UWEZO SAID TAMBWE

The Judiciary of Tanzania

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA PC CIVIL APPEAL CASE REFERENCE NO. 202501231000001663 UWEZO SAID TABWELE ..…..………………............................................ APPELLANT Versus HIZZA RAMADHANI MAMBO …………………………………………...… RESPONDENT (Originating from the Decision of the District Court of Shinyanga at Shinyanga) (Hon. Y. Zahoro - SRM) Dated the 15th January, 2025 in Civil Application Case No. 000023903 OF 2024 -----------------------------

JUDGMENT 26th February & 21 st March, 2025. F.H. MAHIMBALI, J. The appellant in this matter is aggrieved by the decision of the District Court of Shinyanga which dismissed his Civil Appeal No. 62 of 2023 for the appellant’s none appearance. His efforts to restore the dismissed appeal, was futile. Thus, the basis of this appeal, based on the following grounds of appeal: 1. That the trial Magistrate erred in law and fact by failure to observe that the act of advocate to abandon the appellant case without due 1 notice to the appellant or the court amounted to an irregularity resulting to an illegality.

2. The trial Magistrate erred in law and fact for holding that the appellant failed to account for each day of delay. During the hearing of appeal, Mr. Chengula, learned advocate represented the appellant whereas the respondent was self-represented. Submitting for the appeal, Mr. Chengula argued that the main reason at the district court as to why the appellant had failed to attend to court for his appeal no. 62 of 2023 is due to the reason that the appellant’s learned advocate (Mr. Emmanuel Sululu) had abandoned his case without a prior notice to the appellant. This led then to the first appellate court to dismiss this appeal on 4th March 2024. It is Mr. Chengula’s submission that, had his learned fellow (Mr. Sululu) informed the appellant of his intention of withdrawing from the conduct of the said case, he was duty bound to inform the appellant as well. Not doing that, was not proper in law. He cited Regulations No.63, - 68 of the Advocates (Professional Conduct Etiquette) of 2018 on the guidance that an advocate is responsible to Court and his client. The said regulations also give mandate as to when and how advocate dully 2 instructed for the conduct case to recuse himself from holding the said matter. Such a conduct is by letter writing to court. As his client ought to have been informed and as the said procedure was not followed, thus led the client not being aware.

Thus, the basis of dismissal of the said case. In his considered view, that was a very genuine reason for the grant of extension of time as sought, insisted Mr. Chengula. In support of his position, he cited the case of Makarani Mzee Shaweji and 193 Others V. The Permanent Secretary, Ministry of Defense and National Service, AG and Mtwara Municipal Council, Land Case No. 5 of 2018 - HC Mtwara. at page 3&4. On that basis, he humbly prays that as the decision by the Trial Magistrate was not proper in refusing the grant of the extension of time, this appeal be allowed as prayed. On his part – Mr. Hizza Ramadhani Mambo (Respondent), resisting the appeal, he submitted that the trial magistrate had almost said all as they had no good reasons for such a prolonged delay. Secondly, there was no explanation given accounting for each day of delay. Since a case is not a personal property of advocate but a party's control, his attendance to court was not excused by employing an advocate. That he lost contact with his lawyer, is a very trivial reason. As the appellant had just been so relaxed all 3 that time from coming to Court and making follow-up of his case, the dismissal of the case was well justified. Since there was no accompanying statement by the said advocate, looks more seeking sympathy than producing sound reasons. Thus, this appeal be dismissed with costs, prayed the

Respondent. Having heard the submissions from both sides, I have now to determine this appeal, whether it is merited. Having carefully digested the submission from both sides, it is undisputed that the appellant had filed a civil appeal at the District Court of Shinyanga. He defaulted appearance from sometime in 2023 until March 2024 when his appeal was dismissed for none appearance to Court neither by himself nor his hired advocate. The reason advanced in this appeal that as he had hired his advocate, then his advocate was duty bound to inform him of everything that was happening in court and that failure to do that, the learned advocate had messed up with him. So, the restoration application was justified. For an application of extension of time to stand, there must be assigned sound reasons warranting the same. In my considered view, the appellant in this matter has assigned none for the trial court to consider it. 4 Guided by the minimal guidelines set by the Court of Appeal in the case of Ngao Godwin Losero (supra) making reference to the case of Lyamuya Construction Company Ltd Vs. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2/2010 – unreported, the Court of Appeal reiterated the following guidelines for the grant of extension of time. a) The applicant must account for all the period of delay. b) The delay should

not be inordinate. c) The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he is intending to take. d) If the court feels that there are other sufficient reasons such as existence of a point of law of sufficient importance; such as the illegality of the decisions ought to be challenged. In reaching this verdict, I have dispassionately considered and weighed the rival arguments from parties. For sure I am mindful that to refuse or grant this application is the court’s discretion. However, to do so 5 there must accounted reasons for that. In Mbogo Vs. Shah (1968) EA the defunct Court of Appeal for Eastern Africa held: “All relevant factors must be taken into account in deciding how to exercise the discretion to extend time……” In this application, the reason why the application should have been granted, is mainly premised on trivial ground of ignorance of the law and negligence by the appellant. It has been held times out of number, that ignorance of law has never featured as a good cause for extension of time (see Ngao Godwin Losero – supra). In this case it was held that, a party who is not properly seized of the applicable procedure will always ask to be apprised of it, for otherwise he/she will have nothing to offer as an excuse for sloppiness. All that the appellant had exhibited in his affidavit at the District

Court, is neither supported by evidence nor backed up by law. It should be known that, by engaging an advocate to the case, has not relieved a party to the case from court’s attendance and or making a follow up of his case. By instructing an advocate, does not suggest that the appellant had sublet his case to the advocate. By his negligence from following up his case, he cannot benefit from his own wrong. 6 By the way, if at all Mr. Sululu was engaged on instruction as advocate of the said case, is a matter of fact which ought to have been strictly established. There is none of that proof. Furthermore, if at all Mr. Sululu was in breach with the etiquette rules, he ought to have been referred to the relevant authority for consideration of the said misbehavior. That is not the concern of this proceeding unless it was a proof that he was convicted of the said disciplinary board/committee. All this said and done, what was deposed and argued for the appellant is legally speaking nothing but exhibiting the party’s apathy, negligence and ignorance of the law in which I am not in a position to condone any. In the end result, the appeal devoid of any merit and is thus dismissed with costs. DATED at SHINYANGA this 21th March, 2025. F.H. Mahimbali Judge 7