ponsiano okullo vs national milling corporation 1997 tzhc 219 24 october 1997

IN THE HIGH COURT OF TANZANIA AT PAR ES 'SALAAM CIVIL APPEAL NO. . 2/1997 P ONSIANO OKULLO. ..... APPELLANT Versus NATIONAL MILLING CORPORATION.. RESPONDENT JUDGMENT USEKELA.J: On 21.6.95 Nchimbi, Senior Resident Magistrate, dismissed RM. Civil Case No. 162 of 1992 under Order 9 Rule 8 of the Civil Procedure Code for non-appearance of the n plaintiff. After that on 26.6.95 the plaintiff filed a chamber application under Order 9 Rules 9 (l) 13 (l) ^nd. section 95 of the CPC seeking the following order. 11 1. That the order dismissing the suit datdd ,21st June, 1995 be set aside and a day be appointed to determine the main suit on its own merits”. The application was supported by an affidavit of William C, Mwakasungula learned advocate for the plaintiff. This application was dismissed on 11.4.96 hence this appeal to this court against that Ruling. Mr. Mwakasungula, leafned advocate appeared for the appellant and Mrs. Mukalle appeared for the respondent. The memorandum of appeal raises the following grounds of appeal, namely- - " 1. The learned trial magistrate erred in law and in. fact in not holding that the clerks in the chambers of the ,.have. appellants advocate could^not imme­ diately know what predicament be fell the advocate for the appellant as to be able to attend the court In good time. 2. The learned trial magistrate erred in*. «V law and in fact in holding that commit* cation between the home of the advocate for the appellant and his office in the city centre was not possible in tfte 2 circumstances because of the distance”. In order to appreciate these grounds of appeal, it is in my view necessary to examine Mr* Mwakasungula's supporting affidavit in the plaintiff's application in the trial court. A few paragraphs will suffice for own purposes:— ;l 4* That this matter was however dismissed for want of appearance of plaintiff/applicant herein* 5. That on that material date, was bereaved by my next door neighbour one Mr. Joboka at Ukonga where I had to participate in the funeral. 6. That my clerk could not attend the case as he was not aware of my predicament. 7. That I am informed by the applicant that he was at Kivukoni Court on time but never heard his case being called out.” Before me, Mr. Mwakasungula has repeated these aver­ ments in his affidavit. He did not attend the court since his neighbour at Ukonga was bereaved and had to attend the fimeral, that he had no telephone contact with his office to notify his clerk though he did not say whether or not he thought of boarding a ” daladala5* or any other available transport to rush to his chambers in town. He added that his client, the applicant was present in court on the materal date but did not hear his case being called out. The learned advocate said he believed the appellant who had no reason to tell lies or fabricate a story. On her part Mr. Makalle, learned advocate submitted that the appellant has not advanced sufficient cause to enable the court to invoke Order 9 rule 9 (l) of the CPC and that Order 9 rule 13 (l) was inapplicable to the circu­ mstances of this suit. Order 9 rule (l) of the CPC is in the following terms- - :I 9 (l) where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same case .*/3 * 3 = of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit!>. The trial magistrate was well-aware of this provision of the law and was of the view that the reasons advanced by the learned advocate did not amount to sufficient cause to enable him to set aside the dismissal order he had provicusly made. I am in entire agreement with him. The unnamed clerks in the chambers of the appellants advocate did not file any affidavit to explain generally or in detail what exactly happened on the material date. The court would indeed like to know wheat .steps the annamed clerks did take in the absence of Mr. Mwakasungula himself. As clerks in the said chambers, I quess they would know the court calendar of Mr. Mwakasungula. There is no affidavit evidence to this effect. It is in Mr. Mwakasungula’s aggidavit that the appellant was physically present at the court premises but did not hear his case being called out. Again there is no affidavit evidence from the appellant himself except hearsay evidence from Mr. Mwakasungula This cannot support such an allegation. £n the circumstances I agree with the trial magistrate that no sufficient cause had been shown to invoke order 9 rule 9 (l) of the CPC. The appeal is dismissed in its entirety with costs. NSEKELA JUDGE 24.10.97, CERTIFIED TRUE CCPY OF THE ORIGINAL. pep u t y IIe g i s t r a r