GEORGE SHAMBWE v ATTORNEY-GENERAL AND ANOTHER 1997 TLR

 

GEORGE SHAMBWE v ATTORNEY-GENERAL AND ANOTHER 1997 TLR

176 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Nyalali CJ, Kisanga JJA and Lubuva JJA

C

CIVIL APPEAL 24 OF 1997

D 19 June 1997

(An appeal from the ruling of the high Court of Tanzania, Mbeya, Mwipopo J)

Flynote

E Civil Practice and Procedure - Hearing - Non-appearance of party - Dismissal of

election petition - When granted

-Headnote

The appellant appealed against the dismissal of his election petition for nonappearance

and want F of prosecution. The appellant had instituted an action

seeking to nullify the election results by which the second respondent had been

elected as a member of Parliament for the Mpanda East constituency. The court

scheduled the case to be continuously heard between 15 October 1996 and 10

December 1996. The commencement date was pushed to 16 October for the

convenience of the court and thereafter to 17 October at the request of the appellant

who had transport G difficulties and sent a police message to the court to this effect.

He then sent a second message to the effect that his mother had passed away and

expected to arrive in time for proceedings on 20 October. The trial court then set

down the hearing for 21 October. The appellant sent a third police message stating

that he expected his mother's funeral arrangements to have been concluded and H

he would be available on 23 October. The court then on 22 October directed the

matter to commence on 23 October. When on 23 October the appellant did not put in

an appearance the court directed that the matter be adjourned until 29 October for

the issuing of a dismissal order which was granted on 29 October in the absence of

the appellant. On appeal,

Held:

I (i) The court was acting within the scope of its earlier order when it

1997 TLR p177

dismissed the petition and it was justified in doing so because the

appellant must have A been aware of the hearing date but failed to appear;

(ii) Any difficulties which the appellant may have had with his legal

representatives had had nothing to do with his non-appearance. The trial judge had

correctly dismissed the petition. B

Case Information

Order accordingly

No cases referred to.

The appellant appeared in person.

Salula, Kilindu and Mselem for the respondent. C

[zJDz]Judgment

Nyalali CJ:

This is an appeal by one George M Shambwe, hereinafter called the appellant against

the ruling of the High Court at Mbeya, Mwipopo J delivered on 7 March 1997 in

favour of the Attorney-General D and one Peter Sigela Nswima, hereinafter called

the first respondent and second respondent respectively. The ruling was on an

application made by the appellant seeking to restore the appellant's election petition

previously dismissed by the same High Court for non-appearance and want of

prosecution. The appellant has appeared and conducted the appeal in person, whereas

Mr E Salula, learned Senior State Attorney, has represented the first respondent.

Two learned advocates, namely, Mr G M Kilindu and Mr Mselem have represented

the second respondent. The Memorandum of Appeal contains four grounds of appeal

which state as follows: F

`1. The learned trial judge on 24th October, 1996 having specifically fixed

the matter for mention on the 29th day of October 1996, consequently proceeded to

dismiss the same on the very day meant for mention in contravention of his own

order which he categorically made in court on 24th October 1996 thereby making G

an error in law.

2. The learned trial judge failed to act judicially for determining and

delivering the ruling on the subject matter on the 29th October 1996 in my absence

and also the absence of my advocates, without and before fixing the exact hearing

date contrary to the law, thereby making also an error in law. H

3. The learned trial judge having sensed that there was a professional

misconduct on the part of my former advocates, M/s Lamwai and Co Advocates, of

abandoning appearance and communication with the court in relation to the

prosecution of my election petition he erred in fact in not finding this to be a

reasonable I cause which prevented me appearing in court as required.

1997 TLR p178

NYALALI CJ

A 4. The learned trial judge having graciously granted me time until the

29th October 1996 to prosecute my case and after having been made aware of my

voluminous transport problems in Morogoro, Nyololo (Iringa) and Mbeya as per the

sworn affidavit and the oral submission of the learned advocate A Kagambo, he erred

in fact in not assimilating and evaluating the FIRE INCIDENT gutting my vehicle in

the Mbeya Municipality on the 28th October 1996 at 7.30 am and the same vehicle

having been repaired by Mzee Mwankusye of Seba B Garage and one Mhgama of

Mwakyoma Auto Works both within the Mbeya Municipality at Mwanjelwa on 28th,

29th and 30th of October 1996 a situation which prevented me to arrive in Mpanda

before the 29th C October 1996 the day he dismissed my case unlawfully.'

D From the proceedings both in this court and the court below, it is apparent that

there is common ground between the parties that the appellant had instituted in the

High Court at Mbeya, an election petition, seeking to nullify the election results by

which the second respondent was declared duly elected as a member of Parliament

for the Mpanda East Constituency. On 3 July 1996, after consultations with and in the

presence of the appellant and counsel for the first and second E respondents, the

Court scheduled the case to be continuously heard between Tuesday 15 October 1996

and Tuesday 10 December 1996 at Mpanda. For various reasons however, the hearing

of the F case did not take off as scheduled until the court dismissed the petition on

29 October 1996.

To begin with, the commencement date of hearing was pushed to 16 October 1996 to

allow Mwipopo J to welcome Justices of the Court of Appeal who came to Mbeya on

Court of Appeal circuit. Thereafter the commencement date of hearing was pushed to

17 October 1996 at the G request made by the appellant in a police message in which

the appellant informed the trial court to the effect that his motor vehicle had broken

down at Mikumi on his way to Mpanda. A second police message from the appellant

reached the trial court on 16 October to the effect that the appellant's mother had

passed away the day before with the result that the appellant expected to arrive in H

Mpanda on 20 October after attending to his mother's funeral. The trial court obliged

and made an order on 16 October 1996 pushing the commencement date of hearing

to 21 October 1996 so that the appellant could be in a position to attend.

A third police message was sent by the appellant to the trial court requesting for the

hearing to I commence on 23 October 1996 as the

1997 TLR p179

NYALALI CJ

appellant expected to complete his mother's funeral rites on 19 October. The court

reluctantly A obliged and by its order made on 22 October 1996, directed the

hearing to commence the following day of 23 as requested by the appellant.

It is also common ground that when 23 October came, there was no appearance by

the appellant or anyone authorized to appear on his behalf. There is not dispute that

the appellant had retained B the services of Mr Alfred Kagambo, learned advocate,

before 17 October 1996. Furthermore, there is no dispute that after the failure of the

appellant to appear on 23 October, the trial court was moved by counsel for the first

and second respondents to dismiss the petition under Rule 22(1) of the Election

Petition Rules, 1971. The Court on 24 October reluctantly declined to dismiss the C

petition, and stated, inter alia:

`Since the petitioner has abandoned even his previous decorum of at least

sending police messages in pretence for caring for the petitioner's wellbeing, ie

continuance I hereby slash one week from his ration (quota) of three D weeks period

within which the petitioner is allowed to prosecute his petition. That means that if

the petitioner or his advocates do not turn up in court at Mpanda until Tuesday 29th

October, 1996 this petition will be dismissed as prayed by the respondents on that day

...' E

The trial court further proceeded to direct that, `This petition therefore, is adjourned

till Tuesday 29th October, 1996 for any issuance of a dismissal order then, as

explained above. If the petitioner turns up before Tuesday 29th October 1996, he is

free to move the court in writing to have the court F convene for him to start

prosecuting his petition without his own portion of three weeks maximum period

granted to him hereinabove, ie up to Tuesday 5th November, 1996.' The court

concluded by fixing the case for mention on 29 October 1996. That day came but

neither the appellant nor his G advocate appeared. The court consequently dismissed

the petition with costs.

Thereafter on 18 November 1996, the appellant filed an application in the High Court

seeking to restore the dismissed petition. The application was supported by affidavit.

Counter affidavits were H filed for the first and second respondents. After hearing

both sides, the High Court, Mwipopo J dismissed the application. Hence this appeal.

We propose to deal with the grounds of appeal as they appear in the Memorandum of

Appeal.

With regard to ground No 1 we are satisfied that the correct position portrayed in the

facts that the I period between Tuesday

1997 TLR p180

NYALALI CJ

A 15 October 1996 and Tuesday 19 December 1996 had been scheduled specifically

for continuous hearing of the case at Mpanda, and that when the appellant failed to

appear on 23 October 1996 for hearing at Mpanda, the case was adjourned to the 29th

of that month. What has to be determined within this factual context is the event

which was envisaged to occur on that date. B The appellant contends that since the

case was fixed for mention on that day, then in law or practice, the case was meant to

come up only for orders and the court had no powers to dismiss the petition for nonappearance

or non-prosecution. Counsel for the first and second respondents argue to

the contrary to the effect that the court had powers to dismiss the petition on those C

grounds on the basis that the appellant knew that the case was fixed for continuous

hearing over a period of time, including 29 October 1996, and on the basis that the

appellant decided to cut off communication with the court after his third police

message. Furthermore, counsel contend that D since the trial court on 24 October

adjourned the case for `any issuance of a dismissal order' if the appellant failed to

appear on 29 October, the only order or orders that could be made when the E case

came up that day in default of appearance by the appellant, was the dismissal order.

We agree with counsel for the first and second respondents that the Court was acting

within the scope of its previous order when it dismissed the petition and that it was

justified in so doing F because the appellant must have been aware of the hearing

date but failed to appear.

As to the second ground of appeal, we are satisfied that it has no merits in view of the

fact that the appellant must have known that the case was due for continuous hearing

unless the court ordered otherwise either on request by the parties or on its own

motion.

G The third ground of appeal also seems to us to have no merits in the light of the

fact that the appellant already had the services of Mr Alfred Kagambo, learned

advocate, before 17 October 1996. Thus any troubles that appellant might have had

previously with M/s Lamwai and Co Advocates, had nothing to do with appellant's

failure to appear at Mpanda either on 23 or on 29 H October. We may also point out

here that the appellant's conduct in cutting off communication with the court after

the third police message, is incomprehensible, to say the least, in the light of his

assertion to the effect that after appellant's motor vehicle broke down on 20 October,

both the appellant and his advocate realised that they were in no position to make it

to Mpanda in time for I court appear-

1997 TLR p181

ance on 23 October, and that they foresaw the case being dismissed on that day. Do

the appellant A and his advocate expect a reasonable tribunal to accept that the

appellant and his advocate decided to turn round and travel back to Dar es Salaam

through Morogoro township without dispatching a police message either from

Mikumi or Morogoro requesting for an adjournment in the manner the appellant had

successfully done on previous occasions? We are satisfied that no B reasonable

tribunal can accept this story as true. The trial High Court was thus correct in

rejecting it.

The fourth ground may be disposed of very quickly basically in the same manner as

the third C ground. It is incomprehensible and unreasonable to accept that the

appellant and his advocate decided not to communicate their misfortune of the fire

incident to the court either at Mpanda or at Mbeya, where the incident occurred and

where the High Court has its usual venue.

In the final analysis therefore, we are fully satisfied that the learned trial judge was

correct in D dismissing the petition with costs on 29 October 1996 and was also

correct in subsequently rejecting the application to restore or re-admit the petition.

Consequently, we dismiss this appeal with a certificate for costs for one advocate for

each respondent. We order accordingly. E

1997 TLR p181

F