arusha united cargo carriers ltd vs mgen tanzania insurance ltd 2023 tzhc 23498 15 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO.191 OF 2023 (Originating from Misc. Civil Application No. 100 of 2023 High Court at Dar es Salaam) ARUSHA UNITED CARGO CARRIERS LTD……………….....APPLICANT VERSUS MGEN TANZANIA INUSRANCE LTD....……………………RESPONDENT RULING POMO, J This is a ruling on an application by the Applicant, ARUSHA UNITED CARGO CARRIERS LTD, seeking for restoration of her Misc. Civil application No. 100 of 2023 which was on 4th April, 2023 dismissed by this court for want of prosecution. The dismissed Misc. Civil Application No.100 of 2023 was also an application for restoration. It was seeking restoration of the Applicant’s Civil Appeal No. 186 of 2022 dismissed on 14th February, 2023 by this court for want of prosecution. In other words, the instant application is 1 an application for restoration of an application for restoration, both having been dismissed for want of prosecution when they were called on for hearing by this court but the applicant didn’t enter appearance The Application is predicated under Order XLIII Rule 2 and section 95 both of the Civil Procedure Code, [Cap.33 R.E.2022]. It is supported by an affidavit deponed by Mr. Oscar Millanzi, learned advocated for the Applicant. The ground advanced to restore this matter is that Mr. Oscar Millanzi, the Applicant’s counsel, on 29th March, 2023 was involved in a motorcycle accident at Kinondoni Makaburini area in Kinondoni district which resulted into sustaining multiple bruises to his knees and hence, having obtained PF3 (Police Form No.3), attended at Mwananyamala Hospital for medical treatment. Therefore, on 4th April, 2023 when the matter was called on for hearing he was not in good health a reason which made him fail to enter court appearance (see paragraphs 10; 11 and 12 of the affidavit). The application is resisted by the respondent through a counter affidavit deponed on 17th May, 2023 by Mr. Nuhu Nathan Haule, learned advocate. In the counter affidavit has stated under paragraph 11 that if at all Mr. Millanzi was on 29th March, 2023 involved in a motorcycle accident and sustained injuries then from the fateful date up to 4th April, 2023 when 2 the matter was called on for hearing is seven days hence had ample time to formally notify the court his ill health but he didn’t. Likewise, under paragraph 13 of the counter affidavit, Mr. Nuhu denied to be instructed by Mr. Millanzi to hold his brief on 4th April, 2023 the date on which the Application was dismissed for the Applicant’s non-appearance. On 6th June, 2023 when the Application was called on for hearing, Mr. Oscar Millanzi, learned advocate appeared representing the Applicant while the respondent enjoyed legal service of Mr. Nuhu Haule, learned counsel. I ordered the hearing be by way of written submissions. Both sides complied the submissions filing schedules. I am grateful to the learned advocates for their commendable work. Arguing the Application, Mr. Millanzi adopted the affidavit supporting it and submitted that his absence in court on the 4th April, 2023 when the dismissed application was called on for hearing, was not intentional rather was due to his ill health out of the multiple bruises and swollen knees he sustained in a motorcycle accident he was involved in on 29th March, 2023 at Kinondoni Makaburini area in Kinondoni District in Dar es Salaam. And, since on 4th April, 2023 there was no any advocate in his law firm who could appear in court, he opted to instruct the herein respondent’s counsel to hold 3 his brief. Mr. Millanzi then prayed this court to give the Applicant the right to be heard which is guaranteed under article 13(6)(a) of the Constitution of the United Republic of Tanzania of 1977 (as amended from time to time) and then cited the case of Githere versus Kimungu [1976 – 1985] E.A 101 (CAK) and Ramadhani Nyoni versus Haule & Co. Advocates (1996) TLR 72. Concluding, he prayed the application be granted In reply, Mr. Haule contends that no proof that Mr. Millanzi was involved in motorcycle accident, or sustained any injuries because the alleged PF3 annexed bears no medical doctor’s remark on the findings. Submitting further, Mr. Haule argued that, the alleged motorcycle accident which Mr. Millanzi was involved in occurred on 29th March 2023 while the said Application was coming for hearing on 4th April, 2023 a difference of seven days interval, therefore he had ample time to formerly notify the court on his absence. He was thus negligent for not notifying the court hence the court was justified in dismissing it. Again, Mr. Haule, in a manner stated under paragraph 13 of the counter affidavit, denied to be requested by Mr. Millanzi to hold his belief on 4th April, 2023 in the dismissed Application. He then cited the case of Jubilee Insurance (T) Limited versus Mohamed Sameer Khan, Civil Application No. 439/01 of 2022 CAT 4 at Dar es Salaam (unreported) and then prayed the Application be dismissed with costs for want of merit I have dispassionately gone through both sides’ rivalry submissions, the affidavit and counter affidavit for and against the Application together with the court record. Now, the issue for determination is whether the Application is merited. In determining applications seeking to restore applications dismissed for want of prosecution, court are enjoined to find out if the Applicant has advanced sufficient cause on why he was absent in court when the Application was called on for hearing. On this, I will take inspiration from the decision of the Court of Appeal on setting aside ex-parte judgment in the case of Elias Masija Nyang'oro & Others vs Mwanachi Insurance Company Limited, Civil Appeal No. 278 of 2019, CAT at Dar es salaam (Unreported) where, at page 14 had this to state: - “...the law in this country, like the laws of other jurisdictions, recognizes that, generally the High Court may set aside an ex parte judgment upon an application being made by an aggrieved party and upon the applicant assigning good reasons that prevented him from appearing when the matter was fixed for hearing. Therefore, the underlying factor in 5 granting or not granting the application is for the applicant to demonstrate that they were prevented by good or sufficient cause to do what they were required to do by law or order of the court...” [See also: Sadru Mangaiji versus Abdul Aziz Lalani and 2 Other, Misc. Commercial Application No. 126 of 2016 HC (Commercial Division) at Mwanza (unreported)] Now, in the instant Application, is there any good or sufficient cause given by the Applicant warranting this court to restore Misc. Civil Application No. 100 of 2023 dismissed on 4th April, 2023 for want of prosecution, the date it was called on for hearing? It is undenied fact which is on record that until 4th April, 2023, when the dismissed application was called for hearing, this court had received no notice that the Applicant’s counsel is not going to appear for whatever reason(s). The accident associated with Mr. Millanzi’s failure to enter appearance occurred on 29th March, 2023, and the hearing of the Application was on 4th April, 2023, thus, as correctly argued by Mr. Haule, learned counsel for the Respondent, there was an interval of seven days from the date of incident to the hearing date. Looking, be the medical chick which is annexture - 4 to paragraph 11 of the affidavit, or any other 6 paragraphs of the affidavit, nowhere is stated that from 29th March, 2023 to 4th April, 2023 the said Mr. Millanzi was in an ill health condition preventing him to attend his office or cause a formal notice to be written to the court in notification that he won’t attend due to his ill health. Likewise, there is no affidavit of the legal officer allegedly sent in court to inform the respondent’s counsel to hold brief for Mr. Millanzi the Applicant’s counsel, let alone disclosing his or her name. More significantly is the failure by the Applicant’s principal officers to appear on the 4th April, 2023. In Lim Han Yung and Another Versus Lucy Treseas Kristensen, Civil Appeal No.219 of 2019 CAT at Dar es Salaam (unreported) at page 22, the Court of Appeal had this to state: - “We think that a party to a case who engages the services of an advocate, has a duty to closely follow ups the progress and status of his case. A party who dumps his case to an advocate and does not make any follow ups of his case, cannot be heard complaining that he did not know and was not informed by his advocate the progress and status of his case. Such a party cannot raise such complaints as a ground for setting aside an ex parte judgment passed against him”. 7 Basing on the foregoing, I am not convinced that the Applicant has adduced sufficient cause to warranty this court restore Misc. Civil Application No. 100 of 2023 dismissed for want of prosecution. Therefore, I hereby dismiss the Application with costs for want of merit. It is so ordered Right of Appeal fully explained Dated at Dar es Salaam this 15th day of December, 2023 MUSA K. POMO JUDGE 15/12/2023 Ruling delivered this 15/12/2023 in the presence of the parties. Sgd: S. B. Fimbo Deputy Registrar 15/12/2023 8