Wasward Wilson Mapande vs First National Bank Tanzania Ltd (Civil Application No. 216 of 2017) [2017] TZCA 1289 (16 November 2017)

. t v92> .,__"LL- l IN THE COURT OF APPEAL OF +ANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 216/16 OF 2017 WASWARD WILSON MAPANDE .....................................................APPLICANT . VERSUS FIRST NATIONAL BANK TANZANIA LTD ..................................... RESPONDENT (Application from the decision of the Court of Appeal of Tanzania 10 th & 20 th November, 2017 MUGASHA, J.A.: at Dar es Salaam) (Mjasiri, J.A) dated the 3 rd day of May, 2017 in Civil Application No. 350 of 2016 RULING In this application, the Applicant is see,king restoration of Civil Application No. 305 of 2016 which was dismissed on 3 rd May, 2017 because . of his non appearance.The· application is by way of a notice of motion which is predicated under Rule 63 (3) of the Tanzania Court of Appeal Rules, 2009 (Th~ Rules). Parties filed· written submissions with arguments for and against _the application. 1

From what is gathered ·from the documents accompanying the application, a brief background of the present application is that: The applicant was aggrieved by the decision of the High Court in Commercial Case No. 75 of 2014. Having delayed to apply for stay of execution, the applicant sought extension of time vide Civil Application No. 305/16 of 2016. The application was eventually scheduled for hearing on 3/5/2017. When the application was called on for hearing on that date, Mr. Mushi, learned counsel entered appearance for the respondent therein and herein. The applicant was absent, though duly served with the notice of hearing. Mr. Mushi asked the Court to dismiss the application given the absence of the applicant. The application was accordingly dismissed. The application is by way of notice of motion accompanied by the affidavit of the applicant. The main ground in the notice of motion is basically that: '~ .. that the bad rainy weather resulted into floods which completely swept away a bridge used and therefore prevented the applicant from crossing over the bridge to the main road on his way to appear in court when civil application No 305 of 2

2016 was scheduled for hearing, which resulted the said application to be dismissed with costs for non- appearance. " • t,- ... ,.,.- .,. Moreover, in the affidavit, the applicant has deposed as follows: He travelled from Kilimanjaro to Dar-es-salaam . on 2/5/2017 and · was accommodated at Kimara expecting to appear before the Court on the following day to prosecute his application which was scheduled for hearing on 3/5/2017 at 8.45 hrs. He woke up at 06.00i disembarked around 06.30 am and found the bridge leading to the main road swept away by floods caused by heavy rain. Having waited for the water level to subside, at 01.30 pm he passed beneath the bridge and commenced his trip to the City arriving at the Court premises at 3.00 pm and found the application already dismissed for non appearance. On 11/5/2017, the applicant obtained the dismissal order and filed the present application seeking restoration. The application is being resisted by the respondent through an affidavit in reply of ADEL YNE EMIL TON, the principal officer of the respondent. The respondent has as well enjoined written submissions to oppose the application. 3

At the hearing, the applicant appeared in person unrepresented. The respondent had the services of Mr. Evod Mushi, learned counsel. The application was confronted by a preliminary objection on its competence but on a reflection, it was withdrawn by Mr. Mushi. The applicant adopted, and relied on the contents of the affidavit and written submission. He urged me to grant the application and restore Civil Application No. 305 of 2016 to hearing inter partes .. On his part, Mr. Mushi also relied on the contents of the affidavit in reply and the written submission. He pressed me to dismiss the application with costs, as the applicant has failed to show good cause for his failure to appear on the date of hearing. He based his stance on conviction that, the affidavital evidence in support of the notice of motion does not prove that the applicant took reasonable measures to ensure his appearance when the application was scheduled for hearing. He argued that, the applicant was negligent and not precautious having not sought accommodation at a place close to the Court in order to enter appearance on scheduled time on 3/5/2017. The learned counsel further contended that, the allegation that the bridge was washed away is not supported by any proof in the absence of any photographs thereof. Besides, it was submitted that, Kimara area 4

has a number of other outlets and as such, the applicant could have used an alternative route but opted not to. In addition, it was submitted that, the applicant did not inform the respondent's counsel· on his misfortune if any, through the mobile phone number indicated in the affidavit in reply and the medium through which the applicant has been communicating with respondent's counsel for the purposes of service. In a brief rejoinder,· the applicant had nothing useful to add. Apart from lamenting that, the mobile phone number in the affidavit in reply· does not belong to the respondent's counsel, fell short of telling the Court if he made any attempt to make a phone call vide the number reflected in the affidavit in reply. The bone of contention here is whether or not the applicant has . shown sufficient cause for non appearance when the application was called · on for hearing in terms of Rule 63 (2) which provides:- "Where an application has been dismissed under sub-rule (1) or allowed under sub-rule (2J the party in whose absence the application was determined may apply to the Court to restore the .s

application for hearing or to re-hear it, as the case may be, if he can show that he was prevented by any sufficient cause from appearing when the application was called on for hearing." [Emphasis supplied] The above cited provision gives discretionary powers to the Court.· · However, I do subscribe to the view expressed by Lord Manfield in REX vs WILKES (1770) 4 Burr 257 as cited by Sir Jocelyn, P in POVEY vs POVEY (1971) 2 WLR 381, 387 thus: "Discretion, when applied to a court of Justice means sound discretion guided by law. It must be governed· by rule, not by humor; it must not be arbitrary and fanciful but legal and regular ... " In an application to restore an application dismissed for non appearance, the important question to be considered is whether the reasons furnished are sufficient to justify the applicant's non-appearance on the date the application was dismissed. The burden to show sufficient cause is on the applicant who must exhibit no element of inaction, laxity or 6

negligence. ;(See the case of ZANZIBAR SHIPPING CORPORATION vs MKUNAZINI GENERAL TRADERS, ZNZ Civil Application. No. 1 of 2012 (unreported). I shall be guided by the stated principles to_deterniine the application at hand. From what the applicant has deposed, he was aware that the Civil Application No. 305/16 of 2016 was scheduled for hearing on 3 rd May, 2017 at 8.45 am. This prompted him a day before, to travel all the way from Kilimanjaro to Dar-es-salaam. However and as rightly pointed out by Mr. · Mushi, instead of seeking accommodation within the City center, the applicant chose to be accommodated far away in Kimara. In my considered view, even if it was not for the heavy rains and the bridge being swept by floods, having disembarked from Kimara at 06.30, the applicant risked a delay for being possibly caught up in a morning traffic jam along Morogoro Road. I also share the respondent's doubt on whether the alleged swept bridge was the only access to the main road. This doubt could have been sufficiently cleared by an affidavit of any local government leader of the Street or Ward at Kimara area who would have deposed on the bridge being swept away by the floods on 3/5/2017 and if such bridge was the 7

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• only access to the main road: In the absence of such affidavit, it is doubtful if the applicant had no other alternative route or access to the main road so as to enter appearance in Court on scheduled time. Moreover, the applicant's deposition that he arrived at the Court ' premises at 3.00 pm and found the application already dismissed leaves a lot to be desired. By then, the Registry was still open but the applicant has not deposed to have reported what had befallen him to any of the Registry . . . Officers. His claim advanced at _the hearing that he reported to one of the clerks is short circuited in the absence of any such affidavit from the Registry Officer rendering the applicant's claim a bare assertion not supported any proof. Finally, the applicant who claims to have stayed at the swept bridge from 06.30 morning to 1.30 pm waiting the flood waters to subside, admittedly, did not communicate with the respondent's counsel through between 06.30 and 8.30 a.m. vide mobile numbers 0755536184 and 0755036172 as indicated in the affidavit in reply and the notice of preliminary objection. Apart from lamenting that, the phone number does not belong to the respondent's counsel; he made no attempt to call the respondent's counsel. In my considered view, it is incomprehensible that the applicant decided not to communicate what had befallen him to the 8

, respondent's counsel who would have informed the Court. All these facts, exhibited element of inaction, laxity and negligence on the part of the applicant who was aware that, Civil Application No. 305 of 2016 was scheduled for hearing on 3/5/2017 at 8.45 am. More badly, the applicant did not narrate the misfortune if any, to any of the Registry Officers on arrival at the Court premises at 3.00 pm as he claims. In a nutshell, th_e applicant has not furnished reasons sufficient to . . justify his non-appearance when his application was dismissed. Thus, Civil Application No. 305 of 2016 was properly dismissed for non appearance of the applicant and I do not find any sound ground to have it restored. As such, the application is dismissed with costs. DATED at DAR ES SALAAM this 16 th day of November, 2017. S.E.A. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. M ,MI DEPUTY REGISTRAR COURT OF APPEAL 9