20150305 TZHC Tabora

,., IN THE HIGH COURT OF TANZANIA AT TABORA. MISC. CIVIL APPLICATION NO. 49 OF 2013 (Arising from Kigoma D/CourtCivil"-Case No. 15/2012 and Civil Case No. 4/2011) WEMBERE INVESTMENT CO. LTD & 2 0TH ERS .._........... APPL I CA NT VERSUS ·,, ALLY KOROGWE CHA YU NGURA ......................... :...... RESPON DENT RULING 16th Feb. & 5th March, 2015 RUMANYIKA, J. The _application for extension of time within which to appeal . against _judgment and decree dated 16/07/2012 of the District ' Court Kigoma (the D/Court), is brought by Wembere Inv. Co. Ltd and 2 others (the Applicants), un·der S. 14(1) ahd (2) of the Law of Limitation Act Cap 89 RE 2002! Order XLIII Rule 2 and S.95 of ' the Civil fJrocedure Code Cap 33 RE 2002. Mr. ~agashe Learned Counsel represents the Applicant (Ally Korogwe .Shayungura). The Respondent had legal services of Ms. Sophia Learned C6unsel. 1 . The application is supported by affidavit of Paulo M. Kijumbe. Whose contents Mr. Kagashe adopte~ almost entirely . during the hearing. That all was good until 7.2.2002, when a summary procedure suit was disposed against the present Applicants. Which decision was at the end of the day revised, thus interpar~es hearing ordered. But yet again, the learned _trial magistrate d~:~nied them '. ' ; opportunity. Irrespective of the Applicants' requesting the Magistr.ate 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 ~heque . . . 2ndly 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 . . . i struck out without costs. But also that the Applicants should have ',: appealed in 2013. The issue is whether judgment and decree resulting from a suit filed and heard under summary procedure is a_ ground of 2 revisional proceedings. I will answer this one in the negative. The essence of summary procedure proceedings presupposes that given nature of the pleadjngs, 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 amount 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, Ii ke it seems to have happe_ned, if at a II 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 judgment 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 Jumbe was capable to swear affidavit, indeed was. As it is not· disputed that was· brain (director of the Applicants. . I . Application dismissed each party to bear their own costs. Right of appeal explained. I 3 S.M. RUMANYIKA JUDGE 04/03/2015 Delivered under my hand and seal of the czourt in chambers this 5/3/2015. In the presence of the Applicant _only. S.M, RUMANYIKA JUDGE 04/03/2015 ,,