anastazia nyambura magoto vs sera matembera 2011 tzhclandd 2150 7 june 2011

IN THE HIGH COURT OF TANZANIA AT MWANZA MISC. LAND APPEAL NO. 101 OF 2008 ((Arising from the District Land Housing Tribunal of Musoma District, at Msusoma in Land Case Appeal No. 85 of 2007 and Original Ward Tribunal ofN atta Ward in Application no. 13 o f 2007) ANASTAZIA @ NYAMBURA MAGOTO.........APPELLANT VERSUS 8 SERA MATEIVJERA.......................... RESPONDENT RULING; Utamwa, J. This appeal is coming for hearing today; the appellant is not in court, but one Mr. Simon Matembera who introduced himself as the appellant’s husband said he came to represent her. The respondent is in court ready for hearing of the appeal. The respondent however, raised concern saying that when the appellant was served with the notice for hearing the appeal she refused to accept the summons, and she has not Page 1 of 8 appeared. He complained further that she delays the case as she does not appear always while he (respondent) comes to court. He prayed the law to take its course. The said Mr. Simon told the court that the appellant indeed received the notice for hearing of the appeal today, but she is of old age and sick, she loses memory and she may not be helpful to the court. He also told the court that he does not have any document giving him authority to represent the appellant in court; he said also that the document of his authority was sent to the court with summonses and he does not have any copy of the document. He also contended that he does not have any medical certificate to prove the sickness of the appellant as he did not know that it would be required in court. The respondent countered the averment by Mr. Simon saying that he was not telling truth to the court. He said, the appellant is not sick. He insisted that the law should take its. course. I have considered the arguments by both the responded and the said Mr. Simon with keen interest. The two are both laymen before me. The respondent as a layman did not pray for any specific order, but by his assertion that the law should take its course for the appellant’s non appearance I understood him as saying that the court should make an order against the appellant for her non-appearance, and it is more so considering the respondents complaints that he has been appearing in court while the respondent does not. On the part of Mr. Simon, a layman too, I understood him as saying that no order should be made against the appellant for, he is in court for her and she is unable to come to court for the alleged illness. There are therefore, two issues before me for determination, these are; 1. Whether or not under the circumstances this court may make an order against the appellant for her non-appearance. Page 2 of 8 2. If the answer in the first issue is in the affirmative, the second issue will be which order this court should make against the appellant? As to the first issue I am of the view that, it is pertinent for this court to first test the propriety of the representation of the appellant in court by the said Mr. Simon. I hasten to find that this kind of representation is not known in our legal system. S. 46 o f the Land Disputes Court Act, 2002 which is applicable in this appeal recognizes only 3 types o f appearance of parties before this court, they are these, One; the personal appearance of the party, two; appearance by an advocate and three; appearance by representative in accordance to the Civil Procedure Code, Act 1966 (Cap. 33, R. E. 2002). Order III, rule 1 and 2 of Cap. 33 recognizes the appearance of a party in person, by advocate or by a recognised agent who can act for the actual party to proceedings; see the case of Anyisile Anyabwile Nsaje (On Behalf Of Willy Anyigulile) v. The Mbeya Regional Land Officer and Attorney General, HC Misc. Civil Application No; 34 O f 1998, at Mbeya and another decision in Ahmed Ibrahim Bora v. Mehboob Abdulkarim Shivji and another, HC (Commercial Court), Misc Commercial Cause No. 17 O f 2007, at Dar es salaam Mr. Simon however,' is neither the actual appellant, nor an advocate, nor a recognised agent o f the appellant. He is not a recognised agent of the appellant because he does not fit into the description of the phrase “Recognised Agent” as stipulated under Order III rule 2 of Cap. 33, i. e. he neither holds power o f attorney for the appellant nor he carries on trade or business for and in the name of the appellant, after all the appellant (according to record of the appeal) is not resident outside , Page 3 of 8 the local limits of the jurisdiction of this court (as the above cited provisions would envisage). My above finding is based on the fact that Mr. Simon did not produce any power o f attorney and my perusal of the court record did not reveal one. Also he did not inform the court of any fact that makes him fit into those other elements of the definition of the phrase “Recognised Agent”. His allegation that he sent a document to the court giving him authority to represent the appellant is not backed up by the records and he did not produce any copy of the document, after all he did not even mention what kind of the document he sent to this court. The only fact that he is husband to the appellant is not therefore, a warrant for him to represent her because; the law does not recognise an automatic representation by spouse before this court. Such kind of representation which is not authorised by law cannot be condoned by court of law, and courts have religiously admonished this trend; see for example in Julius Petro v. Cosmas Raphael [1983] TLR 346. In another forum, i. e. Edwin s/o Festo v. Levina s/o Ifunya, HC Civil Application No. 17 of 2002, at Bukoba, a Judge of this court lamented and warned against persons who pretend to represent others in court proceedings without any legal justification, he said; “I must really register my concern at people who think they are clever, grab cases fro m other people and prosecute them without any legal basis. They do this at the risk o f those cases being declared null and void” This court’s efforts in discouraging such unqualified legal representation is also evident in the decision o f Hassan Bharde T/A Zahir Trading Company v. The Registered Trustees of Sunni Page 4 of 8 Muslim Jamaat and Mohamed Gulam Huusin Pardhan, HC (Land Division) Land Apppeal No; 40 of 2006, at Dar Es Salaam. Again, Mr. Simon did not produce any medical certificate to support his allegation that the appellant is sick to the extent that she cannot appear before the court to pursue her appeal. The allegation that he did not know that the proof of the illness by medical documents would be required in court does not weigh because, he might have known that he was coming to court for the appellant’s case where such questions would arise, otherwise that is a proof of laxity on his part and the appellant. The story by Mr. Simon on the alleged sickness of the appellant cannot thus be believed by this court. Again, without prejudice to what I have observed above, I am settled in mind that the conduct of the appellant in pursuing this appeal is that of a person who has no interest with this appeal. Since she filed it on 21 August, 2008 (about 3 years ago) she has never appeared before this court for the 10 (ten) times when the appeal was adjourned on different dates though the respondent appears in some occasions ready for hearing. For these grounds, 'I determine the first issue positively to the effect that this court must make an order against the appellant for her non- appearance today and for her persistent passive approach in pursuing the appeal. As to the second issue of which order should this court make against the appellant, I am of the view that, the conduct by appellant demonstrated herein above is inconsistent with the behaviour of a person who genuinely comes to court seeking for rights; there is therefore no sign that she will appear and proceed with her appeal. It is for this reason that this court must make an order which will have the impact of Page 5 of 8 terminating these proceedings. I have recently dismissed an appeal for , similar reasons, i. e. in Nyakasaba Nyambari v. Daimon Magaramba; High Court, Land Appeal No. 88 Of 2008, at Mwanza and I think I must do the same in this appeal. My view in the appeal at hand are these; It is common ground that, parties who institute court proceedings have a duty to make a follow up of their cases and assist the court to finalize them promptly, which said courts, have a constitutional duty to determine the cases timely; Article 1Q7A (2) (b) of the Constitution of the United Republic o f Tanzania, 1977 (Cap. 2 R. E. 2002). It follows therefore that, where the court is ready to discharge its constitutional duty o f determining the cases timely but parties, without adducing any sufficient ground to the court, make themselves a snag to that course by not pursuing their cases (as it is in the case at hand), then the courts will not have any option other than terminating the proceedings. Indeed, our legal system does not recognize a situation where a person files and abandons proceedings in court for, this trend is inconsistent with the conduct of a person who genuinely seeks his rights through courts of law as I.have observed above. Courts will therefore not stay with such cases because they are not custodians of non-starter cases. It is for this stance of the law that courts must do away with such cases not only for avoidance of blameworthiness for delaying cases, but also for sparing their precious time for only cases the parties o f which are genuinely interested in seeking for justice. I will therefore, no longer encourage the laxity o f the appellant by making a further adjournment of the appeal, for I find no reason for further adjournment under the circumstances. The Court o f Appeal o f Tanzania discouraged ungrounded • adjournments and delay o f cases in Ibrahim Said Msabaha v. Lutter Page 6 of 8 Symphorian Nelson and Attorney General, Civil Appeal No; 4 Of 1997, at Dar-Es-Salaam through the following express terms; “We think that the approach o f this court which seeks to discourage adjournments o f cases on flim sy or no grounds at all should be followed by all courts in this country, not only because delay amounts to a denial o f justice, but also because it is common knowledge that there is a widespread outcry by the people o f this country against unnecessary and rampant adjournments o f cases by the courts. We do emphasize the point that the discretion o f a court to adjourn a case which is scheduled fo r hearing must always be exercised judicially, that is, fo r good cause which must be recorded Again, in discouraging unnecessary prolonged adjournments of court proceedings, this court through my Brother, Masanche, J (as he then was) properly instructed that Courts have inherent powers under S. 95 of the Civil Procedure Code Act. 1966 (Cap. 33, R. E. 2002) to strike out ungrounded belated proceedings; Victoria Fisheries Ltd v. Mwanza Regional Land Officer & Another Misc. Civ. Application No; 237 of 2001, at Mwanza. Moreover, in another forum, this court rebuked carelessness of the parties to court proceedings in pursuing their cases in court, see Timu Mbimba v. Kakweja Mwakujonga, (PC) Civil Appeal No; 81 of 1994, at Mbeya in which Mrema, J. (as he then was) rightly directed to the effect that, a court cannot condone such a trend, and it must dismiss the matter before it if the party who filed it does not make any follow up. Page 7 of 8 For these reasons, I answer the second issue to the effect that the deserving order against the appellant in the appeal at hand must be a dismissal for want o f prosecution. I therefore, dismiss this appeal at hand with costs to be paid by the appellant in this appeal and the lower tribunals, it is so ordered. JU D G E 7/6/2011 Date; 07/06/2011 CORAM- HON. Utamwa, J. Appellant; - Absent. Respondent;- Present in person. CC. Mrs. Kaminda. COURT; Ruling pronounced in the presence of the respondent in chambers this 7th day of June, 2011. Right of Appeal to the Court of Appeal to be explained to the appellant who shall be notified of this Page 8 of 8