tanzania habour authority vs kader f mohamed 2001 tzhc 16 19 january 2001

IN THE HOEGH COURT OF TANZANIA AT DAE ES SALAAM ■in i n a » m t a n w , i MISC. CIVIL CAUSE NO. 94/96 TANZANIA HABOURS AUTHOR I T T .............. APPLICANT Versus KADER F* MOHAMED ....................... RESPONDENT R U L I N G H E M A . J. Tanzania Habcmra Authority the applicant filed a ChaoibeJr Summons uudey S*68 (2), Order XXI Rule 24 and Section 95 of the Civil Procedure Code 1$66 and any other enebling provisions of the law proving fcnr this court to orcte* stay of eoeecrrfcion of the Decree of the Resident Magistrate Court o f Daiw Salaam at Kisutu dated 7th May 1996. 3he reason for stay of execution is that the applicant be heard on his application for- extension of time -to file * Notice and Memorandum of Appeal against the judgment of this court dismissing -the appeal filed against the decision of the Resident Magistrate Court -at Kisutu dated 14/7/95. 3his Court (. Mackanja J ) dismissed. tiv» application for- stay of ■esecatioo. on 13/4/99 upon the non-appearance of the applicant at 08*45, the day when the matter was set for mention. It may also he in teresting to note that the respondent was also abawi~fe on the. material day® The applicant -cotrfeendff th«* Wie eowrt was not to dismiss the application on 13/4/99 the day the application was set for mention, and not for hearing and cited the case of the National Bank of Commerce Vs Grace Sengela (1982) TLR 248 in which Bahati J, held that u a suit can only he dismissed on grounds of default of appearance when the case is fixed for hearing and not merely for mention." She respondent through his advocate Mr. Muccadam controrrsrts erpplicah.t‘ s • contention due to the fact, among others, that the word 11 mention !s does not appear any where in the Civil Procedure Code 1966 and that the real issue is whether the applicant was present in Court when the case was called up. On the facts of tiis application I am inclined to grant the prayer to set aside the dismissal order and order that matter proceed to hearing on merit in terms of Order IX Rule 4 of the Civil Procedure Code. It is common ground that on the material day both parties were prevented by sufficient cause not to appear before the Court by 08*45brs wher* the Court ordered the dismissal of the application* Furthermore adopting the reasoning of Bahati J. in the case of the National Bank of Commerce Vs T.ZT61aT m248 " TOl1 “ the Oourt of c , * : " , ™ z e ~ v “ ~ * :r^:;nrt: ^ zzzzzr 0^:::r^re180thecourt°f -*•- -«—J) 3he appellant contends that since the case was fixed for mention on that day, Ohen In law or practice* the case was meant to come up only for orders and the court had no powers to dismiss the petition for non appenl^nce or non prosecution. Counsel for the first and second respondents **gue to the contrary to the effect that the court had P ^ e r s to dismiss the petition on those grounds on the basis that the appellant knew that the case -was fixed for continous hearing over a piriod of time, including 29th October 1966* and on the basis that the appellant decided to cut off communication with the court after t e e thi*d police Message. FurtbernK>rs*c<»im**l contend tho* since the trial court on 2b October 96 adjourned the case for “ any issuance- of -dismissal order” if the appollant failed to appear on 29th October 1996$ fhe only order or orders that could be made when the case come up that day in default of appearance by the appellant, was the dismissal order* We -agree with counsel for the first -and second respondents that the ac,ting within the scope of its •previous order When it dismissed the petition aad that it wfes justified in so doing because the appellant must have been aware of the hearing date but failed to appear. ' 1 (underline supplied) # In the present case it is apparent the Court did not act within the scope of its previous order of mention when it proceeded to dismiss the application* An order for hearing was the most appropriate order in the circumstances• In the premisei I sustain the application to set aside the dismissal order and order that the application be heard on merit as filed# Costs to abide in the cause* S.Ihema JUDGE 19/01/2001