20170705 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CIVIL APPLICATION NO. 90 OF 2011 PATSON MATONYA .....................................................·.... APPLICANT

VERSUS 1. THE REGISTRAR INDUSTRIAL~

COURT OF TANZANIA 2. THE ATTORNEY GENERAL __ ................... RESPONDENTS (Application for Restoration of Civil Application No. 102 "B" of 2010) (Nsekela, J.A) Dated the 4 th day of July, 2011 in Civil Application No. 102 "B" of 2010

RULING 3rd & 11 th July, 2017 MWAMBEGELE, J.A.: On 04.07.2011, the Court dismissed Civil Application No. 102 "B" of 2010 under rule 63 (1) of the Tanzania Court of Appeal Rules, 2009 - GN No. 368 of 2009 (henceforth "the Rules''). Patson Matonya; the applicant herein, was the applicant in that application. The applicant has now come to this Court by a Notice of Motion taken out under the provisions of rule 63 (2) of the Rules I I, I' I seeking to hav~ that application restored. The Notice of Motion is I supported by an affidavit duly sworn to by Dominic Ladislaus 1 i Kashumbugu; the applicant's counsel and resisted by an affidavit I , duly sworn to by Ponziano Lukosi; a Principal State Attorney in the I Attorney Gene~al's Chambers. I When the application was called on for hearing on 13.06.2017, the respondents was represented by Mr. Ponziano Lukosi; Principal State Attorney. The applicant appeared in person and unrepresented. Before the hearing could commence, the I applicant rose to pray for an order that the application be disposed I of by way of written submissions. He intimated to the Court that I he was unrepresented because his advocate was in ill health and I that he had no1 money to engage another. However, he stated that I he would find one to draft documents for him. As Mr. Lukosi had no objection t0 the prayer, the Court found it appropriate to grant ; I the prayer.

Having granted the prayer the Court proceeded to I schedule the tfates within which the written submissions by the I parties could IDe lodged in Court. The submissions in chief were ordered to be lodged by 20.06.2017, reply submissions by 2 " 27.06.2017 and rejoinder submissions, if any, by 30.06.2017. The Ruling date was ordered to be scheduled on 03.07.2017. It is only the applicant who has complied with the order by lodging the submissions-in-chief and timeously so. The respondents have not lodged theirs. Neither have they lodged any application to seek an enlargement of time within which to file the same. Failure by a party to lodge written submissions after the Court has ordered a hearing by written submissions is tantamount to I being absent without notice on the date of hearing - see National ; Insurance Corporation of (T) Ltd & another v. Shengena Limited, Civil Application No. 20 of 2007 (unreported). In that case an application for review was dismissed in the High Court because the applicant failed to prosecute it by not filing written submissions in time as ordered. On appeal to this Court, it was observed: "The Applicant did not file submission on due date as ordered. Naturally, the court could not be made impotent by a party's inaction. It had to act ... it is trite law that failure to file submission{s} 3 •·' is tantamount to failure to prosecute

one's case.,✓ [Emphasis supplied]. Going by the same parity of reasoning, it may well be stated that failure to file reply submissions when the Court ordered a hearing by written submissions is tantamount to failure to defend one's case. Thus, the respondents, having not lodged their reply submissions as ordered by the Court, and having not filed any application for extension of time within which to file the same, it is taken as if they did not appear when the application was fixed for hearing and without notice. That being the case, I shall proceed to determine the application under rule 63 (3) of the Rules; without the advantage of the respondent's arguments as if it was only the applicant who had appeared at the hearing. In the five-paragraph affidavit supporting the Notice of Motion, the reason why counsel for the applicant could not appear on the date the application was set down for hearing is deposed at paras 3 and 4 that he was bereaved of an uncle; a certain Juvenali 4 Kashumbugu,: who had passed away on 29.06.2011 and had travelled to Ngara to attend the burial ceremony. The deponent has appended with the affidavit two bus tickets to substantiate his deposition. The same reason is repeated in the written submissions. , I have anxiously read the affidavit as well as the written submissions :by the applicant and accorded them anxious consideration as well. The

provisions of sub-rule (3) of rule 63 of the Rules under which the applicant has made his application state that in order for an applicant to be granted the prayer for restoration of the application dismissed for want of appearance on the date called on for hearing, the applicant shall show sufficient cause which prevented hir:n from appearing. The question which comes to the fore at this juncture is whether or not, from the reasons deposed in the affidavit and averred in the written submissions, the applicant has shown that counsel for the applicant was prevented by sufficient cause from appearing when the application was called on for hearing. , 5 ·' As a1lready stated, the reason given by the applicant is that his counsel did not appear on the day the application was slated for hearing because he was bereaved of an uncle and had travelled to Ngara for funeral purposes. That uncle; it is deposed, died on 29.06.2011 and counsel for the applicant, as can be deciphered ' from the tickets which form part of the affidavit, travelled to Ngara on 01.07.2011 and returned on 05.07.2011. I have anxiously considered thi,s reason of nonappearance. Having so done, I am of the considered view that the applicant has successfully tilted the balance in his. favour to warrant the grant of the order sought. The application which is sought to be restored was dismissed on 04.07.2011 and the

present application was lodged in Court on 29.07.2011; some 24 days after the applicant's counsel returned from Ngara. I think this was prompt enough in the circumstances. Likewise, the, applicant having shown interest in prosecuting the dismissed application even after some six years of dismissal, is another reason why the interest of justice will triumph if the order ' for its restor:ation is granted so that the applicant is accorded opportunity to prosecute his application to its logical finality. 6 I In the end, I would, and hereby, grant the application. I order that Civil Application No. 102 "B" of 2011 should be restored to the register with immediate effect and the Registrar should fix the same for hearing as soon as practicable. Costs of the present application shall abide the result of the main application. Order accordingly. DATED at DAR ES SALAAM this 5th day of July, 2017. J.C.M. MWAMBEGELE

JUSTICE OF APPEAL I certify that this is a true copy of the original. E.F.

DEPUTY ISTRAR COURT O · PPEAL 7