20130628 TZHC Dar es Salaam

1 IN THE HIGH.COURT OF TANZANIA AT.DAR ES SALAAM CIVIL REVISION NO. 42 OF 2010 VITA FOAM (T) LTD . . . . . . . . . . . . . . . APPLICANT Vs. ISSA MOHAMED . . . . . . . . . o • • • • • • RESPONDENT Date of last order-24/4/2013 Date of Ruling-28/6/2013 ' RULING Shangwa, J. This is an application for revision of the proceedings of .the Resident Magistrate's Court at Kisutu in Civil Case No. 62 of 2008. In short, the Applicant prays this court to quash the Ruling of Mteite, RM dated 21 st July, 2010 on grounds that he misdirected himself in dismissing the application for review. The Applicant VITA FOAM (T) LTD 2 supported its application by affidavit of PROTACE KATO . ZAKE, Advocate. At paragraph 2 of his affidavit, Mr. ZAKE avers that the applicant had filed a suit in the Resident Magistrates' Court of Dar es Salaam claiming against the Respondent a sum of Tshs.13,264,469.04 being the principal outstanding amount as at 30 th January, 2006, interests and costs. At paragraph 4 of his affidavit, he avers that on 30 th October, 2009, the matter was adjourned for the First Pre- trial Conference to the 18 th November, 2009 when the suit was dismissed for non-attendance of both parties. At paragraph 5 of his affidavit, he avers that the applicant/plaintiff was not satisfied with the dismissal order and that as a result he filed a Memorandum of Review asking the Court to review the proceedings, vacate the said order and restore the suit. t , t 't h 3 At paragraph 7 of his affidavit, he avers that the application for review was ordered to be disposed of by way of written submissions and that the applicant filed her written submissions but the Respondent did not do so. At paragraph 8 of his affidavit, he avers that the trial Magistrate on 17 th July, 2010 dismissed the application for review on the ground that the applicant did not convince the Court on his failure to attend the First Pre- trial Conference. The question to be resolved in this application for revision is whether or not the trial Magistrate was legally justified in its ruling dated 21 st July, 2010 when he dismissed the application for review of the order in which the suit was dismissed. Let me state from the outset that the trial Magistrate was not legally justified in dismissing the Applicant's 1 t 4 application for review of the order of dismissal of the suit for non attendance of the parties. This is mainly because on the date when the suit was dismissed for non appearance of both parties, it was proceeding for First Pre - trial Conference. As a matter of good practice, what the court is expected to do on the date when the case is set for First Pre - Trial Conference is to fix the speed track of the case, ascertain as to whether or not there are any preliminaries to be dealt with before commencement of the trial and fix a date for mediation. On such a date, the Court is not expected to dismiss or strike out the suit unless it is for want of prosecution. If either party to the suit does not turn up on a date fixed for First Pre-Trial Conference or if both parties do not appear on such a date as it happened before the trial court, 1 r 5 the correct procedure is to adjourn the case until another date for holding the conference but not to dismiss the suit as the trial court did. I know that when the suit was dismissed, the trial court had ordered for last adjournment. However, an order for last adjournment, should sparingly be made as non compliance to it is fatal and catastrophic. In this case, the trial Magistrate's act of dismissing the suit for non attendance on the date fixed for holding the FIRST PRE-TRIAL CONFERENCE amounted to burying justice namely the Applicant's/Plaintiffs claim against the defendant of the principal sum of Tshs.13,264,469.04, interests and costs. Therefore, I quash the Ruling of Mteite, RM dated 21st July, 2010 dismissing the application for review and I also quash the dismissal order of the suit dated 18 th November, 2009. After doing so, I order that the case file should be 6 remitted to the trial court for holding a FIRST PRE-TRIAL CONFERENCE by another Magistrate with competent jurisdiction. I make no order as to costs. ~ A.Shangwa JUDGE 28/6/2013 Delivered in open court this 28 th day of June, 2013 in the presence of Mr. Daimu for the Applicant and Mr. Adelaide for the Respondent. ~~ A.Shangwa JUDGE 28/6/2013