AUTOCAR EAST AFRICA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB REGISTRY] AT ARUSHA MISC CIVIL APPLICATION NO. 99 OF 2023 (C/F Misc. Civil Application No 50 o f2023 from the High Court o f Tanzania Arusha) AUTOCAR EAST AFRICA LIMITED..............................................PLAINTIFF VERSUS ORYX ENERGIES TANZANIA LIMITED..................................1st DEFENDANT ORYX SERVICES AND SPECIALTIES LIMITED...................... 2nd DEFENDANT RULING 02nd & 19th July 2024 TIGANGA, J. This is an application for setting aside the dismissal order entered in Misc Civil Application No. 50 of 2023 on 06th September, 2023 by this court. The applicant also asks for costs and any other order that the Honourable Court may deem fit to grant. The application was preferred by a chamber summons made under Order IX Rule 3 of the Civil Procedure Code [Cap 33 R.E. 2019]. The same is supported by an affidavit of Godbrown Massawe who introduced himself as a principal officer of the Applicant. In that affidavit, the deponent deponed that, sometime in May 2023, he fully instructed Mr. Emmanuel Kinabo, Advocate to file and prosecute Misc. Civil Application No. 50 of 2023 against the Respondent. Having so instructed him he believed that everything was in order. However, on 07/09/2023 while he was on a journey abroad, he got a text message from his Advocate that the said application was dismissed on 06/09/2023 for failure of the Applicant to appear and that he had withdrawn from representing the applicant without prior notice. According to him, after being so informed, he immediately directed another Advocate Mr. Omary Gyunda to peruse the file and advise him. Upon perusal, Mr. Gyunda found out that, the application was dismissed due to poor cooperation of the applicant with his Advocate and that the application was an abuse of the court process, which was the reason for his withdrawal from representing her. He thereafter was advised and based on that advice he applied for restoration of his application. He said his Advocate was unfaithful for he instructed him to represent him and prosecute the application, by paying him legal fees and other instructions but the Advocate was the one who 2 was not responding to his query when he looked for him to know the progress of the case. He said the order of dismissal was entered wrongly because he was not given the chance to be heard on the allegations of the Advocate respondent that he was abusing the court process and violating the order of the court on the maintenance of the status quo. He said an Advocate improperly withdrew from representing him and therefore dismissal in the circumstances, is without affording him the right to be heard. He asked this court to vacate the dismissal order, and that the applicant stands to suffer immeasurably as he has been condemned unheard. The application was opposed by the Respondent who filed the counter affidavit in which the Respondent deponed that the application is without substance. Hearing of the application was done by way of written submissions. In the submission in chief which was almost the re-capitulation of the affidavit filed in support of the application, the counsel for the applicant was not served with a notice or information of withdrawal of an Advocate, as per the requirement of Regulation No. 63 (2) of the Advocates (Professional Conduct and Etiquettes) Regulations, 2018 G.N. No. 118 of 2018 which provides that: "An Advocate shallnot withdraw service except for good cause and upon written Notice to his client and the court" He said no notice was served to the applicant and the court. He said also that even Regulations 66 (2) and 67 (1) of the Advocate Professional Conduct and Etiquettes Regulations, 2018 also insist on the requirement of the Notice of withdrawal and that the notice must be of 30 days informing the client. He said the procedure herein above was not complied with therefore the purporting withdrawal was illegal, therefore the applicant was denied her right to be heard under the law and constitution of the United Republic of Tanzania, 1977. He said even the counter affidavit has not disputed the facts that there is no written notice as per the requirement of the law on the advocate's withdrawal. He insisted that at the time ofwithdrawal, the applicant was in South Africa, therefore he prayed for setting aside the dismissal order and restoration of the case. In reply, the respondent through theservice of Mr.Moses Mmbando, Advocate submitted that, the applicant had a duty to follow up on his case and that the mere fact that he instructed an Advocate does not mean that, he had to abandon the case and leave it to the Advocate's desk, based on that argument, he said the applicant's complaint does not hold water. In his view, Mr. Kinabo, Advocate, as an officer of the court could not have lied when he said that he had no cooperation from his client, as there is no reason given for him not to be disbelieved. He also reminded the court that if we are to believe that, Mr. Kinabo, did not give the notice of withdrawal, then that omission is more of an etiquette matter than the ground for restoration of the dismissed matter for want of appearance and prosecution. To support that contention, he cited the case of KFinance Limited vs Lipina Michael Mrema, Misc Civil Application No. 407 of 2022, High Court of Tanzania at Dar-es-Salaam in which it was held inter aiia\hdX.\ "As for the reason o f the delay the applicant blames her Advocate for abandoning the appeal without her knowledge. In terms o f settled law, a person engaging an Advocate to represent him or her in the court is duty-bound to make dose follow-up on the status o f the case. The omission to make follow-up on the status o f the case is not a sufficient cause." This position was stated in the case of Lim Han Yun and Another vs Lucy Theseas Kristensen, civil appeal No. 219 of 2019 where the Court of Appeal held: "The applicant cannot throw the whole blame on their Advocates. We think that a party to a case who engages the service o f an Advocate must closely follow up on the progress and status o f his case. A party who dumps his case to an Advocate and does not make any follow-ups o f his case cannot be heard complaining that he did not know and was not informed by his Advocate the progress and status o f his case." In the end. He urges this court to dismiss the application because the applicant has failed to advance sufficient reason to warrant restoration of this matter. The applicant was supposed to file his rejoinder on 02/07/2024 but did not file one, since the matter was scheduled for mention with the view of fixing the ruling date then, and on that date, parties were represented by an Advocate, then, the court fixed a ruling date. The provision upon which the court has been moved in this application, i.e. Order IX Rule 3 of the Civil Procedure Code [Cap 33 R.E. 2019], which provides that; 1'Where a suit is dismissed under rule 2, the plaintiff may (subject to the law o f limitation) bring a fresh suit, or he may apply to set aside the dismissal order. I f he satisfies the court that there was good cause for his non-appearance, the court shall set aside the dismissal order and shall appoint a day for proceeding with the suit." 6 From the provision, this court has powers to set aside the dismissal order and restore the matter that has been dismissed, if it is satisfied that there was good cause for his non-appearance. The catchphrase, it is evident from the provision, the powers of this court to set aside and restore the application is conditional to the applicant giving good cause to satisfy the Court that there was good cause that prevented him from appearing to the court on the date when the matter he seeks to restore was dismissed. That being the case, the issue for determination is whether the applicant has given sufficient cause for her non-appearance. In his effort to satisfy the court on the reasons for his non- appearance, the counsel for the applicant gave the following reasons, after he had instructed his Advocate to file the application and the main suit against the respondent, he believed that everything was in order, therefore he did not make any follow-up to his case. However, in responding to this, it is instructive to note that, the same Advocate who was instructed by the applicant, appeared in court and told the court that he disqualified himself from representing the applicant because his client, the applicant had not been cooperating. That statement forms part of the proceedings and has not been controverted by any evidence or argument in either the affidavit or submission made in support of the application. Although the counsel did not say categorically what kind of cooperation he was denied by his client, however, since the case is for parties, and Advocates are there to represent the parties, therefore failure of the party who instructed the advocate to make follow-up is tantamount to failure to give proper instruction to the Advocate how to represent the said parties. Moreover, the applicant alleges that the Advocate did give him the Notice of withdrawal before he withdrew from the conduct of the matter and in his view, that was against Regulation 63 (2) of the Advocate (Professional Conduct and Etiquettes) Regulation 2018 GN, 118 of 2018, which requires the Advocate to withdraw the service only on the ground of good cause and upon written Notice to his client. The provision is under PART IX of the Regulation, and it is titled "The Duty of An Advocate" Reading the provision I am convinced that the duty is of the Advocate toward his client, therefore in my considered view, the provision creates a responsibility to the Advocate to his client, and failure to fulfill that duty attract a sanction of course after the client has complained against the Advocate before the Advocates Disciplinary Committee which should take the disciplinary measures against the Advocate. Had the applicant done so, that would have at least created a base, for the applicant to be believed, failure to do so, leaves this court with only one option, to believe the Advocate who is the officer of the court. On this issue, I would like to associate myself with the findings of my brother, Kisanya, J in the decision of the case of KFinance Limited vs Lipina Michael Mrema, (Supra) and his reliance on the case of Lim Han Yun and Another vs Lucy Theseas Kristensen, (supra) that engagement of an Advocate does not obliviate, the parties’ duty to make a follow-up of his or her case. That being the case, I find the reason advanced by the applicant in asking the court to set aside its dismissal order to be insufficient for the court to exercise its powers to set aside the dismissal order. That said, I find the application to be devoid of merit, and thus dismiss it with costs. Consequently, the order dated 06/09/2023 that dismissed Misc. Civil Application No. 50 of 2023 is upheld. It is accordingly ordered. DATED and delivered at ARUSHA this 19th day of July 2024. JUDGE