20141028 TZHC Dar es Salaam

t· IN THE HIGH COURT OF TANZANIA AT DARESALAAM CIVIL CASE No. 15 OF 2009 NATIONAL INSTITUTE OF TRANSPORT .............. PLAINTIFF Versus; . THE EDITOR, DIRA YA_MrANZANIA ........ :.......... DEFENDANT .RULING Utamwa, J. In this suit, the plaintiff,. who is•.represented by Mr. Wawa learned counsel, testified and closed the ca~e (by yesterday, the 2ih day of October, 2014 ). Upon the closure of the plaintiffs case, Mr. Mdamu, •, learned counsel for the defendant prayed for adjournment of the case so , that the defence case could proceed. He proposed the hearing to proceed today, and undertook to produce two Witnesses for the purpose. Today, Mr. Mdamu learned counsel appeared without any witness · and prayed for another adjournment of the defence case to another unspecified date for the following reasons; that one of the intended defence witness (Mr. Kasim Mbeja) is reported dead. The other witness, one Mr. Magembe has informed him (Mr. Mdamu learned counsel) that he is sick of TB and is on way to hospital (Mwananyamala Hospital) for treatment (apparently thorough telephone conversations) and he will not be strong enough to give evidence ,. by tomorrow, which is the end of the scheduled session for this case which is being heard. under a special . session program. Page 1 of 5 Mr. Wawa learned counsel for the plaintiff vehemently objected to the prayed adjournment on the following grounds; that the reasons for adjournment ·are doubtful because the case was fixed for hearing under a special session of cleaning up old cases. This arrangement was done a month ago, the defendant might have thus known on the death and sickness of the two witness (respectively) before yesterday when the defendant's counsel promised to produce the witnesses today. He added that, there is no evidence of the death and the illness of the witnesses at least by way of a death certificate and diagnostic document respectively. If at all. the two witnesses got the alleged respective calamities, the learned counsel for the' defendant could have informed the court about the same yesterday. - Mr. Wawa learned counsel also lamented that this case is old enough, it has been pending ill' court for about six years now and TB cases take long time for treatment. He thus urged this court to refuse the adjournment prayed by the defendant, find that the defendant has failed to produce his evidence, and proceed to decide the case on the bases of the plaintiffs evidence. In his rejoinder, Mr. Mdamu learned counsel was of the view that the main concern is on the live witness, Mr. Magembe who is sick. He argued further that until yesterday, the plaintiffs case file had been with another advocate, Mr. Mrindoko following the fact that his client had taken the file to him (Mr. Mrindoko) when he (Mr. Mdamu) was on studies. It was only on Sunday, the 26 th of October, 2014 when the defendant re-engaged him (Mr. Mdamu) to handle the case on the ground that Mr. Mrindoko was attending another case. He could not tum down the request by the defendant, he came to court and proceeded with the hearing of the case because he respects this special program of court sessions. He submitted further that it would have been a different case Page 2 of 5 had he been re-involved in the case before the 26th of o·ctober, 2014. He added that his sick witness has confirmed that he is sick and the defendant has not thus failed to produce evidence. He thus reiterated his prayer for adjournment. The main issues before me is t~erefore whether or not under the circumstances of the case the prayed adjournment can be granted. The , law is clear that cases must be adjourned for good reasons ·only. In my view, however, I am not convinced that there are good reason to adjourn this case at hand for the following grounds; from the record and arguments by the parties it is lucid that there is laxity on the _part of the · defendant in conducting this case. It is true as argued by the plaintiffs counsel that this . case has been pending . in this curt for about six years now as it was filed in court way back in February, 2009. It has been adjourned mostly at the instance of the defendant; see for example the records dated 30/10/2013, 15/04/2014 and 27/08/2014 when the court . . . . decided to waive t4e :tJ,nal pre-trial conference following the prolonged absence of the deferidarit and fixed the case for hearing (see order of the court on that date). When the case ·was fixed for hearing under this special program (from yesterday), the defendant send an advocate (Mr. Mdamu learned counsel) who had been re-instructed only a day before the hearing date (a~ argued by Mr. Mdamu himself). However, as rightly argued by Mr. Wawa learned counsel for the P.laintiff, the notice of the hearing date was sent to the defendant about a month ago (i. e on the 2nd day of October, 2014, as indicated into the summons dated 2/10/2014 herein filed, and served to the defendant's advocates). This was surely an ample time for a serious defend ant to arrange his affairs, get another .. advocate (if he wished) and prepare himself for the hearing of the case. I d ·would add here that, though the right to legal representation is a fundamental (constitutional) right, parties to court proceedings should use this right with care and without causing delays to court proceedings. d ·. Page 3 of 5 I am thus convinced that, had the defendant been serious enough, he would have known about the death and sickness of his witnesses before his counsel could appeal before this· court yesterday and make a pro1nise to produce the two witnesses today. Otherwise that proves lack of communication between the defendant and his counsel, which in my settled view is not a good ground for adjourning a case. I thus agree that, the circumstances of this matter renders the reasons for adjourning this case doubtful as right!y argued, by Mr. Wawa learned counsel for the plaintiff, and it is more so con~:idering the fact that there was no any authentic evidence of the alleged death and sickness of the witnesses. Further, it is more so considering the fact that the court is not informed of the dates of the alleged death and sickness respectively. Under the circumstances of this case, one would expect the production of a death certificate and a medical chit to suppmt the death and sickness respectively, but nothing was produced. It must be clear hear here that, I am not doubting the honesty of Mr. Mdamu learned counsel as a court officer, but 1ny point is, he has also been informed of the alleged death and sickness by other persons whose statements were not verified in any way, for the court to rely upon in•making its orders. · · Lastly, I must ma!<e a comment on cases ~xed _for hearing under special sessions like the one under discussion. It is a fact needing no evidential proof that this court' is overwhehned by old cases for un avoidable reasons. The interest of justice would thus require that, when the judiciary makes bonafide and deliberate arrangements to clean up . old cases from cou1i registries as it is doing currently by launching these · special sessions, all parties to court proceedings subjected under the scheme should assign a high respect to· that aITangement and play the same tune so that the intended goals ~an be achieved, of course :without affecting the right to fair. trial 'Yhich is a constitutional right to all the parties enshrined under article 13 (6) (a) of the Constitution of the Page 4 of 5 United Republic of Tanzania, 1977, Cap. 2 R. E. 2002. The above demonstrated conduct of the defendant in the case at hand did not show a sufficient cooperation in the exercise and is inconsistent with a party who is seriously defending the case. I therefore, agree with the learned counsel for the plaintiff that the prayer for adjournment cannot be granted under the circumstances· of this case. The main issue is thus negatively answered and I reject that prayer. I thus hold that the defendant has failed to produce his defence evidence without any reason as argued by t~e plaintiffs counsel. I also grant the prayer made by the plaintiffs counsel and I order that the court will proceed to make its judgement on the bases of the plaintiffs evidence. It is so ordered. JHK.UJ'AMWA JUDGE d · 28/10/2014 ., Page 5 of 5