19971024 TZHC Dar es Salaam

IN THE HIGH comn OF TANZANIA A'J;:_J211.iL,ES SALAAM CIVIL APPEAL NO •• 2/1997 P ONSIANO OKULLO •••••••••• o ~ • • • APPELLJ-\NT Versus NATIONAL MILLING COf<POH.A'l'IO\~ •• RESPONDENT . JUDGMENT NSEKELA,J: On 21.6.95 Nchimbi, Senior Resident Magistrate, ,. dismissed Hl"VI. Civil Case No. 162 of 1992 under Order 9 i{ule 8 of the Civil r, Procedure Code for non-appearance of the . plaintiff. After that on 26.6.95 the plaintiff filed a chamber application under ?rder 9 rlules 9 (1) ·13 (1) ~d section 95 of the C.i? C seeking the following order. 11 1. That the order dismissing the suit dated .21st June, 1995 be set aside and a d~y be appointed to.determine the main suit on its own nwri ts 11 • ·' 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 Huling. Mr. Mwakasungula, lea:fned advocate appeared for thG nppellant and Mrs. Mukalle appeared for thE: respondent. The m0morandum of appeal raises the following grounds of appeal, namGly- - i: 1. The learned trial mn.gistrate erred in law and in fact in not holding that the clerks in the ch~mbers of the have. appellmits advocate coul dLnot imme- diately lmow what predicament be fell the advocate for the appellant as to be able to attend the· court in good time. 2. The lean1ed trial magistrate erred in~ law and in fact in holding that c ~ cation between the home of the advocate L,r the appellant and his office in the city centre was not possible in the ••• /2 = 2 = circumstances because of the distance". In order to eppreciate these gvounds of appeal, it is in my view nec.-::ssary to examine Mr. Mwakesungula' s supporting affidavit in th~ plaintiff's application in the tried court. A few paragraphs will suffice for own purposes; -- n L~ •. - Thstthis matter was however dismissed for wnnt of appearance of plaintiff/applicant herein.· 5. That on that material date, was berenved by my next door neighbour one Mr. Jobokc1 at Ukcmgn where I had to particip2te in the fun~ral. 6. Th3t my clerk could not attend the case as· he was not aware of my predicamcmt. 7. ThBt I am informed by the applicant that he was at Kivukoni Court on time but never heard his case being call Eid out. 11 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 flil~eral, , that he had no telephone contact with his --office to notify his clerk though he did not say whether or net he thought of boarding a II daladalaa or any other available transport to rush to his chambers in tovm. 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 reascn to· tell lies or fabricate a· story. On her part Mr Makallc, learned advocate 6 submit_ted that the appellant has not advanced suff iciEmt cause to enable the court to invoke Order 9 rule 9 (1) of the CPC and that Order 9 rule 13 (1) was inapplicable to the circu- mstances of this suit. Order 9 rule (1) of the CPC is in the following terms- - " 9 (1) where a suit is wholly or partly dismissed unde1· rule 8, - the plaintiff shall be precluded fr.om bringing a fresh suit in respect of the same case •.••• •/3 ,,,. . = 3 = of action. But he tr13y apply for an order to set the dismissal aside, and if he ~,-~------------------ satisfies the court th::i.t there --was sufficient ,_. . .£....~~ for hiLnon-appearan£.Ll"'ha1 ,.the suit was called on for hearing, the court shall make an order setting 3.side tho dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the sui t 1• . The trial magistrate was well-aware of this provision of tb'.:! 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 previously made. I am in entire agreement with him. 'The unnamed clerks in the chambers of the appellrmts advocate did not file any affidavit to explain generally or in detail what exactly happened 011 the material date. The court would indeed like- to know wha:t.~steps the annamed clerks did takEa ·in.the absence of Mr. Mwakasungula himself. .As clerks in thG 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 hGar his case being called out. Again there is no affidavit evidence from the . appellant himself except hearsay evidence from Mr. Mwak::isungula This cannot support such an r1llegation. In the circumstances I agree with the trial ffiBgistrate that no sufficient cause had been shown to invoke order 9 rule 9 (1) of the Q?C. The appeal is dim.missed in its entirety with costs. NSEKELA JUD.fil2 21+ .10. 97. CERTIFIZD TRUE CCPY OF THE ORIGINAL • . F.S.K. ' ~ . . . ,:~1