wembere investment co ltd others vs ally korogwe chayungura 2015 tzhc 2084 5 march 2015

IN THE HIGH COURT OF T A N ZA N IA AT TABORA. MISC. CIVIL APPLICATION NO. 49 OF 2013 . (Arising from Kigoma D/Court Civil Case No. 15/2012 and Civil Case No. 4/2011) W EM B E R E INVESTMENT CO. LTD & 2 O THERS.......... A P P LIC A N T VERSUS ALLY KOROGWE C H A Y U N G U R A ..............................RESPONDENT RULING 16th Feb. & 5th March, 2015 RUMANYIKA, J . The application for extension of time within which to appeal against ju dgm e n t and decree dated 16/07./2012 of the District Court Kigoma (the D/Court), is brought by W embere Inv. Co. Ltd and 2 others (the Applicants), Linder S. 14(1) and (2) of the Law of Limitation Act Cap 89 RE 2002 Order XLIII Rule 2 and S.95 of the Civil Procedure Code Cap 33 RE 2002. Mr. Kagashe Learned Counsel represents the Applicant (Ally K orogwe Chayungura). The Respondent had legal services of Ms. Sophia Learned Counsel. The application is supported by affidavit of Paulo M. Kijumbe. Whose contents Mr. Kagashe adopted almost entirely during the hearing. That all was good until 7.2.2002, when a sum m ary procedure suit was disposed against the present Applicants. Which decision was at the end of the day revised, thus interpartes hearing ordered. But yet again, the learned trial magistrate denied them opportunity. Irrespective of the Applicants' requesting the Magistrate to recurse, and decision was again delivered in their absence. That his client Applicants were not, but taken by surprise as the Respondents were now executing the decree. Very late in the day. Hence this application. That had a good defence to offer were parties fairly heard. Ms Sophia submitted that the Applicants were infact heard. Showing cause as to *why should be heard at the trial. But they offered nothing material. Instead they admitted having issued one a sterile cheque. 2 ndly that it was like the application was infact no application. Having been supported by affidavit of a stranger. Thus incapable of deposing whatever it was. The application be struck out w ithout costs. But also that the Applicants should have appealed in 2013. The issue is whether ju dgm e n t and decree resulting from a suit filed and heard under sum m ary procedure is a ground of revisional proceedings. I will answer this one in the negative. The essence of sum m ary procedure proceedings presupposes that given nature of the pleadings, the defendant had no defence to offer. But I think it is only prudent before court jumping into such conclusion to inquire as to why should the defendant defend. Provided that when the court will, in the event of defendant showing no cause, dispose the suit infavour of the plaintiff. It goes without saying therefore, that any such omissions shall am ount to denial of right to be heard. In which case court shall order a retrial. As it is said to have been done. Failure of court too heed to this order, like it seems to have happened, if at all at the trial tribunal, it will be a judicial mischief as opposed to a mere judicial error. It is appealable at law. But as shall see shortly herein after one never appealed. Therefore the point is whether revisional proceedings is a substitute of appeal process. Indeed it is not. If anything, one should have appealed against the ju dgm e n t and decree and may, if wished, to apply for extension of time and appeal on among other things, that the D/court availed him (the Appellant) as said, no opportunity to be fairly heard on the issue whether the said Paulo Jum be was capable to swear affidavit, indeed was. As it is not disputed that was brain (director of the Applicants. Application dismissed each party to bear their own costs. Right of appeal explained. 3 S.M. RUMANYIKA JUDGE 04/ 03/2015 Delivered under my hand and seal of the court in chambers this 5 /3 /2 0 1 5 . In the presence of the Applicant only. S.M. RUMANYIKA JUDGE 04/ 03/2015