20130326 TZHC Arusha

IN THE HIGH COURT OF TANZANIA ATARUSHA MISC. CIVIL APPLICATION NO. 49 OF 2011 (C/F the Resident Magistrates' Court of Arusha at Arusha in Civil Case No. 17 of 2010) BETWEEN WI LB ROAD A. MALLEY .............................................. APPLICANT AND TRUSTEES OF THE AGRICULTURAL INPUT FUND .......................................................... RESPONDENT Date of Last Order: - 18/01/2013 Date of Ruling: - 26/03/2013 RULING A.C. NYERERE, J. This ruling has bases from an application made by way of chamber summons under the provisions of section 44(1)(b) of the Magistrates Courts Act, [CAP. 11 R.E, 2002] for Orders that this Court may be pleased to call and revise the proceedings and orders made by the Court on 24th day of May, 2011 in the Arusha Resident Magistrates' Court in Civil Case No. 17 of 2010 and make orders as the Court deems just. The above chamber summons was supported by an affidavit sworn by the applicant stating that; Civil Case No. 17 of 2010 which is still pending before the Resident Magistrates' Court of Arusha at Arusha, was on 24th day of May, 2011 scheduled for the matter to proceed with ex parte hearing on 13th day of June, 2011 adding that; the said order to proceed with the matter ex parte was granted in 1 presence of the applicant despite the applicant according the Court with sufficient cause as to his failure to file Written Statement of Defence from illness. It is from those bases the applicant informed the Court through his affidavit to have been denied his right to be heard. Hearing of the matter was ordered to be by way of Written Submissions in which the applicant was ordered to file his by 20th day of December, 2012; the respondent to file hers by 4th day of January, 2013 and rejoinder by the applicant (if any) by 18th day of January, 2013. Parties abided the Court schedule hence this Judgment. In this application, the applicant appeared in person whereas the respondent had services of K & M Advocates. Arguing for the miscellaneous application, the applicant submitted that; on 23 rd day of May, 2011, he was present in Court in which he orally applied for extension of time to file his Written Statement of Defence but he was denied such an extension of time despite the applicant tendering a medical report as to his health status. The applicant further submitted to have opted to seek redress in the High Court as he cannot seek remedy before the trial Court vide the provisions of Order VIII Rule 1(2) & (2) of the Civil Procedure Code, [CAP. 33 R.E, 2002]. Reasons wherefore; the applicant prays for him to be accorded an opportunity to file a Written Statement of Defence with orders for the matter to be tried before another trial Magistrate with Jurisdiction to try the same in the interest of justice. 2 In reply; the respondent's learned counsel submitted that, the applicant failed to file an application for extension of time within the prescribed 21 days vide the provisions of Order VIII Rule 1(2) of the Civil Procedure Code (supra) arguing the trial Court to have been properly guided under the provisions of Order VIII Rule 14(2)(b) of the Civil Procedure Code (supra). Citing the case of KULWA DAUDI vs. REBECA STEPHEN [1985] T.L.R 116, the respondent's learned counsel argued the present application to have been filed prematurely. The respondent's learned counsel submitted that, on 9th day of February, 2011; the applicant was served with copy of the plaint with order to file a Written Statement of Defence by 3rd day of March, 2011 but the applicant failed to abide the Court Order though the applicant showed appearance in Court on the same date of 3rd day of March, 2011. The respondent's learned counsel argued the applicant to have failed to apply for extension of time when he appeared in Court on the 3rd day of March, 2011. It was from the above, the respondent's learned counsel prayed for the application to be dismissed with costs that the trial Court may proceed with hearing of the main suit ex parte. In rejoinder; basically, the applicant reiterated what had been already submitted in chief. Having gone through the Court records and the respective submissions by the parties herein, this Court has the following in disposal of the application at hand. It is not disputed (as the same was not denied by the applicant) that, the applicant was properly served with a copy of 3 Amended Plaint on 1st day of July, 2011 with an order for the applicant to file a Written Statement of Defence by 22 nd day of July, 2010. It is also on record that, from the 1st day of July, 2010 when the applicant appeared in Court; the applicant did not show appearance in Court until on 3 rd day of March, 2011 when one Idrisa Maela appeared in Court informing the Court that the applicant was sick though without clarifying as to the nature of the said sickness. It is also important to note here that, from the last appearance in Court on 1st day of July, 2010; the applicant did not show appearance in Court until on 23 rd day of May, 2011 when the applicant reminded the Court of his sickness. It was on that material date; the trial Court heard both parties with a schedule for a ruling on 24th day of May, 2011. It was the Ruling dated 24th day of May, 2011 that ordered for the matter to proceed ex parte the order that has necessitated the application at hand. From all the above, certainly; the applicant failed to abide the Court order to file a Written Statement of Defence as demanded by both the law and Order of the trial Court. But from the annexed copy of medical report in the applicant's affidavit that the applicant has been suffering from a mental disease from 2006, it has been the position of this Court that there are some possibilities that, from the mental disease; the applicant might have been temporarily affected by the said mental disease to an extent of failing to pay the required attention to his case. 4 ~ Being the case, this Court finds important for the applicant to be accorded an opportunity to find a representative who will act for and on behalf of the applicant under the provisions of Order XXXI of the Civil Procedure Code (supra) that takes care of suits by or against minors and persons of unsound mind. As one of the principles of law requires justice not only to be done but also to be seen to be done, it is only when we have such a representative to represent the applicant that we can fairly judge the applicant fairly to have failed to comply with the law and or the Court Orders. Reasons wherefore; the application is hereby allowed with Orders for the applicant to find out a legal representative who will act for and on his behalf in respect of the suit at hand. Upon finding such representative, such representative will then be ordered to file a Written Statement of Defence and -proceed with hearing of the matter in the interest of justice. The matter is also hereby ordered to be placed before another trial Magistrate with competent Jurisdiction to try the matter in the interest of justice. Order accordingly. Sgd: A.C. NYERERE JUDGE 26/03/2013 5 Delivered in chambers this 26TH day of March, 2013 in the absence of Applicant and in the absence of Respondent who were both served. Sgd:- A.C. NYERERE JUDGE 26/03/2013 I hereby certify this to be a true copy of the original. RICT REGISTRAR ARUSHA .~?.-:..:.?.3r...:-::?.t3 6