19980928 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA DAR ES. SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CIVIL CASE NO.355 OF 1996 TRICOR LTD ..... PLAINTIFF

VERSUS CITY COMMISSION D'SLAAM DEFENDANT.

RULING MSUMI, ,JK: With information of both parties, this case was fixed for mediation on 16/6/98. Plaintiff appeared as scheduled but t ...,., I defendant defaulted appearance and offered no prior information for this act. Hence in terms of Order VIIIA rule 5 of the Civil Procedure Code ex parte judgment was enter~d in favour of the plaintiff. The applicant, in this chamber application, is requesting the court under Order IX rule 7, and section 95 of the Civil Procedure Code, to set aside the ex parte judgment. The reasons in support of this application are deponed in the affidavit of one Johnson Jasson who is th~ legal officer of th~ defendant. The affidavit reveals, inter alia, th~t the deponent was assigned to conduct the case on behalf of the defendant. However he could not appear on the material day betause he had to appear before Resident Magistrate Mtotela at Kisutu.in Civil Case Number . ·' J.·._. ' ;z;;p JJ aw 2 92 of 1995 Evan Mwaipyana v City Commission ~nd Civil Case Number 82 of 1997 Georqe Shambwe vs. City Commission.. Because these cases were scheduled to start at 8.30 a.m he: thought he could, be able to finish them and be in time to appear before this court for mediation at 9.00 a.m. But he failed to report to this c~urt 1 in time because the taxi which was carrying him from Kisutu ran I i out of fuel and it took him· about 20 rninutesi to get another

taxi. I These assertions have been countered by: Mr Julius Kaldo- p· , I Bundala counsel for the plaintiff, in his counter affidavit. He i asserted that he met Mr Jasson along this cobrt's corridors ori the material day at 10.45 a.rn. On his non abpearance during . mediation, Mr Jasson told the deponent that ~e was misled by his I clerk that the matter had been fixed for me~iation at 10.30 a.m. In his reply to the counter affidavit, Mr Ja~son . ) did not specifically challenge this assertion. Similar omission is conspicuous in his written reply to the written submission of, counsel for the respondent. Instead he jusJ made a general denial. He ought to have specifically denied to have told him ~) that he was under the mistaken understandin~ that mediation was scheduled at 10.30 a.m. From both, his affidavit and submission, Mr Jasson has stated that on that day he had two cases fo~ hearing at Kisuiu Resident Magistrate Court and they were schebuled at 8.30 a.m. I I He is arguing that had it not been for the ~roblem of the tax running short of fuel he would have been in ;time for mediatio'.n at --- I .' , I 3

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I I I 9.00 a.m. It is practically impossible for him/within 30 minutes to appear in these two cases and move to this court in time for I mediation. The distance between Kisutu court abd this court is I about one kilometer and there is heavy traffic ~n the roads. At fastest a car would not take less than 10 minuJes to cover this 1 I I I distance. This means that Mr Jasson had only 20 minutes, at I most, to appe~r for hearing in those two casest I managed to gat the case files of both cases. The proceedingJ in civil case Number 82 of 1992 are ten-page hand written wb/ich in my humble I - estimate must have taken the court not less t'an 30 mtnutes to record them. These observations confirm the Jssertion of coun~el: for the plaintiff that Mr Jasson mistakenly tlought that mediation was scheduled at 10.30 a.m. hence ~is decision to I attend those two cases at Kisutu at 8.30 a.mJ I As a desperate move Mr Jasson submitted/in reply to the ' / submission of counsel for the plaintiff that/ it was improper for I the court to enter the ex parte jtidgment in ~ispute because Otder I VIIIA rule 5 does not apply to situation wh~re the default of I. I • defendant's appearance is at the time when JI case is called for mediation. For the purpose of this application, this argument is I irrelevant. It may constitute a ground for/appeal I or revision. I What the applica~t was required to do is toj furnish suf f icie,nt I . reasons for its failure to appear in court bn the date scheduled I , I . . • for mediation. With respect the reasons offered by Jasson are • I not sufficient to warrant the setting asidj the judgment in

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I I I l .... 4 qu.est1on. Accordingly t.liis ;::if,pJ.ication is dis1u.iss!=Hl w:i.tli costs. ,JA,JI KIONGOZI. ?.8L9__!9e For the applicant: Jasson For the respondent: Ka1olo I ) · 1-