MCA 15831 2024 EUTROPIAN TARIMO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 15831 OF 2024 (Arising from Misc. Civil Application No. 466 of 2022) AHMED ABDALLAH SALEH ………………………………………….………. APPLICANT VERSUS EUTROPIA JOSEPH TARIMO (Administrator of the Late Andrew Joseph Tarimo) ........................ 1st RESPONDENT SHABANI SELEMANI JUMA.……………….….............................2nd RESPONDENT ALLIANCE INSURANCE CORPORATION …............................ 3RD RESPONDENT RULING 15th November & 16thDecember, 2024 BWEGOGE, J. The applicant herein above named has instituted an application herein praying this court to set aside its dismissal order in Misc. Civil Application No. 466 of 2023 which was dismissed for want of prosecution. The application is brought under the provision of Order IX, rule 3 of the Civil Procedure Code [Cap. 33 R.E. 2019] and supported by the affidavits of the applicant herein and his counsel. 1 Mr. Thomas Joseph Massawe, learned advocate, appeared for the applicant; and Messrs Livin Raphael and Allen Nanyaro, learned advocates, entered appearance for the 1st and the 3rd respondents. The case proceeded exparte against the 2nd respondent. Submitting in chief, Mr. Massawe argued that he diligently represented the applicant herein. However, he fell sick on the date when the case was set for hearing and failed to enter an appearance in court; consequently, the case was dismissed. He maintained that his sickness prevented his appearance in court as it is clearly depicted in the medical report in that he attended treatment at the RESA Specialized Medical Care located at Kunduchi herein Dar-es-Salaam on the dismissal date of 23rd March, 2023. That upon receiving medical care, he was required to rest for two days. Likewise, the counsel submitted that when he fell sick, the applicant was outside the country as demonstrated by the air travelling ticket annexed to the applicant’s affidavit. 2 Further, the counsel argued that sickness is a good cause for setting aside dismissal order because sickness is an affliction which one has no control. The counsel cited the case of Bilila Lodge Investment Limited T/A Four Seasons Safari Lodge Serengeti vs. Okuli Kinabo Kimaro, (Miscellaneous Labour Application 60 of 2022) [2023] TZHC 18823 and Director Ruhenge Enterprises vs. January Lichinga, Civil Application No. 1 of 2006, CA (unreported) to buttress the point. For the foregoing, the counsel prayed this application to be granted so that the case may be determined interparte. Submitting in reply, Mr. Raphael (1st respondent’s counsel) argued that the genuineness of the medical report is questionable because it is a mere letter written on 26th March, 2023, three days after the dismissal order was entered. That the medical report would have been persuasive if it would bear the date of 23rd March, 2024. Otherwise, Mr. Raphael contended that the applicant’s counsel would have assigned his staff to inform this court about his sickness and, or pass information to the respondents’ counsel. 3 The counsel opined that the ground advanced for setting aside the dismissal order is an afterthought. He prayed this application to be dismissed with costs. In the same vein, Mr. Nanyaro (3rd respondent’s counsel) contended that illness would be a good cause if the alleged illness genuinely incapacitated the applicant’s counsel from discharging his duty. However, upon scrutiny of the affidavits and medical chit, he apprehends that there is lacking essential details, such as the exact time the applicant’s counsel attended the hospital and the time of his discharge. That the purported medical report doesn’t indicate the severity of the illness to assume that the applicant’s counsel was prevented from conveying communication to this Court, his firm, or the respondents’ counsel who appeared in court on the respective date. Further, the counsel contended that the record indicates that the respective case (Miscellaneous Civil Application No. 466 of 2022) was scheduled for hearing at 11:30 am. However, the dismissal order was entered at 11:56 am. Hence, the applicant’s counsel had ample time to convey information pertaining to his ailment and inability to appear in court. 4 The counsel concluded his submission by arguing that the applicant has failed to provide sufficient cause to constrain this court to vacate its lawful order entered on 23rd March, 2023. The counsel prayed this court to dismiss the application herein with costs. In rejoinder, Mr. Massawe reiterated his submission in chief and added that his suffering was so severe; hence, he failed to communicate his ailment to his colleagues. The question to be resolved is whether this application is merited. This court is enjoined with discretionary power to set aside the dismissal order for sufficient cause in terms of the provisions of Order IX, rule 6(1) of the Civil Procedure Code. Thus, furnishing sufficient cause for the non- appearance is a condition precedent (sine quo non) for grant of restoration order. See the cases; Jamal S. Mkumba and Abdallah Issa Namangu & 359 Others vs. Attorney General, Civil Application No. 240 of 2019 [2023] TZCA 21; and Loshilu Karaine & 3 Others vs. Abraham Melkizedeck Kaaya (Suing as Legal Personal Representative of Gladness Kaaya), Civil Appeal No. 534 of 2020[2024] TZCA 93. 5 Given the foregoing, the applicant herein was obliged to show sufficient cause for his failure to appear on the date the case was brought for hearing to entitle grant of the order sought. The term “sufficient cause” encompasses all reasons or causes which are beyond the control of the applicant. See the cases: Loshilu Karaine & 3 Others vs. Abraham Melkizedeck Kaaya (Suing as Legal Personal Representative of Gladness Kaaya (supra) and Felix Tumbo Kisima vs. TTCL Limited and Another (Civil Application No.01 of 1997) [1997] TZCA 58. Now, I proceed to test the applicant’s case to find whether it meets the scales of justice. The applicant’s counsel deposed in the supporting affidavit that on 23rd March, 2023, he was seriously sick and rushed to hospital. The diagnosed ailment was high blood sugar. The counsel argued that sickness is a good cause for grant of restoration order sought herein. Contrariwise, the respondents’ counsel contended that the applicant’s counsel failed to establish his purported sickness as the genuineness of the medical report annexed to the application is questionable for the following grounds: One, the purported medical report does not indicate the time the applicant was attended at the respective health centre and the time he was discharged; two, the purported medical report does not indicate the 6 severity of the illness to apprehend that the counsel was unable to convey instruction to his colleague to appear in court; and three, the said medical report was issued on 26th March, 2023, three days after the dismissal order was entered. I am on all fours with the applicant’s counsel in that sickness constitutes sufficient ground for setting aside dismissal order. In this respect, I am constrained to borrow a leaf from the case of Loshilu Karaine & Others vs. Abraham Melkizedeck Kaaya (supra), on page 8 wherein the Apex Court opined: “This developed from our settled position that sickness constitutes an acceptable account and sufficient cause for granting an application like the one from w hich this appeal stem m ed, so long there is proof to that effect. In the case of John David Kashekya vs. The Attorney General, Civil Application No. 107 of 2012 (unreported), the Court held that: "Sickness is a condition which is experienced by a person who is sick. It is not a shared experience. Except for children who are yet in a position to express their feelings, it is the sick person who can express his/her conditions whether he/she has the strength to move, work and do whatever kind of work he is required to do.” [Emphasis mine]. 7 In the same vein, in the case of (Emmanuel R. Maira v. The District Executive Director Bunda District Council (Civil Application No. 66 of 2010) [2010] TZCA 87, it was held: - “Starting with treatment and medication, the m edical chits relied upon bail out the Applicant. They are consistent and spread out, rhym ing w ith the period stated (July, 2002 - M arch, 2003). Health matters, in most cases, are not the choice of a human being; cannot be shelved and nor can anyone be held to blame when they strike. Applicant's failure to file the Notice of Appeal between the handing down of the decision (27/8/2002) and March, 2003, has a good cause behind: first, he was not notified of its existence, and secondly, the health incapacitation bail him out.” [Emphasis added]. See also the same stance in the cases: Director Ruhenge Enterprises vs. January Lichinga, Civil Application No. 1 of 2006, CA (supra). Being guided by the above decisions, I have scrutinized the deposed facts in the supporting affidavit and the annextures supporting the application respecting the case sought to be restored. As I mentioned earlier, the deponed account given by the applicant’s counsel for failure to enter appearance in court on the fateful day the case was scheduled for hearing is the health issue (high blood pressure) which culminated in his admission 8 to RESA Health Centre. The medical report attached to the supporting affidavit reads thus: “ R E: … … … … … … … … … … .. This is to notify you that the above-named patient attended at our clinic on the stated date, and due to the seriousness of his illness; we recommend that he be excused from duty for a period of 2 days. I hope you will assist him accordingly.” Having gone through the affidavit of the applicant’s counsel supporting the application herein and the annextures thereof, I reckoned the following facts: First, the purported medical report relied on the applicant herein as the evidence of his ailment doesn’t furnish any information pertaining to his affliction. It seems that it was merely intended to convey information pertaining to the proposed leave days. Secondly, as rightly contended by the respondents’ counsel, the medical report was executed by an anonymous medical practitioner on 26/03/2023; it doesn’t indicate when the counsel was admitted and discharged. Thirdly, the address of the counsel in his pleadings indicates that the same work in a law firm (TJM Law Offices). It implies that the counsel has office colleagues who would have entered appearance in court to hold his brief, albeit for seeking adjournment and, or 9 issue the notice of his absence. No account was given as to why this option was not utilized. Suffices to say that based on the record furnished by the applicant’s counsel I am unable to arrive to the conclusion that sickness precluded the same form appearing in court on the date the respective case was scheduled for hearing. Hence, I subscribed to the submissions made by the respondent’s counsel in that the applicant failed to furnish sufficient cause to warrant grant of the restoration order sought herein. In fine, I find the application herein unmerited. The application is hereby dismissed with costs. Order accordingly. DATED at DAR ES SALAAM this 16th December, 2024. O. F. BWEGOGE JUDGE 10