amir salehe mwamba and another vs the director of the kinondoni municipal council 2020 tzhclandd 2288 13 august 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 91 OF 2020 (Arising from Land case No 62 of2007) AMIRI SALEH MWAMBA............................................. 1st APPLICANT NATU A. MWAMBA.................................................... 2nd APPLICANT VERSUS THE DIRECTOR, KINONDONI MUNICIPAL COUNCIL................................................. RESPONDENT RULING. S.M. MAGHIMBI, J: On 28/02/2020, the applicants lodged this Application under the provisions of Order IX Rule 9(1), and Section 95 of the Civil Procedure Code, Cap 333 R.E 2002 ("The CPC") praying for the following orders: 1. That the Honourable Court may be pleased to Set Aside Dismissal Order dated 16th day of September 2014 in Land Case No. 62 of 2007. 2. That the Land Case No. 62 of 2007 be restored and continue to its finality. 3. Costs of this Application be in the main suit, and 4. Any order(s) that this honourable court shall deem fit and equitable to grant. i Accompanying the Application is an affidavit affirmed by the 1st applicant, Amiri Saleh Mwamba dated 28th day of February, 2020. In this application, Mr. James Bwana, learned Counsel, represented the Applicants whereas the Respondent was represented by Mr. Hussein Ugullum, respondent's Solicitor. On the 04/06/2020, this Court ordered that the application be disposed by way of written submissions. All parties complied to the scheduling order hence this ruling. Before I embark into the determination of the merits of this application, the brief background leading to the current situation is narrated. In 2007, the applicants herein filed in this court a Land Case No. 62/2007 ("The suit") suing the respondent herein for trespassing into a piece of land situated on Plot No. 576, Plot D (2004) Mbezi Beach, allegedly owned and registered in the name of the applicants. In the suit, the applicants were represented by Mr. Said El-Maamry, learned Senior Counsel. Owing to the absence of the applicants (plaintiffs therein) and their advocate, on the 16th September 2014 the suit was dismissed for want of prosecution, hence the current application to set aside the dismissal order. The application is strongly opposed by the respondent. In his submissions to support the application, Mr. Bwana submitted that In the morning of that material day (16 September 2014), the 1st Applicant (then 1st Plaintiff) had received a call from Mrs. El Maamry informing him that Mr. El Maamry, their Counsel in this Suit, who also happens to be his father in law and biological father of the Second Applicant, had a diabetic attack. The Second Applicant was on safari outside Dar es Salaam and the First Applicant had to rush to Mr. El Maamry’s residence and took him to hospital for urgent treatments. That following the illness, Mr. El Maamry 2 was exempted from duties for 5 days and he annexed the ED as Annexure 3 to the Affidavit. Mr. Bwana submitted further that upon recovery, Mr. El Maamry followed up the case to find out what had transpired on 16th September 2014 and had difficulties tracing the file, he referred to Annexure 7 of the affidavit which is an affidavit of Alhaj Said Hamad El Maamry. That the difficulties in tracing the file continued forcing Mr. El Maamry to write a number of letters to the Court inquiring about it and later on, the Applicants engaged the services of another counsel, himself as additional Advocate to represent them in their main suit. Mr. Bwana continued to submit that on 22nd October 2015, he wrote a letter to the Court asking to peruse the Court file on the main suit and on 29th October 2015 the fee was paid to peruse the same, and the said file was made available to the Counsel for the Applicant for perusal on 2nd November 2015. That it was on this day that Applicants became aware that their case was dismissed for want of prosecution on 16th September 2014. Without delay on 6th November 2015 Applicants instituted Misc. Land Application No 665 of 2015 which was struck out by an order of the Court through Makuru, J. on 11th December 2017, for reason that it was an omnibus application hence improper at law. Following the said dismissal, the Applicants lodged Misc. Land Application No. 118 of 2018 praying for the court to extend the time within which to make an application for Setting Aside the Dismissal Order and the application was granted on 20th January 2020 hence this application. 3 He elaborated that it is a settled law now that for an application to set aside a dismissal order made under Order IX Rule 9(1) of the CPC to be granted, there must be shown sufficient cause for the non-appearance when the matter was called for hearing and that it is entirely in the discretion of the Court to grant or refuse it. That such discretion need to be exercised judicially and overriding consideration is that there must be sufficient cause, demonstrated by the Applicant in the eyes of the court. Mr. Bwana submitted further that what amount to sufficient cause has never been defined in our jurisdiction and that there is no yard stick of measuring the same, it depends on peculiar circumstances of each case. He supported his submissions by citing the case of Mwanza Director M/S New Refrigeration Co. Ltd Vs. Mwanza Regional Manager of Tanesco Ltd and Another [2006] TLR 329. On the reasons for the absence on the date that the suit was dismissed; Mr. Bwana submitted that the Applicants' counsel was sick. He argued that there has been no any fact to challenge the allegation of sickness of the Counsel for Applicant on that day and that it is a valid reason given by the Applicants. That the circumstances of illness of Mr. El Maamry and steps taken by the 1st Applicant to attend to him are explained in the affidavit and the same have not been seriously challenged by the Respondent as to counter them. Further that the Respondent has not denied that the applicants are a married couple and that they have blood relationship with Mzee El Maamry arguing that the 1st Applicant to go and attend the sick Counsel who is his father in law is a natural and obvious thing to do. He submitted further that as the record would shows, the suit was coming for mention on that 16th day of September 2014 and before that day, the 4 previous order of the court was for the plaintiffs to amend pleadings to join Tanroads. That the matter was therefore put on mention so that the court would see whether the amended plaint was filed as ordered, however the court declared the matter to have been abandoned by the Applicants (therein Plaintiffs) hence dismissed it. He argued that according to Order 9 Rule 8 of CPC, when the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed. That the law allows the court to dismiss the case for want of prosecution when the suit is called for Hearing and the Plaintiff does not appear without reason. He argued that the record in this case will show that the suit was dismissed on the day the same was coming for mention and that the court would have seen if the plaintiffs had complied with the previous order of filing an amended plaint to join Tanroads. He went on submitting that although the CPC does not provide for mentions, but courts have developed rules of practice where matters are called for mentions for management of various items in the case before the case is scheduled for hearing. That on 16th September, 2014 this Court was to see if the plaintiff had filed the amended plaint and was not a date set for hearing of plaintiff's case arguing that the case was wrongly dismissed on the date set for mention. He supported his argument by citing the decision of the Court of Appeal in Attorney Genera! vs Amos Shavu [2001] TLR 137 at page 139 held by way of obiter that: "In deed in the opening part of rule 6(1) the words "when the suit is called for hearing" appear to be operative. In one sense that means 5 the court cannot proceed ex parte if, say, the suit is only coming for mention." [Emphasis Supplied] He argued that the Court of Appeal made a finding above that when the suit is called for mention and the defendant does not appear, the trial court cannot continue to order hearing to proceed ex parte as that order has to come on the date set for hearing. That in the same light and by parity of reasoning, the same trial court cannot proceed to dismiss the case on the date set for mention, when plaintiff is absent without reason. He concluded by praying that the dismissal order be set aside and once the order is set aside, this court order restoration of the main suit and the same to proceed to its just end. In reply, Mr. Ugullum submitted that the issue to be determined is whether the applicants have adduced strong reasons as to why neither their advocate nor the applicants failed to appear before this Honorable court when the suit came for hearing. That the advocate for the applicants was not a sole practitioner at the time he was handling the applicants' suit as it is evidenced at paragraph 1 of the plaint which was filed before this Court which indicated that the advocate for applicants is a law firm, therefore it was possible for one advocate or legal officer working under that law firm to address the court on the illness of the advocate Al hajj Said H. EL Maamry. He argued that the court was therefore correct to dismiss the applicants' case. He submitted further that the applicant indicated the 2nd applicant was on safari without evidence to prove the same hence the argument has no merit before this court. He supported this argument by citing the case of TIB Development Bank Limited Vs. Stamili Selemani Kibiga and 6 others Misc. Land Application No. 462 of 2019, HC Land division Dares alaam (unreported) where the court emphasized on proof of facts alleged. Mr. Ugullum also cited the decision of the Court of Appeal sitting in dar-es-salaam in the case of The Registered Trustees of Archdiocese of Dar-es-salaam Vs. The Chairman Bunju Village Government & Others, Civil Case No. 147/2006 (unreported). Citing the same case of The Registered Trustees of Archdiocese of Dar-es-salaam (Supra) Mr. Ugullum submitted further that the court has liberty to set aside the dismissal order if the applicants have sufficient cause as to their non- appearance. That having gone through the applicants' affidavit and submissions, none of them has adduced sufficient cause for the non- appearance and they have left burden to this Court to decide out of sympathy. In rejoinder, Mr. Bwana submitted that the fact that Mzee EL Maamry trades as a law firm does not presuppose existence of more than one person in a law firm, the respondent could have shown the existence of other partners in the said firm. He added that the respondent did not dispute the fact that Mzee EL Maamry was sick, and that the 1st applicant was attending him. He concluded that Mr. Ugullum did not counter the submission on illegality of the dismissal. Having gone through the records of this application, I must first point out that the issue raised by Mr. Bwana on the legality of the dismissal of the suit when it came for mention is not in my domain. The order was passed by this Court and it is only the Court of appeal that can ascertain whether or not the dismissal was legal. My only task here is to see if sufficient 7 reasons have been adduced for the non-appearance of the plaintiffs and their advocate when on the fateful date. That said, going to the merits of the application, as argued by Mr. Bwana, the applicants have sufficiently established the sickness of their former advocate and this point was not particularly disputed by Mr. Ugullum. At this point hence, I am satisfied that Counsel was sick on 16th September 2014 when the suit was dismissed for want of prosecution and the 1st applicant was attending him at the hospital that day. It was further not disputed that the counsel was the only one who was representing the applicants in this case. I have taken the judicial note on both applications for extension of time specifically second application where the presided judge was of the view that as soon as the counsel for the applicants recovered from sickness, they started making follow ups on their case. I cannot differ with this finding of my learned brother Maige, Judge to hold a different view. In the application for extension of time, the court was satisfied of the absence of the learned Senior Counsel El Maamry and granted as well as the delay in filing this application. Therefore since the grounds are somewhat similar and evidence having been adduced of his absence, I am satisfied that the applicants have adduced sufficient reasons for non-appearance on the day the suit came for mention and his effort to pray for restoration of this case shows seriousness on his part. In the upshot, I hereby allow this application and accordingly set aside the order dismissing the suit in Land case No. 62 of 2007. I further proceed to order restoration of the suit under Order IX Rule 9(1) of the CPC to 8 proceed with the hearing on the date that will be scheduled by the Judge that will be assigned the case. Costs shall be in the course. 9