Ziada Mbegu vs Athumani Pembe (Misc Civil Cause No 164 of 1995) [1998] TZHC 2152 (6 August 1998)

', . ::· .. . . KALEGEYA J: ' ,. . .. . . IN THE HIGii COURT _QF 'TAiiZATHA • ... ,, ~ f ; \ 1' ' ' AT' DAR' ES SALA/\11. · " . . MISC. CIVIL CAUSE NO. 164 OF 1995 ZIADA MBEGU: . .... • ... •. APPLICANT .. .• VERSUS' .. t ATHUMANI PEMBE . ...... RESPO.NDRNT -----·-------··· - .. RULING " . . . . .· ·• The applicant,• Ziada Mbegu, was the Respoident in the Ilala . District Court, Civil Appeal No. 23/95 origint1t•ing from Buguruni Probate and Adminisfration Cause No.151 of 1994, in which4 Athumani Pembe, was the Appellant. The judgment of he 0 District Court in which she lost was delivered on 23/6/95. She could not . file her appeal in time, because, in terms of her supporting affidavit, "Copy of judgement and proceedings w,::o.r e supplied to her on 18/12/95"·. Consequently sh filed n application for extension°of time in wich to appeal. After various mentions, on . 29/3/96 applicant informed the court that 'she intended to engage a lawyer. • Mr Maftah, Advocate represente~~the Respondent. On 17/4/96, one Mr Nyangarika, Advocate, appeated for Applicant, while Respodent who appear~d in person said that he didn't know ~is ~dv?cate 1 s whereabouts. On 15/5/96, Mr Maftah appeared whj_le Applicant appear eel in person and said "I have e11g,3_ged an advoca t..e called Nyangarika. I don't know as to where. he is." . .-.

2 After the above representations the court (kaji, J) oraered for written submissions as the judge was e11gaged in hearing Election Petitions. The written st1bmissions were to be in the following order - Applicant on 22.5.96 Respondent on 29.5.96 Applicants reply (if any) on 31.5.9~. On 19/7/96, as no submissions had been subJnitted, which, obviously would have been commenced by App Li.c,1n t f i'l .ing heJ submission, the court dismissed the application to appeal out of On 7th march, 1997 the Applicant filed a chamber summons which she entitled as being brought under s.14(1) of the Law of Limitation Act 1971 supported by her own affidavit. In this application she prayed for extension of time to file applicatio1i to set aside the dismissal order of 19th July, 1996. And yet again on 25/4/97 the Applicant filed another chamber summons entitled as being filed under O.IX Rule 7 ere and any.other enabling provision of the law praying to have the dismissal order dated 19 /7 /96, set aside. The ,:1 f -idav its in support of both .:=ipplications are almost the sa.me - erroneously stating that thP. leave sought was td appeal to the Court of _Appeal; and eplaining ' that she had been sick in 1996 which sickness made her to resort to traditional do~tors where she recovered and tl1at after her return, tehruary 1997, she was told by a court clerk at the civil Registr1 over how her application had heen dismissed in July, 1.996.

,', " •.· . ' .,. ,, , .. 3 The instant uling is 1n respect of the above referred to applications. In her written submission the applicant simply reiterated what is contained in the two aff iclav.i ts snve .for. new f ar'.tor t:.11:it during her incapacity she sent her relatives to. court who were however refused to enter appearance on the ground that they a.re not recognised agents. I should pose here an<.l clar i.fy Lha. t U-H:) submission was glaringly authored at t.h.::i l1-:1nrl:3 of a laymrrn as was the case with the chamber summons and acco1npr1.ny ing af f id,'.lV its. Had the court known that she would lAck thA srvices of n lawyer it would not have ordered for written subn1i~:;s.ions. The court acted on wrong information supplied by tl1e applicant herself, for, on the date, when the written submissions were ordered, as usual Maftah appeared for Respond0nt, while Applicant appeared in person and said, "My advocate, Galikano was here but he said he had another case", while Maftah supported her by saying, "Indeed he ha:,:; a matter· before the Industrial Court", a statement he t.,3kt!S further and clarifies in tbe written submis:,d.on thus, "On 18th December l 997, j w; t before we entered into your Lordship' r..:; d:iamber, a lawyer by the name of GALICANO, if my memory is correct, was with me waiting for our call. He informed me that he had heen engaged and

,. ' •,' 4 ins t:ructed by the Applicant to p1Ji,:;ecu t e tile case. Some minutes beforr;;; he inf •)rmc>.rl rnc. that he was going' to the Iri(h1::;1-r.i..:1.l Co1.1.rt to make arrangements for adjournment· of hi.:3 case. If he would he late I :::honld holcl his brief and suggest for wri ttc"n subrnission". This conyinced the court that both parties would be represented. I ]1ave detailed the above seemingly irrAlevant part in'tbe trr.tnsa.ct.ion for clarity beca'ttse .i.t is undesi1abli::!, save in ·v'f:U.y exceptiopal cases, for the court to order .for writ ten subnd.ss ions where on-e party is on his own as a laym,'.:ln, n. :=:;ubject in the common strata of the society, as appljcant s0ems to be, wl1ile the · other side is represented by a professional, an advocate, as is the case here. Now hack to the track, Mr Maftah, in response, pointed out the confusion that the application did not involve an Appeal to the court of Appeal but to the Jigh Court; th,1t none of tlv,i affidavits discJ.ose reasons fo delay as the alleged illness is not supported with medical evidence; while one of them contains hearsay evidence. He insisted that applicant was not sick as claimed because she attended a good part of 1996 and that in any case the 2nd appli6ation can't be supported for she had to adduce sufficient cause for her failure to appear on the date set for hea.ring. I should start by reiterating tl1at the applicant's pleadings were made at the hand of a layman as exemplified in one example of an irrelevant. statement contained t-hPrr~i n,

', :: ..... ,,: ,:l ( / " ,. . ' . ... ., !· ,· ; 5 ''The d i.smissal was in respect of ,1 n refusecl" . Th.is can only be a product of ,i 1.·r i,,., .. ,1, .,,;_ H11:i::;l or .l ,' app.l.icat.i.nn to restore U1B apperi 1 . c-]), ... I 1-i1·, 1 ·'1 c•..,1·,-L1) 1' r• ,g_•1.1r1r.J()•.:..· ,::..c·, 1 , •:> '='\n.t.t'-----•o .. ,:, .t.t .,_ J tj: i: ·, :·, 1 l i 1·::; .i '.' I i;:llll in full agreemfint with Mr r,iaftilli that the affidavit:~, :::is they stand do not effectively rP.flect tho r0asons put forward. )T(Y,.1,:wer, I should go further and say that what tbe Applicant vu:;-::., s uppoS£',cJ to c1o was to sbow cause why :=frie d i,1 not make h,,n ,· suhrnissions in time. I c1 on ' t agree w :i. t }1 Mr Ma .H. a 11 Urn. t she

. . .. ., ,', 6 should Jiave given 'suf f icJent reasons for he.r. non-appea1:a.nCE! ot. the time of hearing' for there was no hearing as such but writ ten submissions. Also I don't 'Agrre 1d. t:11 Mr Ma:f t ah t J·,a t 1 he mere fact that she was at tending cr.11n ! p, ni:'.eu1i.ngs in n,n f .i.r~~ ! sick. Human body can succumb to ,311y i.11.ni:>.:-:s any time. Nei the:. can she be expected to produce medical evidence for she hs sid (and unch,-:iJ.l.enged, although Mr Mafl:.all simply b1ands it, withoul proof, as .lies) that she was attending a traditjonal doctor (he or she must be a traditional meclicinernan j.f titles are anything to go by) who, it is common knowledge (save for those who advertise themselves, and self proclaimed professors scattered in u:rhan Clntres) never issue receipts or .::nr p1 (i,_;cr ipU.on doc:umeril:. In her affidavits applicant stated tl'Jat it was only in February 1997 that she was informed that a dismissal order had been entered. She filed her applications i11 early March. There is no evidence contradicting her. Tn.1F~ shr, was .i.n Court. wh,~n .rn no evidence that she was inf or med of the ~};d.stence of the dismissal order. In the absence of any 1:>.vi,fonce to the contrary her explAnation that she only became aware of i.t .i.n February, 1997 remains unshalrnn contrary to what Mr M,1 r.t-.ali would lt.;ant us to believe. Th.is would be enough a reason for (-)X1.£nsion of. tirne .in which to file her application to set aside a dismissal order. As o the other application I have already observed that there is no question of absence at the tiin1. o.f lrnar ing as this

,.· · .. " ... . , . . .... ... I was not the case. There was no dotA for completion of submissj_nns. And, as it cl .i..d happen in the app lien t. jc;n_ hn f cn-i rne ;:i ::; ,:-i l n~.-:-ic1 r indicated - that here the court ;:incl i:?VPn ,.~ '' , ,, H,-:ift;ih hi.ffi:381.f.,' D s per quoted dialogue between U1e u.-:o - in tl,,-; t app J. 1.ca. t Jon n J.:::;u repetition of what tran:pired b0fore rny b:,:itJ:; ... ,r, Kajt, .T. informed of the order reqiring -filing of i·n:i tt:en suhmi:::;::d.on:::., was supposed to rcpresent Applicant. had she not been a lay party thif.t .i.::: tl;p r.-irt :·:Jle should liav1?. irrelevancies. We have however- e;.:n1<-::ni1 hr-·.1 fc1 thi::-; in UH::: c irc11m;::; tanct:!S. For th.ls reason a.s Wf?. J l j: 1 :::; t j ce wouJ. c1 demtin,1 tl ;._:it she b8 given the benefit of do1:bt .i.n l)f',r f:ij1ur(, to ::.:ubrni1" written subnuJ;sions. Tn th8 fjnality, c1i.mulat i VA (:!f f ect of the two apfiU c;:i U.ons -' en t:. j t le 1; h :L; court to order that th8 dismisal order doted 19/7/96 be asi(1e as I hereby do.

,. December, 1995 to proceed on merits. L.B. Ralegey;1 ,JUDGE. L.B. I<alegey.J ,JUDGE. ','••I, •