19880613 TZHC bUKOBA

I~ ~rt-LM ~. F TANZAL"'l"IA AT BUICOB.A APPELLATE J1jRISDIC-I1ION ML3CELLA1·JEOt-:S CIVIL APPEAL i~O. 5 OF 1988 (Fro:o Resic).cnt Magi □trate 1 s Court a-~ Bukoba in Civil Case 'No,.2 of 1985 - Before K, T. Jd Rusema, Esq., Resident Wiagistrate) ·) REGIOr:\L LiU01J1 OJr'ICIB." ••••••• " ••••• ., ............... •• • .APPELWTT VBR.SUS SEC:;:rJ? t[rt BlJ1{0BA CLUB •••• o • • • • • • • • • ~ n • • • • • • • • • • e • ••.••••.RESPONDENT JUDGl\IENT rWSIII 9 .J. : On 6-12-89, I allowed ·t::. e appeal, quashed and set a.side the lower cour·t 's n11ing of 13-6-38 1 and clirec·i;ed_ the continuation of t.he hearing of t>.e suit by ·i;::ce iirial court in a.ccordance with t!:.e law on its meritSlo I reserved uy reasons for doing so 9 wl.tich I hereby now give. This was a Workmen's Cor;1pensa.tion Cau.se ·filed by -'1i:1e appellant, the Kagera Rec;ional Labour Officer II. TI. Ivlrimi (PW2), a-'i; t::.ie Resident Magistrate I s Couri; of Bukoba, ar,;a.i.nst tl::.e respondent, M/S Secre-'Gary Bukoba Club, on be::::.alf of ~1 employee of t):ce respondent, William Rutones'.1a: (~W1), who had been injv.red in the' employment of t:10 respondent • ./ After the appellant had closed their case, the sui·G was ultimately adjourned to 19-4-88, after several other adjournments, to enable the respondent to present -'i;heir case. Before that da;·te, the respo:,:,~:-ri; :-:-.ac1 written a letter ref. Ko.TJTJK/wc/1/85 dated 12:-4-88 to the court a::~;:Llc for adjournment of t~1e hea1~i;.1g on acco"cmt of ·i;;1a-'c he would have been away to the districts atte~1cl:i.11g and conducting seminars in connection with tl1e May Day celebrations which were to be held at Bukoba at National level. This letter, i·G is conceded, was received by the court on .1.z·+-G,G which was four days lrnfore ·che adjourned date. On ·t;he adj au.med date ( 19-4-GD), tl.:.e respondent and their .advocate, Mr. Rweyenamu, duly attended, but the appella:..1t, on the streng-'lih of his letter, did no·c; attend. One Mr. Rup:ia, a labour officer lll, attended and asked for an adjournment on tlle strength of their earlier letter. · Mr. Rweyema;au. objected to t'.:,e applica·i;ion :for adjournment contending that as the appellant :1ad already given evidence, he could not prosecute in the case, and he had nothing more to do in it. :Mr. Rupia declined to proceed wi·'Gh t7ie case, and the com t u1)held Mr. Rweyemamu 1 s objection, 1 refused the acljou..rnment, and directed i;J:rn case to proceed. However, the case did not proceod. I,tr. Rweyemamu asked ·,;he court to dismiss the sui-'li for non-appearm1ce tmder Orc!.er lX rule 8 of "iil.:.e Civil Procedure Code, hereafter caJ.lec:.. -the Code, and -~b.e trial court (:t,lb.in:';;o, R.H .. ) accordingly dismissed t 1•.c m:1it with costs. 2 T~e ~ppello..nt, in due course, filed an application for rostor2;~ion o:~ t:1e suit restating the reasons contained in his letter. The lower co-:.1..rJi;-Rusema, :a.I-,l. - was not convinced,. He took the view that the 2..ppolla::.1t 1-raS a wi tncss and he had other people, like Mr. Rupia, who co1.:.ld have- proceeded with the case. I:Ie could not condone irreaponsibili ty on t>.e pa:.i.:-·t of -~;;J.e appellant p and on 13-6-88 2 the applica·ti.on was dismissed. And l1c. c t~1is appeal. Bc:.ore me$ a Senior Labour Officer, Mr.. Mrugaruga, argued t:1e appeal for t)e appellant, whereas the Bulcoba Club Secretary, Mr. Lyakurwa, resisted it. Mr. 1'1:ru.(;an1ga submitted t:1at und.er section 42 A(2) of t11e Worlanen' s Compe:1sation Ordinance Cap.263, as ai::iended by Act No.17 of 1983; only labou:r oi':2icer above grade l~_l may prosecute in cour-~.. Mr. Ru.pia, Labour Ofiioer 111,. could not therefore prosecute, a.i.'ld he had gone to court only to c1,sk for tJ:e. adjournment. He further suhmi tted that at that time, the appellant, w:10 was a Senior Labour Of:ficer, was the only person in the region authorized by the Commissioner in wri•;;ing to appear in court and prosecute. Nr. Lyalw.rwa, for his part, argued that it was Mr. Rupia. who had been appeari<::· in t-1.:o case and conduc-ti:16 it. The appellant, who had been a witness, co·c'.lcl aot prosecute. Mr. Rupia, he further argued, ought to have proceeded with J.;::e case. I I have :followed and considered these arguments. I am sa·tisfied that the disnisGal of the suit on 19-4-GS was consequ'.ent upon a procedural lapse o:, t!.--.e par-~ of tb.e trial cour-'G~ I-~ was not the correc-'i; procedure. In tlle ::i:~ -:Jc place, tl1e appellant had already made out and closed his case. In the event t'.1at t:1e appellant had failed to turn up, as was found by the lower cour~, ·i;J.le proper course was to hear tl1e respondeni;'s case and decide on the issues. A plaintiff's case oa.11 be dismissed for non-appearance ~ when he has led no suf'fioient evhle;.1ce to justify the defendant's being called upon fo answer. SEE Gamalla v. Lwa~ (1970) IICD 257. This is the position provided for by Order L"r nlle 8, t.nd Order XVll, of the Code. Secondly,it seer.is to me that the view ·cat.en by t;ie trial cot.U't that the appellant could not prosecute because :1.e l1ad given evidence was, in the circ1...unsJcances oi' ·1;'.:.e case, erroneous• There is no express provision of law which forbids a labour officer frol!l prosecuting a case w:.:.ich he has investigated, 011d a trial is not ipso facto inva,lidated if the prosecuting labour officer also [;ives evidence. vf:1at oU&J.t to be considered is whether such an exercis0 would result to a failure of justice, and this dapends on t'. ,e facts of each case. I am satisfied, in the circumstances of the case, the..t it wov.ld not have resul tcd to any failure of justice had the appellant, w~10 ;}.ac1 given evidence, proc::i..ied to prosecute -~;.,.e case. 3 Of course, there was much arg'I..Ul!ent whether or not Mr, Rupia could prosecute. It may be in t'.1e law 9 as argued by Mr. Mrugaruga, that he could not. Be tJ1at as it may, this poii.1t, in my view, appea:t'S to be beside t';.o point~ Wl1at comes out clearly from the trial court proceedings is that tl:>.e cour·i; had procedurally erred. in dismissing the suit. It could be that tb.e Datter was somewhat an old one and the court was amd.ous to dispose of it~ Nevertheless, the principle that justice must be done and be seen to have been done ought not to be sacrified on tlleeter of expeditious disposal of cases. Besides, I think, it is well settled that whenever possible, suits should be deJi;ermined on the merits except where it is quite cle2.r that a party is not interested in prosecutinc; or defending c1 suit or iG otherwise abusing due process of the court. I am satisfied 1 t]~at, had resid.mrt ma.6 istrate Ruscma considered all these r.1ai·ters with tpe required degree of judicial objectivity, he would most certainly have found sufficient cause for allowing t.'..2.e application for restoration of the suit. l..~ it 02,;,rn to pass, he :b..ad, as was resident magistra·:;e Mhingo 1 lapsed into the sGme fatal errors, a=..1t1c 1-n.-ongly dismissed -b!:.a application. I a.ni satisfied. t!~.a/c there is merit in -[;his appeal which must, on aoooun"t thereof 1 be allowcd4 It w2,s for t::e foregoing reasons that I allowed the appeal, quasb..ed and set asicle ·i;l:e lower courl' s ruling of 1_3-6-88,i and directed the eontinua:tion of the hearing of the suit on its merits,. Cost.a of this appeal s:1all be in the cause. B. P. MOSEI JUDGE. absent absent. \ '