REHEMA HAMZA CHEGEKA VS CROSS INVESTMENT LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 9535 OF 2024 (Arising from Commercial Case No. 27 of 2023) REHEMA HAMZA CHEGEKA T/AIBONIKE ENTERPRISES..................................... APPLICANT VERSUS CROSS INVESTMENT LIMITED................................. RESPONDENT RULING Date of Last Hearing: 09/07/2024 Date of Ruling: 22/08/2024 MKEHA, J: In the present application, the applicant is moving the court for orders having effect of restoring Commercial Case No. 27 of 2023 which was dismissed on 06/11/2023 for failure of the plaintiff/applicant to prosecute the same. The application is made under Rule 43 (2) of the High Court (Commercial Division Procedure) Rules as well as Order IX rule 6 (1) of the Civil Procedure Code. The Chamber Summons is supported with an affidavit sworn by Ms. Esther Peter, the applicant's advocate and that of Advocate Richard Clement. 1 | Pa ge According to the affidavit supporting the application and in terms of the submissions by Ms. Esther Peter learned advocate for the applicant/plaintiff, by consent of the parties, Commercial Case No. 27 of 2023 had been scheduled to be heard on 6th and 7th November 2023. Unfortunately, on 26/10/2023, the advocate's father passed away. Saddened by the event, the learned advocate for the applicant/plaintiff travelled to Musoma so as to attend burial ceremony of her beloved father. The advocate had planned to come back to Dar es Salaam before 6th November 2023 so as to attend hearing of the scheduled case. However, due to delay of the actual burial event, she could not make it. Having informed the advocate for the respondent/defendant of what had befallen her, the learned advocate further asked Advocate Richard Clement to hold her brief in court in view of seeking an adjournment for reasons of bereavement. The learned advocate submitted that, the attendance of Advocate Richard Clement in court and his request for adjournment for the aforestated reasons did not yield any positive results. According to the learned advocate, the suit was dismissed for want of prosecution. The learned advocate submitted that, her non appearance in court was not in any way due to negligence on her part. It was stated in the affidavit 2 | Pa ge of the learned advocate for the applicant that, her only partner in their firm was not only unacquainted with the facts of the case but also indisposed. The learned advocate refrained submitting on the reasons for non-appearance of the plaintiff's witnesses on the date set for hearing of the suit. Copies of burial permit and text messages concerning death information between the applicant's advocate and the respondent's advocate were made as annextures to the affidavits supporting the application. The application was contested through a counter affidavit sworn by Mr. Elisa Abel Msuya, learned advocate for the respondent. According to the counter affidavit and the submissions in reply by the learned advocate for the respondent, Advocate Richard Clement had merely asked for adjournment having been instructed by Advocate Esther not to proceed with hearing. The learned advocate submitted that, the court found that, there were no reasons why other advocates in the firm would not proceed. The learned advocate was of the view that, if there were no other advocates, the applicant ought to have moved the trial court for review of its ruling which resulted into dismissal of the suit. The only determinative issue is whether the applicant in the present application has satisfied the court that there was good cause for her non­ 3 | Page appearance on 06/11/2023 when the suit was called for hearing. The facts pertaining to bereavement of Advocate Esther Peter were not in dispute. All what the learned advocates for the parties wrangled over was the reason why the plaintiff did not appear in court on the day fixed for hearing and why the partners of Advocate Esther Peter would not salvage the situation following the sorrowful event of bereavement. Admittedly, it would be impracticable for Advocate Esther Peter to attend hearing following delay of the burial event. However, in her absence, it was expected that, other partners would have made the hearing possible. According to paragraphs 2.10 and 2.11.2 of the counter affidavit (this has reflection in the trial court's record), when Advocate Richard Clement was asked to account for absence of the other partners, his response was that, the other partners were absent because their presence would have no useful purpose as only Ms. Esther Peter learned advocate was conversant with the facts of the case. As to why the witnesses for the plaintiff were not in attendance, Advocate Richard Clement submitted that, the witnesses were absent as had been stopped by their advocate who required them not to appear as she (the advocate) was bereaved. It is important to note that, the reason for dismissal of the suit was failure of the other partners to appear in view of prosecuting the suit and for 4 | Pa ge failure of the plaintiff's witnesses to appear in court on the day scheduled for hearing. In paragraph 12 of the affidavit supporting the application, Advocate Esther Peter expressed the fact that the only partner in the firm, was not only unacquainted with the facts of the case but also, indisposed. That the only partner had little acquaintance with the facts of the case is something that is unbelievable. The following are my reasons: Whereas death happened on 26/10/2023, hearing had been scheduled to proceed on 06/11/2023. Therefore, the other partner had ten (10) clear days to prepare for hearing in lieu of Ms. Esther Peter learned advocate who was bereaved. Ten clear days is more than sufficient time for a qualified advocate to read a case file thereby gaining the requisite factual acquaintance to attend hearing of a scheduled case. There was nothing to prove that the other partner was really indisposed as alleged. Throughout her submissions, the learned advocate for the applicant made deliberate avoidance to submit on reasons for non- appearance of the plaintiff and her witnesses, when the suit was called for hearing. In terms of Order IX rule 1 of the Civil Procedure Code, on the day fixed for hearing the parties should mandatorily attend in person or by their respective recognized agents or advocates. Non-appearance of the 5 | Pa ge plaintiff on the day fixed for hearing attracts a dismissal order as it happened in this case. The victim of a dismissal order has two remedies at his disposal: He may (subject to the law of limitation) bring a fresh suit or apply to set aside the dismissal order. To set aside the dismissal order the plaintiff is obligated to satisfy the court that his non-appearance was for good cause. See: Order IX rule 3 of the Civil Procedure Code. In this case, there was not even a slightest attempt of the applicant to explain reasons for her non-appearance and that of her witnesses when the suit was called for hearing. For the foregoing reasoning, the application is dismissed for being unmeritorious. I make no order as to costs. DATED at DARdESfSALAAM this 22nd day of AUGUST 2024. C.P7MKEHA JUDGE 22/08/2024 COURT: Ruling is delivered in the presence of Ms. Esther Peter learned advocate for the applicant and Mr. Eliezer Msuya learned advocate for the respondent. /} C.P.MKEHA JUDGE 22/08/2024 6 | Page