting aside the order dated 5th November, 2013 dismissing the revision and order for restoration of the revision. The Application is brought by way of the Chamber Summons supported by the affidavit of Mr. ABDALLAH AL-BAKRY. In the Affidavit, the deponent averred to the effect that he is the advocate of the High Court and that is representing the applicant and therefore conversant with the facts he deposed. He was present in the court premises on 5th of November, 2013. When the matter was called up before 2 ,. •• Mwarija, J (as the then was) for mention he was appearing before Shangwa, J in Civil Case No. 183 of 2011, Abass Tarimba's Case. As the case was set for mention and that it was called first he had to enter appearance before Shangwa, J to seek for adjournment as his partner one Mr. Issa Maige had travelled to Simiyu Bariadi to attend his sick, brother. Immediately after the adjournment he quickly proceeded to the chamber of His lordship Mwarija, J (as to then was) only to learn from the chamber clerk that the matter had been dismissed. He had been regularly attending to court and that their non-appearance on 5th of November, 2013 was neither caused by his negligence nor inaction but for reasons stated in the affidavit. This Application was set for hearing on 3/11/2015. Although the Respondent was served with the Notice of hearing he did not show up and no reasons were given to justify the absence. The matter was therefore ordered to proceed ex-parte. Arguing the application Mr. Samwel Mgare learned advocate contended that, this case was being conducted by Mr. Maige who has been, recently, appointed a judge of the High Court. His firm has been acquired by YAKUB & ASSOCIATES CHAMBER. The Application is made under Section 95 and Order lX Rule 4 of the Civil Procedure Code and the applicant prays the court to set aside the order dated 5/11/2013 dismissing the Revision and order for restoration of the Revision. In his submission, although it was not expressly stated, Mr. Mgare adopted the contents of the affidavit filed in support of the application to be part of the submitted. This is exhibited by the fact that he repeated all 3 what is stated in the Affidavit when submitting. He added that although the chamber summons and the supporting affidavit were served to the Respondent, the latter did did not file a counter affidavit or even appear in court. He believes that the Respondent has conceded to the application and that it is in the interest of justice if the revision is restored and heard on merit. In determining the matter, the court should determine whether none- appearance by the applicant on 5/11/2013 was justified. The counsel for the applicant shows that on the material date, the then counsel for the Applicant was in court premises and that he was appearing before Shangwa, J in Civil Case No. 183 of 2011 when the Revision Case was called before Marija, J (as he there was). Surely a person cannot be in two places at one particular time. Our supreme court, the Court of Appeal of Tanzania, had the following to say in the Case of K.V. CONSTRUCTION LIMITED V/S MWANANCHI ENGINEERING & CONSTRUCTIN, CIVIL APPLICATION NO. 50 OF 2004, (Unreported) that:- "... parties/ most of all advocates must take court hearing dates with the seriousness they deserve. A party and especially an advocate who is familiar with court proceedings/ know that they have to furnish the court with adequate evidence of their inability to appear at the hearing" It is clear from this decision of the Court of Appeal of Tanzania that where a party and especially and advocate is unable to appear at the hearing he must furnish the court with adequate evidence of his inability to appear at the hearing. The question herein our case is whether there was adequate evidence of inability given by the counsel for the Applicant. In 4 this regard the applicant must prove that on the material date and time he was appearing before Shangwa, J when the case, a subject matter of this application was called before Mwarija, J (a? he then was). What is in court is a sweeping statement of the Applicant/applicant's advocate to that effect. Any reasonable person in the applicant's position would have proved the statement by producing as evidence, the Notice of Hearing/Mention of the matter which was before Shangwa, J. Alternatively the Applicant could have produced to the court the certified copy of the proceedings the case before Shangwa,J on that particular date. This was not done. A bare statement, that the counsel was in the court premises appearing before a Judge in another case is, in my view, not enough to warrant restoration of a matter which was dismissed for non-appearance by the party. From what is discussed herein above, this application is dismissed. As the Respondent did not file the counter affidavit or appear in court I make no order as to costs in this matter. Dated Dar es Salaam this 10th day of December, 2015 c::1-~- E. J. Mkas~oAg:a JUDGE 10/12/2015 5 Date: 10/12/2015 Coram: Mkasimongwa, J For the Applicant For the Respondent C.C. Emma Mr. Halika Nzige (Advocate): My lord, I am for the Applicant. The Respondents are not in court. The matter is coming up for ruling. We are prepared for the ruling. Court: Ruling delivered in Chambers this 10th day of December, 2015 in the presence of Mr. Haluka Nzige, the learned counsel for the Applicant. Right of Appeal is explained. ~~ E. J. Mkasimongwa JUDGE 10/12/2015 6