| dc.description | ELIAS MAJIJA NYANG’ORO, EDNA ELIAS NYANG’ORO AND RODRICK ELIAS NYANG’ORO VS. MWANANCHI INSURANCE COMPANY LIMITED
COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (Mkuye, Kente, and Kihwelo, JJ.A.) CIVIL APPEAL NO.278 OF 2019.
(From the decision of the High Court of Tanzania (commercial Division) at Dar es salaam, Sehel, J., dated 23rd October,2017 in Misc. Commercial Application Civil Appeal No.192 of 2017)
Civil practice and Procedure-Appeal-judgment-ex-partejudgment-non-appearance-whether or not the appeal is meritorious-whether or not the appellants demonstrated good or sufficient cause for their failure to appear on the date when the matter was fixed for consecutive hearing.
This is an Appeal originated from the High Court (commercial Division) whereby the appellants, Elias Masija Nyang'oro, Edna Elias Nyang'oro and Rodrick Elias Nyang'oro seek to reverse the decision of the High Court of Tanzania, Commercial Division (Sehel, J. as she then was) dated 23rd October, 2017 which dismissed the appellants' application for setting aside the dismissal order in Commercial Case No. 135 of 2015. The respondent, Mwananchi Insurance Company Limited, following the investigation conducted by M/S Deloitte Consulting Limited, instituted Commercial Case No. 135 of 2015 in the High Court of Tanzania, Commercial Division at Dar es Salaam (the High Court) suing the appellants for fraudulently taking its money, negligently settling insurance claims without adhering to the proper insurance practice and procedures, willful misappropriation and conversion of the respondent's assets, negligently authorizing payments for legal fees on matters that did not involve the respondent and without the necessary Board resolution and general damages among other claims. The case proceeded ex parte on account that the counsel for the appellants was absent on the hearing date, despite the fact that, he was present on the date when the hearing was fixed. After hearing the respondent's case, on 12th June, 2017 an exparte judgment was delivered in favour of the respondent. Subsequently, the appellants lodged Miscellaneous Commercial Application No. 192 of 2017 before the High Court seeking to set aside the ex parte Judgment. The matter was assigned to Hon. Sehel, J (as she then was) who upon hearing the parties was satisfied that the appellants deliberately decided not to turn up on the date fixed for hearing for reasons better known to themselves. The application was therefore dismissed with costs. Appellants aggrieved by the said decision, hence this Appeal.
Held;
(i) It is, perhaps, pertinent to observe that, the law in this Country, like the Laws of other jurisdictions, recognizes, that generally the High Court may set aside an ex-parte judgment upon an application being made by an aggrieved party and upon the applicant assigning good reasons that prevented him from appearing when the matter was fixed for hearing.
(ii) Therefore, the underlying factor in granting or not granting the application to set aside ex-parte order is for the applicant to demonstrate that they were prevented by good or sufficient cause to do what they were required to do by law or order of the Court.
(iii) Order IX, Rule 13 (1) and (2) of the Civil Procedure Code, R.E 2002 is to ensure that parties to the suit do not sleep on their rights but rather responsibly pursue their rights in the spirit of effective case management.
(iv) The exercise of discretion by the lower Court can rarely be interfered with where it is clear that the decision arrived at was a result of erroneous exercise of discretion through either omission to take into consideration relevant matters or taking into account irrelevant extraneous matters and misdirecting itself.
(v) A party to a case who engages the service of an advocate, has a duty to closely follow up the progress and status of his case.
(vi) The overarching policy objective behind effective case management is to ensure timely dispensation of justice which requires judicial officers to manage important steps and events in the case without occasioning injustice.
(vii) Judicial officers are duty bound to ensure that cases are determined expediently, fairly and dutifully without allowing litigants who in one way or the other deliberately seek to obstruct or delay the cause of justice. To allow that will amount to abdicating our Constitutional mandate of timely dispensation of justice. It will also amount to paving way to a sure road to a grave miscarriage of justice.
Appeal dismissed.
Cases referred to:
1. Shah v. Mbogo and Another (1967) EA 116
2. Mbogo and Another v. Shah (1968) EA 93
3. The commissioner General Tanzania Revenue Authority v. New Musoma Textile Limited, Civil Appeal No.119 of 2019
4. Nyabazere Gora v. Charles Buya, Civil Appeal No. 164 of 2016
5. Kiwengwa Limited v. Alopi Tour World Hotels and Resorts SPA and others, Civil Appeal No.240 of 2020
6. Lim Han Yung and Another v. Lucy Treseas Kristensen, Civil Appeal No.219 of 2019 (All unreported)
Statutory provision referred to:
1. Rule 43(2) of the Tanzania Court of Appeal Rules,
2. Order IX, Rule 13 (1) and (2) of Civil Procedure Code, R.E 2002
Mr. Daimu Halfani for the Appellants
Mr.Hussein Kitta Mlinga, Ms. Neema Mbotto and Mr.Theophil Kimoro for the Respondent. | en_US |
| dc.description.abstract | (i) It is, perhaps, pertinent to observe that, the law in this Country, like the Laws of other jurisdictions, recognizes, that generally the High Court may set aside an ex-parte judgment upon an application being made by an aggrieved party and upon the applicant assigning good reasons that prevented him from appearing when the matter was fixed for hearing.
(ii) Therefore, the underlying factor in granting or not granting the application to set aside ex-parte order is for the applicant to demonstrate that they were prevented by good or sufficient cause to do what they were required to do by law or order of the Court.
(iii) Order IX, Rule 13 (1) and (2) of the Civil Procedure Code, R.E 2002 is to ensure that parties to the suit do not sleep on their rights but rather responsibly pursue their rights in the spirit of effective case management.
(iv) The exercise of discretion by the lower Court can rarely be interfered with where it is clear that the decision arrived at was a result of erroneous exercise of discretion through either omission to take into consideration relevant matters or taking into account irrelevant extraneous matters and misdirecting itself.
(v) A party to a case who engages the service of an advocate, has a duty to closely follow up the progress and status of his case.
(vi) The overarching policy objective behind effective case management is to ensure timely dispensation of justice which requires judicial officers to manage important steps and events in the case without occasioning injustice.
(vii) Judicial officers are duty bound to ensure that cases are determined expediently, fairly and dutifully without allowing litigants who in one way or the other deliberately seek to obstruct or delay the cause of justice. To allow that will amount to abdicating our Constitutional mandate of timely dispensation of justice. It will also amount to paving way to a sure road to a grave miscarriage of justice. | en_US |
