rhobi richard vs charles wambura 2007 tzhc 225 31 august 2007

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA PC. CIVIL APPEAL NO. 103 OF 2005 (Arising from Musoma District Court Civil Appeal No. 66/2002 and Original Civil Case No. 11 of 2000 Kiagata Primary Court) RHOBI RICHARD.................................. APPELLANT Versus CHARLES W AM BURA......................... RESPONDENT JUDGEMENT 22/3 & 31/8/2007 Sumari, J. This is an appeal by the appellant Rhobi Richard. She is appealing against the decision of Musoma District Court Civil appeal No.66/2002 arising from the original Civil cas£ No. 11 of 2000 Kiagata Primary court. The background of this appeal can be summarized as follows: | That before Kiagata Primary Court respondent Charles Wambura i (plaintiff) successfully sued the appellant and one Mwema Machage (defendants) for a plot situate at Buswahi i. This judgment was delivered on 10/9/2002. Appellant and her co-defendant Machape were dissatisfied and appealed to Musoma District Court. Their appeal No.66/2002 was first filejd with the district court i on 9/10/2002 as per exchequer receipt; No. 16884216 dated 9/10/2002 paid by Mwema Machage. Their appeal was within the prescribed period therefore within time. It was first mentioned on 4/12/2002 and all parties were absent. It was again mentioned on 6/1/2003 and both appellants were present but respondent was absent. On 10/2/2003 again was mentioned and this time 1st appellant reported sick but the rest i.e. 2nd appellant and respondent were present. The matter was set for hearing on 5/3/2003. On 5/3/2003 the presiding Magistrate was on safari for official duty; and all parties recorded present. Next hearing date fixed to be 18/3/2003 but hearing could not proceed, as the appellants were not present, only respondent was present. No indication whether notice of absence was given or not. Another hearing date was set to be 22/4/2003. On this 22/4/2003 all parties recorded to be present. But the presiding magistrate was again on official safari and hearing adjourned to 15/05/2003. j i On 15/05/2003 appellants were absent and respondent was present. Respondent complained for the hone appearance of the appellants and prayed'for the appeal to be dismissed for want of prosecution. The appeal therefore was ^dismissed for want of prosecution with costs. The appellants applied for restoration of their i appeal, an application which seemed to haye been granted but no clear indication on the record. However, on ^0/10/2003 1st appellant Mwema Machage withdrew his appeal. The 2nd appellant Rhobi Richard proceeded with her appeal and thje same was fixed for hearing on 27/11/2003. • j On 27/11/2003 the matter seems not brought before the court instead as per record the case was called on 28/11/2003. On 28/11/2003 both parties were absent and probably due to confusion as the case schedule had lost track and probably parties were not aware of that date. Why on 27/11/2003 the matter was not mentioned is not indicated on the record. There is only an indication from the order of 28/11/2003 that parties to be notified. However, no proof of service is reflected on the record. But suffice to say on 28/11/2003 the case was set for hearing on 23/12/2003. On 23/12/2003 appellant was absent and respondent was present. The learned magistrate Hon. Mang'ana, RM proceeded with and ordered, I quote, "Since the first applicant had withdrawn his appeal but the second appellant maintained. And because Hearing was fixed to day but the second appellant is not present I would in this occasion dismiss the appeal j for want of prosecution and with costs" j This is what transpired in court on , 23/12/2.003. No proof of service to the appellant. As I well pointed above the appeal) was ordered to come for hearing on 27/11/2003 but with no reasons indicated the same was pushed to 28/11/2003 and the record sjhows none of the parties made appearance. Obviously because that) was not a scheduled date. I With this sought of confusion one wonderfe then why the learned trial magistrate hasten to dismiss the appellant's appeal without taking into consideration of the previous entries; in the court's record. This is a procedural error on the part of the court. 3 It is very unfortunate that even after the appellant filed her application for restoration of her appeal this could not be discovered by the learned trial magistrate Hon. Masolwa, PDM. Despite the fact that reasons advanced by the appellant (applicant) could not convince the court to the standard of allowing the application still the magistrate ought to have gone deeply to satisfy himself whether or not the appellant/applicant was duly notified of the date of hearing. Had it been he performed his duty to the required standard he would not reject the appellant's application. I am not hesitating to say the appellant's appeal is meritorious and therefore is allowed with costs. Appeal No.66 of 2002 is hereby restored. The same to be heard before another magistrate with jurisdiction. A/Va X X 3 T I A.N.M. SUMARI JUDGE At Mwanza 31/8/2007 TO BE DELIVERED BY THE DISTRICT REGISTRAR 4 Date : 31/8/2008 Coram : H.S. Mushi Ag. DR. Appellant : Present in person Respondent : Present in person B/clerk : Sekela Mwaijibe Court : Judgement has been delivered in the DR's chamber in the presence of both parties H.S. Mushi (Ag DR.) 31/ 8/2007