Al Adawi ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY)

AT SHINYANGA MISC. CIVIL APPLICATION NO. 202408281000021175 (Arising from Civil Case No. 25 of 2023) AL ADAWI COMPANY LTD …………………………………..…...…..… APPLICANT

VERSUS TIB DEVELOPMENT BANK LTD…………………..………......….1ST RESPONDENT ATTORNEY GENERAL .........................................................2ND RESPONDNET

RULING Date of Last Order 24.09.2024 Date of Ruling: 18.10.2024 MWAKAHESYA, J.: This is an application to set aside a dismissal order of this court dated 28.08.2024. It has been made under Order IX rule 3, 6(1) and section 95 of the Civil Procedure Code (the CPC) and is brought by way of chamber summons supported by an affidavit of one Joseph Kiyumbi Sungwa and Mohamed Abdul Hilal. The respondents resisting the application have filed a counter affidavit sworn by Mr. Mussa Idd Mpogole, learned Senior State Attorney. The brief facts leading to the present application are that, the applicant was the plaintiff in Civil Case No. 25 of 2023 and the respondents were the defendants therein. On 05.08.2024 when the 1 matter came for hearing the applicant’s counsel, Mr. Sungwa, was absent due to bereavement, learned advocate Pharles Focus Malengo held his brief, in the presence of Mr. Hilal. The case was adjourned and it was agreed that the hearing was to take place on 28.08.2024 at 0800hrs. However, on the said date and at the appointed time only the learned Senior State Attorney Mr. Mussa Idd Mpogole entered appearance thus prompting the court to dismiss the case under Order IX rule 5 of the CPC. Aggrieved, the applicant has filed this application seeking the court to vacate the aforementioned order and restore the case. In his affidavit in support of the application, from paragraph 2

to 5, Mr. Sungwa, learned advocate, displayed his reasons for the nonappearance on 28.08.2024. The learned counsel attributes miscommunication between him and the principal officer of the applicant, Mr. Mohamed Abdul Hilal, with regard to the exact time for commencement of the hearing as the principal cause. Paragraphs 3,4 and 5 of the affidavit of the principal officer of the applicant Mr. Mohamed Abdul Hilal, reads: “3. On this date, 5th August, 2024, when the case was adjourned to 28th August 2024 the exact time of 08:00am which was set for the parties to appear before Honourable Judge skipped my attention. 2 4. I thus misinformed Advocated Joseph Kiyumbi Sungwa who was absent on 05th August 2024 that hearing of the case was on 28 th August 2024 at 09:00am.

5. On that basis, the case was thus dismissed as we appeared late (0900am) before the Judge.” In their joint counter affidavit, the respondents are of the view that Mr. Sungwa, was negligent and that upon receiving information on the date and time for hearing of the case he ought to have made a follow up on the Court’s cause lists in the judicial portal website in order to confirm the same instead of relying on information given by Mr. Mohamed Abdul Hilal. At the hearing of the application the applicant was represented by Mr. Joseph Kiyumbi Sungwa, learned advocate, and the respondents were represented by Mr. Mussa Idd Mpogole, learned Senior State Attorney. Arguing for the application, Mr. Sungwa adopted his affidavit and that of Mohamed Abdul Hilal therefore the same forming part of his submission. He went on to submit that, the reason for nonappearance was due to misinformation, that was supplied to him by Mr. Hilal. He elaborated that, on 05.08.2024 when the case came for hearing, in his absence, Mr. Hilal had approached Mr. Pharles Malengo an advocate, in the court’s 3 corridor and requested him to hold brief for Mr. Sungwa, a request that was acceded. The learned advocate submitted further that, both Mr. Hilal and Mr. Malengo overlooked the exact time that was fixed by the court for hearing, that is 28.08.2024 at 08:00am, Mr. Hilal having assumed that it was the usual

time of 0900hrs and communicated the same to Mr. Sungwa. The outcome was that on 28.08.2024 Mr. Sungwa arrived in court at 08:30am and went straight to the waiting lounge in anticipation of the court’s clerk’s announcement of commencement of proceedings. To his surprise he met the respondents’ counsel Mr. Mpogole who informed him that the case had already been dismissed for nonappearance/want of prosecution. The applicant now prays for this court to set aside the dismissal order and restore Civil Case No. 25 of 2023. In reply Mr. Mpogole, Senior State Attorney, also prayed to adopt his counter affidavit and for the same to form part of his submission. He was adamant that the applicant has not shown sufficient cause warranting this court to allow the application. 4 He assailed the affidavit of Mr. Sungwa and that of Mr. Hilal, which was primarily a supplementary affidavit since it was lodged subsequent to Mr. Sungwa’s affidavit, holding that in the former affidavit in paragraph 4, the deponent stated that he arrived in court at 08:30am, while in the latter affidavit, in paragraph 5, it was stated that they arrived at the court premises at 09.00am. He was of the view that the two affidavits were contradictory and thus were not telling the truth which in turn made them bad in law. The learned Senior State Attorney cited the Court of Appeal decision of Charles Christopher

Humphrey v. Kinondoni Municipal Council, Civil Application No. 456/17 of 2021, CAT- DSM (unreported) to validate his position. Mr. Mpogole added that, Mr. Sungwa not visiting the judicial portal and view the cause list of 28.08.2024 and confirm the time was inaction on his part. Thus, he prayed for the application be dismissed with costs. In rejoinder, Mr. Sungwa, learned advocate, referred to the Court of Appeal decision of Mekefason Mandali & Eight others vs The Registered Trustees of The Archdiocese of Dar Es Salaam, Civil Application No. 397/ 17 of 2019 (unreported) which highlighted as to what amounts to “good sufficient reason”. It was his view that, there are no hard and fast rules to determine sufficient cause, but what the court ought to do is to exercise its discretionary powers and weigh 5 whether the materials placed before it are sufficient to grant the prayer sought, and, therefore, on that basis each case is to be determined on its own merits and he has shown the same. He was also adamant that there were no contradictory statements between his affidavit and the affidavit of Mr. Hilal. Mr. Sungwa was also of the view that, the case of Charles Christopher Humphrey (supra) is distinguishable since in that case the Court dealt with a supplementary affidavit sworn by the same person who swore the substantive affidavit in order to make corrections while the affidavits

in support of the present application had been sworn by two different persons. Having gone through the application, the affidavits of the parties and the contesting oral submissions, this court is now in the position to determine this application. In an application such as the present one the applicant has to show sufficient cause to warrant the court to set aside the dismissal order. As to what amounts to sufficient cause or sufficient reasons rather, there is no hard and fast definition but each case must be determined according to its own peculiar circumstances (see Mwanza Director M/S New Refrigeration Co. Ltd v. Mwanza Regional Manager of TANESCO and Anor. [2006] TLR 335). I am also aware 6 that the court should also look into: the conduct of the parties before the nonappearance (see Sandru Mangalji v. Abdul Aziz Lalani & Two others, Misc. Commercial Application No. 126 of 2016, High Court – Commercial Division at Mwanza (unreported); whether the respondents would be prejudiced; and that suits should be determined on merits unless special reasons demand the contrary. The uncontroverted facts are that the applicant’s counsel was absent on 05.08.2024 when the case was adjourned and scheduled for hearing on 28.08.2024 and that on the latter date the applicant’s counsel was at the court’s lounge waiting for the case to be called when he met the learned Senior State Attorney

only to be informed that the suit had already been dismissed for nonappearance. It follows that, the applicant’s counsel had arrived in court with a view of attending the hearing and as records would show either the Principle officer of applicant or her counsel, or both, have always been present in court since the inception of the suit. It was only on the material day there was nonappearance. This seems to be consistent with the submission of the applicant’s counsel that there was misapprehension as to the time when the hearing of the suit would commence. On the other hand, that the applicant would want to renege on her obligations of prosecuting the suit when it had reached the 7 hearing stage seems inconsistent with her previous conduct. It should also be noted that immediately after learning of the dismissal the applicant acted promptly and filed the present application, that is on the same day (28.08.2024), again, showing that the applicant was still desirous of pursuing his suit. The principal officer of the applicant who was present in court on 05.08.2024 being a layperson might as well have not paid attention to the exact time that was set for hearing and acted under the belief that the suit was meant to commence at the usual time of 09:00am. Much has been made, by the learned Senior State Attorney, that the affidavits of Mr. Sungwa and Mr. Hilal are contradictory with

regards to the time that the two arrived in court, the claim is rather misplaced. Paragraph 4 of the affidavit of Mr. Sungwa reads: “Due to the fact that I was made to believe that the hearing was at 09:00am I arrived in court at 08:30am and went straight to the waiting lounge at the ground floor to wait for the clerk’s announcement.” Meanwhile, paragraph 5 of the affidavit of Mr. Hilal reads: “On that basis, the case was thus dismissed as we appeared late (09:00am) before the judge.” From the above excerpts of the relevant affidavits, it is clear that Mr. Sungwa asserts on the time of arrival in court, that is before learning 8 of the dismissal through the learned Senior State Attorney; while Mr. Hilal depones on the time of arrival at the judge’s chambers, subsequent to having knowledge that the suit has been dismissed. In Mwanza Director M/S New Refrigeration Co. Ltd (supra) the holding of this court in Petro Bujiji v. Daljeet Singh Diloo t/a Dodoma Auto Panel Works, HC – DOM- Civil Case No. 14 of 1982 (unreported) was cited with approval. The same was: “It has been held on more than one occasion that it is preferable that suits must be determined on the merits in the absence of any evidence that a party is trying to obstruct or delay the course of justice or is undiligent or otherwise acting mala fide. To deny a subject the right to a hearing should be the last resort of

the court.” With the above quotation in mind and with the view that there is a real likelihood that there was misapprehension in the applicant’s camp with regard to the exact time of the hearing and also considering that the applicant and or his counsel have shown steadfastness in appearing in court prior to the dismissal order and, further, in the absence of the likelihood of the respondents suffering injury if the application is granted, it is the court’s belief that the applicant has sufficiently shown her reasons for nonappearance. 9 I, therefore, find this application meritorious and accordingly allow it. The dismissal order made by this court on 28.08.2024 in Civil Case No. 25 of 2023 is hereby set aside and is accordingly restored. Each party to bear its own costs. It is so ordered. N.L. MWAKAHESYA

JUDGE 18/10/2024 10