20110519 TZCA Dar es salaam

1 ·· IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A., MJASIRI, l.A., And MASSATI, l.A.) CIVIL REFERENCE NO. 21 OF 2008 SHABI R F. ABDULHUSSEIN ••••••••••••••••••••••••••••••••••.•••••••••••••••••••••••••••• APPLICANT VERSUS RI.CHARD M.CHAU ••••••••••••••••••••••••••••• 11 ■■••· ••••••••••••••••••••••••••••••••••••••• RESPONDENT - (Reference from the decision of the Court of Appeal of Tanzania at Dar es Salaam) (Bwana, l.A.) dated the 22 nd day of October, 2008 in · Civil Application No. 87 of 2008 - RULING OF THE COURT 12 & 27 May, 2011 MUNUO, J.A.: Richard Mchau, then the applicant in Civil Application No. 87 of 2008, filed a notice of motion seeking an order to strike out a Notice of Appeal filed by the present applicant, to challenge the decision in Miscellaneous I Civil Appeal No. 20 of 2004 in the High Court of Tanzania at Dar es Salaam. Bwana, J.A. ordered the parties to submit in writing by the 19th and 26 th /', September, 2008 respectively. However, the parties failed to comply with the Order of submitting in writing and no extension was sought to enlarge the set period. The learned judge then decided to write a ruling by relying 2 ,. . -.\ on the affidavit filed in support of the application. The Ruling was delivered on the 9th October, 2008. Subsequently, Mr. Zake, learned advocate for the present applicant, instituted this Reference complaining that the learned judge erroneously wrote a Ruling without hearing the parties. Hearing the parties, Mr. Zake contended, was envisaged under Rules 33(1) and 58(1) of the Court Rules, 1979 then in operation. The -1979_ Court RuJeS_ h13v~ sinc;e _be_en_ repealed and replaced by the Court of Appeal Rules, 2009 which came into effect on the 1st February, 2010. Mr. Teemba, learned advocate for the respondent conceded that neither party complied with the Court Order to submit in writing. He, nonetheless supported the Ruling of the single judge and urged us not to interfere with the said Ruling. The issue before us is the propriety of the Ruling when neither party submitted in writing as scheduled nor was the matter heard inter partes. We are of the settled mind that since neither party complied with the Order of submitting in writing, the Court should have set the matter for hearing and notified the parties accordingly. If the applicant defaulted in 3 r '-,, appearance on the hearing date, the application would rightly have been '. . ,; dismissed for lack of prosecution. Since no hearing was conducted by the Court exparte or inter partes, there was no material upon which the Court could substantially write a · Ruling. In this regard, we find merit in this application.· We quash and set aside the Ruling delivered on the 9 th October, 2008. We order that the . Application be set for hearing during the next sessions. We accordingly allow the application. In view of the fact that the error was occasioned by the Court, we make no order for cost?, DATED at DAR ES SALAAM this 19th day of May, 2011. E. N. MUNUO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL I certify that this is a true copy of the original. 1 -,--1/ ~-,_)=:::s' c _____ J. S. MGETTA (DEPUTY REGISTRAR) COURT OF APPEAL