Hussein Selemani and Another vs The Director Equador Ltd (Civil Appeal No. 113 of 1997) [1998] TZHC 2211 (19 June 1998)

• IN THE HIGH COURT·OF' TANZANIA AT DAR ES SALAAM CIVIL APPEAL NOo 113 OF 1997 .,.,... __ ...,...., ..... ~~.,~~

1. 'HUSSEIN SELEMANI) ·. . , .. 2, ISSA SHABANI ) • a o • • • ·• • • .• • • • .• ·• • ., • • • .• -~ • • • • • • APPELLANT 'VERS·US R U L I N G

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SUB:n:i:CT:- Application f•r leave to ...,...__~ l: . appeal out ot time. 0n' the 2/4/1998, when the appeal in this case, was called for hearing, the appellants, it was discovered, had taken the option of not.appearing to . . prosecute the same, and as alegal consequence, the,ap:peal was disini$sed und~~~RDER XX.XIX }1Q;e .1L -f ..... Ye C:icvil Procedll;!'_e ,,yod~~ _S,~~ They have . how'/ 1;,pplied for the re-admission of. the same, •bviously under Rule 19 of the above cited ORDER, and I shall hence be calling them applicants collec- tively. Their application, is supported by affidavit jointly deponed to interalia as follows:- (i) That the case was filed for hearing before Hon. Justice Katiti in chambers on 2/4/1998 1 at .OOam in the forenoon. (ii)· That the said appeal, wr, dismissed for f ·· ,- :,,ion-appearance of the appellants. (iii) That we failed to be in court, on the prescribed time, due to unavailable circumstances that is. ( iv) We left our place of residence Kunduchi Mtongani on the day mentioned, about 7. 15am, that eur bus got a pu..ricture at Kawe, near the JWTZ Camp at 8.20, and the bus owners refused to refund our fares so as to board another bus, We were forced to wait for tha maintenance of the bus. (v) That we arrised at Kariakoo main stand·at 9015, and boarded a bus to the ferry, where ,·1e arrived at the High Court premises at 9.45 late, for our appealo (vi) We therefore pray to your Honourable Court, to revoke the dismissal order, entered 1n our appeal, and fix a fresh hearing date. • 2 •

... " 2 • The prosecution of -this a:ppication·, was one sided, as the other party took the libery, not to:appear, However', it should be straight appreciated that, the fact, that_, the applicad.'en is prosecuted one sided, should not automatically give hope, that the.application so tiresecuted, must succeed. F;r worse, for good, th,~ .law must take chargeo · What does· ihe law say? It would seem that going by the grovisions of Rule JJ., of the same order, an applicant, has liberty to apply for the re-admission of the appeal, and li!&ere it_ i1?_Eroved th'!..t he was prevented by an.,;x.E.ufficient c!3-use, :t.om a:ppeari~..!hen the appeal was called on for hearints ••••••••••• o •••••• o .. •••• the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fi t 11 • It is the position of the law, that,- when the appellant does not appear, ··.·\ either by himself, or through his advocate,· when the appeal is c·alled for hearing, while the appellate court may dismiss such appeal, it does so •n merits, rui.d hence opportunity for resto:·:-ation of appeal under Rule 19 of ' the same ORDER and setting aside the order of dismissal for defoult, On the aspect of readmission of an appeal, or dismissed for default, I think on suff_icient grounds, the court would erdinarily be inclined to restore the appeal, unless there has been gross negligence, or lack of transparency on reasons for default, on the. applicant. I would go further and sympahetically say that, in an adversary system as is obtaining in this country, where most people like the applicants, are either non-literate, or semi literate, ·hardly with any knowledge of substantive and procedural laws, and unrepredented as these are, chances and opportunity should be given to such litigants, to fight out litigation, in a fair r.,.-~mer, and subject, to the constraints of law, such litigation, must be given a free and fair opportunity to contest, the action in court. Though I have above pointed out the need of I think the same and sympathy, sentiments should not be "'Ver used, as a guillotine for the slaughter or transpression, "'f the law., The law for the purposes of our subje·ct at hand is that if it is proved, that the applicant was prevented by sufficient cause from appearing the court, shall readmit the appeal, As I see it, the applicant bears the onus of proving, not a heavy burden, such sufficient cause, IJ:ld. .. once ~ t.bat. iiLdoue• -·t; is Jiandater., . for the court to re-ad.mi t the ap:peal • . In my view this expression "sufficient cause 11 should receive a li')eral approach, ' . and the non-appearance here is to be considered on the basis of events which toek place on the date of default, the earlier conductor, events being immaterial, unless they spillover to the date of defaulto • 3 •

.. 0 3 • L:t.>t us now apply the abcrif~ ,to the appli"qi:J.tion at hand. I have above '. . reproduced an excerp from the jolnt· affidavit, But when.it came to the pro~,ecu-tion, of the application proper, the first applicant said that their bu_s got a tyre puncture as they reached Mwenge, not Ka.we near JWTZ _as per affi~~v:f.t, that they arrived at the High Curt at 9.15am 1 and not at 9.45 as per affidavit! Equally the second appellant kept the same line, that they had a puncture at Mwenge at 7o30 or 8am, but reached the High Court at 9.15am. But one, does not need a microscop t,o see h9w. inco:r;is,~~ent, the applicants have been with the joint affidavit. It is worth and useful to remember, that, an affidavitif is a sworn statement, madein writing made especially under oath\ or affirmation before aspecially authorized officers. This in itself signifies, the importance. thereof. It does appear without any doubts at all, that, the applicants have trans::Tessed their oath, and said something different, and they have not told the truth. :Silt as the saying goes, whoever cannot keep his oath, cannot keep his word 1 and here ,.where bruth residess .:f.Jhether in affidavit or submissions is difficult, to telL, · ;I:; am .there:t;Qir'e left to take, neither, version seriously. I am satisfied therefore, that no sufficient cause has been eshablished, and I hereby dismiss~ the application with costs. '' Delivered• this 19:th day of June, 1998. E.Wo KATITI JUDGE I Certify that this is the true copy of the Original. p1!}HQR JJTY 13_EGIS HIGH COURT