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Appeal Court decides to strike out application for want of prosecution
2007-08-15 08:44:22
By Haji Mbaruku
The Court of Appeal of Tanzania has struck out an application which has been pending in court for over the past six years for lack of prosecution on the part of the applicant.
The application, which is an appeal from the decision of the High Court of Tanzania in Dar es Salaam delivered on May 5, 1999 in Miscellaneous Civil Cause No.10 of 1999, was filed by appellant Laurean G. Rugaimukamu against respondents Inspector General of Police and the Attorney General.
The appellant had sued in the High Court basically for false imprisonment and injuries resulting from the manhandling, that is, trespass to the person he was subjected to on December 8,1987 in Dar es Salaam while at Mtendeni Primary Court, which is situated in Ilala District.
While in the court the appellant was allegedly approached by a certain policewoman who accused him of contempt of court for not standing up when the magistrate left the courtroom.
He was whisked to Ukonga Prison allegedly upon orders of the trial magistrate and was incarcerated until he was released on December 12,1987, hence sued the IGP who manhandled him and AG as the Chief Legal Advisor of the government, it being the employer of both the magistrate and the police.
In determining the appeal, the High Court framed three issues: Whether the plaintiff was harassed /roughed up by police on December 8, 1987; whether plaintiff was lawfully remanded in custody and to what relief, if any, he was entitled to.
However, the High Court dismissed the appeal with costs, hence the present appeal.
But when the matter landed in the highest court of the land, the respondents on the first day of hearing raised a preliminary objection and prayed the court to dismiss the application with costs on point of law on grounds that it was time barred.
Delivering the court`s order, a panel of Court of Appeal Justices comprising Damian Lubuva, Harold Nsekela and Laurean Kalegeya said it was not in the interest of justice to keep the matter pending in the registry for an indefinite period.
They said just recently when the matter was called on for hearing, the applicant was absent and his whereabouts could not be located.
`This is a pathetic situation. The matter has been pending in this court since 2001 when the application was lodged after the court decision.
On a number of occasions the matter has had to be adjourned for one reason or the other.
The last time this matter came was on November 22, 2006 when the applicant applied for an adjournment to enable him instruct another counsel after the withdrawal of Mr. Kashumbugu.
In the circumstances in the absence of a specific provision in the rules covering such a situation, we agree with Mr. Chidowu learned Senior State Attorney that the court invokes rule 3(2)(b).
Accordingly, the application is struck out under rule (3) (2) of the Court Rules,1979.
It is left open for the applicant to file the application afresh if he shows up and so wishes. It is so ordered,` the Justices said.
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