Juma Gor Haji v. Abbas Hajab, civ. Rev. 2-Z-67, 24/10/67, Kimicha Ag. C. J.

Juma Gor Haji v. Abbas Hajab, civ. Rev. 2-Z-67, 24/10/67, Kimicha Ag. C. J.

The plaintiff claimed custody of child. Judgment was given in his favour in the Kadhi’s court, but on appeal the High Court ordered a re-trial before a Resident Magistrate for a re-examination as to material dates involved in the dispute. On the date set for re-trial, neither of the parties appeared in court, whereupon the Resident Magistrate dismissed the suit, with costs for non-appearance. The plaintiff lived on one of the islands near Zanzibar.

Held: The magistrate’s action was correct according to Standing Procedure. However, this suit is not before the courts for the first time, and of first hearing judgment was given for the plaintiff. There must be compelling reasons for the same courts to reverse the plaintiff’s rights. The plaintiff lives on a nearby island, and travel to the mainland is controlled by the tides of the sea. At issue is the destiny and welfare of a young child. There are facts which impose on the courts an obligation to give thorough consideration to the case before making a final disposition of it. “(P)laintiff’s suit should not have been dismissed peremptorily on his non-appearance, and he should have been given more time for presenting his suit, perhaps after giving him some warning of punctual attendance on hearing dates.” Order dismissing the suit set aside; re-trial ordered.