Dominic William Massanja and Others vs Yusufu Maulid Maunga (Civil Case No. 121 of 1996) [1998] TZHC 2190 (23 July 1998)

" IN 'J'JfE IIIGU COURT OF l'ANZANJA ATl>All ES ~:1LAA1U CIVJL CAS.ENO. 121/96 llO:MlNJC \VJLJ..,JAM MASSAN,JA ANNA EU\YARJ) JlKHEMA SAU) VERSUS } } J>LAJNTU'FS } · YlJSlWU MAULIU MAUNGA --=--OitJr,ENIJANl' RULING Ou 10th February 1998 the suit was scheduled for mcdfation and all parties were duty notified. On this dale nciti1er the plaintiff nor his advocate, Mr. Lukwaro, tumed up. Mr. Mango, mlvocate, for the defendant applied to have the plaintiffs case di.smissed under O.Vll1 A, Rule 5 CPC, and be allowed to prove the counter-claim exparte which prayer was· duly granted. 8uhseque11Hy, the defendant, represented again by Mr. Lukvvaro, applied, by way of chamber Slttnmons supported by Mr. Maugo's affidavit, to have the dismissal order set aside and so is the one for cxparte proof of the counterwclaim. In his affidavit and written submission M(. Lukwaro .confessed to lm.vc rccciv,d a notice for mediation on eitJ1cr 27th and 28th January, l 998; he added ho,1vever that on same date he Vl'a iu uHcr confusion as he was involved in burrial preparations of his late cousin, St,.:Ha hangc, whose body had to be transpor1cd to Same from Muhimbili hospital ~ 1 hich confusion caused him to forget. to enter the case into his diary. iJc.admiucd an error on his side adding Lhal actually on the relevant day he was in Cou11 premises where he had another mnlk:r before another jndgc but had completely forgotten about mediation in thii:i case. Mr. Maugo challenged lhe application by a counter-affidavit and written submission in r1.r,ly by arguing that Mr. Lukwaro should have informed his cJerk_s to cnlct the matter in th1.; diary; 1hat. d1c two days he was dealing with burial. preparatfons should be taken to have .included attempts "to leave his house clean before proceeding to same to bury hJs dead", and finally that in the absence of evidence that during the two days of bereavement Lukwaro's Bureau was closed he should be taken to have been. negligent and his application deserves dismissal. Having carefully cousiclcred the urguments presented I have to allow the a1,p1ication. Fron1 the applicant's affidavit a1id submissions it seems uncontraverted that indeed Mr. Lukwaro ,va.s bereaved and that during the hvo days he wa.s busy ".ith burial activities. As rightly.cxpressd by Mr. Maugo for Respondent tbis alone ca.o't exornerate him from his failure to enter the mediation date into his diary bi_tl:_as human ti·ait have it, and inore so ,, 1 hen it comes I() death of a relative in. such situations, a human being has a tendency of sidelining ot.hcr imp1,,rlant ma Hers. Mt. Lukwaro has been honest enough to confoss of lapse of mem,y aod recollection on his side regarding the notice he received, and also being trutl1ful enough

to say that mt that same day (of mediation) he was in Court premises hence there was no cause which coulcl have detetTed him from appearing. This honesty disclosure by the advocate rcgardi11g his persoJlia! blame in the matt.er coliplcd with the need to do justice \'ithout undue regard to technicalities in respect of his client's interests compel me to aHow the application albeit with condemnation in costs. The Application.is al.lowed. The Applicant to pay to the Respondent Shs,20,000/= being costs for the whole turn back-exetcise. Order: Delivered on Kalcgcya, J. (i) Dismissal order is set aside and applicant is condemned in costs assessed al Shs.20,000/= (ii) Order for exparie proof on counter•dain1 by Defendant is also set aside; (iii) Mediation set for 18/8/98 Kalegeya .JUJ)GE