Ruling NKUBA NSENI PAUL

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISC. CIVIL APPLICATION NO. 16781 OF 2024 (Arising from PC. Civil Appeal No.41/2023original from Matrimonial Appeal No.46/2022 and Mwanza Urban Primary Court Matrimonial Cause No.99 of 2020). NKUBA NSEMI PAUL …………………………………….…………… APPLICANT

VERSUS GRACE JAMES MARWA ………………..………………………… RESPONDENT

RULING 26th & 29th November, 2024 CHUMA, J. The applicant is moving this court for the following orders: - a) Setting aside the dismissal order of PC Civil Appeal No 41 of 2023. b) Costs of the application to be in the due cause. The application is supported by an affidavit of the applicant Nkuba Nseni Paul. The applicant was represented by Mr. Kweka's advocate. This application was heard ex-parte against the respondent who entered no appearance in court despite being served by publication. The counsel for the applicant in his submission advanced health concerns as the main reason behind the entire application. Mr Kweka 1 supported his submission by annexture KLC-2 and 3 a medical examination report arguing that the applicant failed to appear in court on 30.8.2023 when the appeal was dismissed for want of prosecution. He finally urged this court to vacate the dismissal order and allow the appeal to be heard on merit with cost. Having carefully considered the submission of Mr. Kweka advocate for the applicant and my perusal of the record and pleadings, the issue that cries for determination is whether the present application has merit or otherwise. For the court to grant the sought order the applicant is required to establish sufficient reasons that prevented him from appearing in court. The scope of inquiry is limited to finding out whether there is "sufficient cause for

non-appearance" when the suit is called on for a hearing. Therefore, two things have to be established to attract or warrant this court grant the sought relief, one, the matter must be called on for a hearing, and two, the Court must be satisfied that there are sufficient causes for non-appearance at the time when the matter was called on for hearing. The expression "sufficient cause" has not been defined in our 2 jurisdiction. The court has found the same position in other jurisdictions like India where Justice C. K Takwani in his book titled Civil Procedure with Limitation Act, 1963, 7th Edition, on page 281, it was stated in the case of UCO Bank Vs. Iyengar Consultancy Services (P) Ltd, 1994 Supp (2) SCC 399 that, the expression "sufficient cause" has not been defined anywhere in the Code. It is therefore a question to be determined by the facts and circumstances of each case. It was further stated in the same book that, the word "sufficient cause" must be liberally construed to enable the court to exercise powers ex debito justitiae. The position of the law stated in the above- referred book is almost similar to the position of the law stated by the Court of Appeal of Tanzania in the case of Yusuph Same & Another Vs. Hadija Yusuph, Civil Application No. 1 of 2001 where it was stated that: - "It should be observed that the term "sufficient cause" should not be interpreted

narrowly but should be given a wide interpretation to encompass all reasons or cases which are outside the applicant's power to control or influence resulting in delay in taking any necessary step...." Although the above-cited case was dealing with an application 3 for an extension of time the court has found it can borrow a leaf from the interpretation given therein and apply the same in the matter at hand where the applicant is seeking an order of setting aside a dismissal order. Guided by the above position of the law the court has found that, the main reason for this application is a health issue which is a supervening event beyond the applicants’ control. His supporting evidence namely medical examination reports are herein filed. In my view, the sequence of events narrated by the learned counsel for the applicant on how the applicant encountered the said accident leading to a failure to appear in court amounts to sufficient cause. In the light of all that I have stated herein above, I am inclined to find the application meritorious and it is hereby allowed. The dismissal order made by this court on 30.8.2023 in PC. Civil Appeal No. 41 of 2023 is vacated. Owing to the circumstances leading to this application I make no order as to costs. It is so ordered. DATED at MWANZA this 29th day of November, 2024. W.M. CHUMA

JUDGE 4 The ruling delivered in court in the attendance of Mr. Kweka advocate for the applicant and in the absence of the respondent on this 29th day of November, 2024. W.M. CHUMA

JUDGE 5