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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE)

AT TEMEKE CIVIL REVISION NO. 22355 OF 2024 MUSIRA GASAYA........................................................... APPLICANT MUSSIN ABDALLAH SIMAI.......................................... RESPONDENT

RULING Date of last order: 28/01/2025 Date of Ruling: 31/01/2025 S. D. MWAIPOPO J, This ruling is in respect of an issue raised by the learned counsel for the Applicant to the effect that that the Respondent delayed in filing his Counter Affidavit in court contrary to the order of the court. The applicant in this case is represented by learned advocate Godfrey Ukwonga and the Respondent has been appearing in court in person though at one point he received legal assistance from one Bertha Marco, learned Advocate in preparing the court documents. The background of the issue traces back to 20th September 2024 when this court ordered the parties to complete the schedule of filing pleadings in court whereby Respondent was ordered to file his Counter Affidavit on or before 02/10/2024, the Applicant to file a Reply to Counter Affidavit if any on or before 08/10/2024 and hearing was fixed on 17/10/2024 at 9.30 hrs However, when parties appeared in court on 17/ 10 / 2024, the Respondent informed the court that he could not file the Counter Affidavit on time due to the fact that the Advocate who was assisting him fell sick, then the court issued further orders for Respondent to file his CA on or before 28/10/2024, a Reply to Counter Affidavit if any on 04/11 /2024 and a Hearing date was set on 07/ 11/ 2024 at 11.30 hrs. However when the matter was called again in court on 07/ 11/ 2024,

the court noted that the Respondent had filed a different document, following discussion by both parties to the case, the Respondent was ordered again to file an appropriate document and another schedule was given for the Counter Affidavit to be filed on or before 18/11 / 2024 , Rejoinder on or before 23/ 11/ 2024 and Ruling was fixed on 11/ 12 / 2024 at 2.00 hrs. In responding to the order of the court, the Respondent filed his Counter Affidavit on 22/ 11/ 2024 instead of 18/11/2025, something which prompted the Applicant to raise an issue of the delay in filing the Counter Affidavit. He thus prayed for the court to issue its decision in the absence of the Counter Affidavit which was filed out of time since in his view he was of the position that Respondent's conduct was not due to ignorance but a way of gaining sympathy from the court. Considering the importance of the right to be heard I then ordered the Respondent to file his Response on the issue raised by the Applicant. The Respondent complied with the schedule ordered by the court. Submitting in rebuttal the Respondent stated that he was served with the Applicant's submissions on the issue raised, on 19th December 2024, stating that the Respondent's Counter Affidavit filed before this honorable court was filed out of time. He further acknowledged the fact he was given by the court seven days to file his Counter affidavit

on 18th day of November 2024, in which the same lapsed on 18th day of November 2024; unfortunately, the he was not able to act upon the given time. He contended further that the reason for the delay was due to the inability to pay an advocate who could help him to prepare the said Counter Affidavit, until on 20th day of November 2024 when he got an advocate (Legal Aid) who assisted him to prepare the said Counter Affidavit. Thereafter the said advocate prepared the document and filed the Counter Affidavit on 21st day of November 2024, and filed the same via CMS on 22nd day of November (which was a Friday), then the Respondent presented the said Counter Affidavit before this honorable court on 25th day of November 2024 and served the same to the Applicant on 26th day of November 2024. The Respondent apologized for all inconveniences that he caused due to the said delay and he prayed to this honorable court to disregard legal technicalities, rather to stick on substantive justice, just because the delay was not deliberately rather accidental Having heard the submissions of the parties: the central issue to be resolved is whether the Counter Affidavit filed by the Respondent should be denied/ rejected by this court and that the court should proceed to issue its ruling on the Application for Revision without considering the Counter Affidavit. I have gone through the submissions of

the parties and I will be very brief in my determination of the matter. Based on the record available before the court, it is Indeed it is true that the Respondent was initially given extension of time to file his Counter Affidavit after his Advocate had filed a wrong document for him in court (that is written submissions instead of a CA). In the interest of justice, I ordered the Respondent to file an appropriate document as I considered that negligence was on the part of the Advocate being an expert in the field whose duty in this case is only to prepare the documents (since he has never appeared before me) and then let the Respondent fend for himself in court. Following the extension of time granted the Respondent was ordered to file his Counter Affidavit on 18/11/ 2024, however, he filed the same on 22/11/ 2024 and served the Applicant on 26/11. The Applicant raised an issue that the Counter Affidavit be ignored and the court proceed to issue its ruling on the Revision. The Respondent has contended that the delay has been due to inability to pay the advocate since he did not have money and once he got the money, he paid the Advocate who prepared the document and filed it on 22/11/2025 I have reviewed both submissions and specifically the reasons submitted by the Respondent. I have observed that the Respondent has been appearing in court himself. I have paid due regard to

the reasons he submitted in court that the Advocate who has been assisting him initially filed wrong documents in court. That is learned advocate Bertha Marco. I have also noted that he had also to look for another advocate to prepare the actual Counter Affidavit filed in court, therefore it could be true that he did not have the money to pay the advocate on time, since he had incurred similar expenses previously only to find out in court that the document which was prepared by the Advocate was wrong. Further, that he has been filing the documents in his own capacity in court. I further considered the fact that despite him being a lay person he has still managed to file his Counter Affidavit even though it was filed late. It is already in the court corridors or e-cms to be specific. I find that this level of demonstration of diligence and resilience in knocking the doors of justice, on the part of the Respondent should not be denied for some technical grounds and that procedural rules should not indeed be used to defeat justice as argued by the Respondent. Even though I am alive to the rule that court orders must be complied with and that the said rule is legendary, I still find that the overriding objective principle was also put in place to act as a safety valve in situations like these where the court would still have to act judiciously focusing on substantive justice rather

than technicalities. Hence, in the interest of justice, I proceed to allow the Counter Affidavit to form part of the records as if it was filed on time, in other words I have retrospectively granted the necessary extension for the Counter Affidavit to be file and form part of the records. Since the Applicant has already filed a reply to Counter Affidavit then I further order that the matter should proceed for hearing on merit. It so ordered Dated at Temeke this 31st Day of January 2025 S. D. MWAIPOPO

JUDGE 31/01/2025