RULING Nyamhanga 2

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB–REGISTRY) AT DAR ES SALAAM Misc. CIVIL APPLICATION NO 27114 OF 2024 (Originating from the order of this Honourable Court dated 23rd July 2024 in PC Appeal No 14150 of 2024) DAVID JOHN NYAMHANGA ………….......……………………………. APPLICANT: VERSUS GEOFREY LEONARD NYAMWIHULA.…………………….......………… RESPONDENT RULING: 11th & 27th March 2025. KIREKIANO J. This application is brought under Rule 17 of the Civil Procedure (Appeals in proceedings Originating in Primary Courts) Rules, 1964 (GN. No. 312 of 1964) and Section 95 of the Civil Procedure Code, Cap 33 RE 2019. The applicant herein seeks the following orders: - 1. Order to re-admit Pc Civil Appeal No. 14150 of 2024, which was dismissed for want of prosecution under rule 13(2) of Civil Procedure (Appeals in 1 Proceedings Originating in Primary Courts) Rules, 1964(GN. No. 312 of 1964). 2. Costs be provided for 3. Any other relief this I honourable Court deems to grant. The applicant had a civil case against the respondent in 2022 at the Primary Court of Ilala, Buguruni, Civil Case No. 34/2022, where the court ruled in favour of the applicant. Aggrieved by this decision, the respondent appealed to the District Court of Ilala at Kinyerezi in Civil Appeal No. 34 of 2022, which ultimately entered judgment in favour of the respondent. The applicant, aggrieved by the district court's decision, appealed to this honourable court. The record indicates that the applicant filed his appeal through the online filing system on September 19, 2023, and it was admitted on September 20, 2023. According to him, he was issued a bill on 26th September, which he paid. It is the applicant's deposition that he has been making follow-up inquiries at the registry, seeking a summons and inquiring as to whom the matter has been assigned and when it will be called for a hearing. Still, his effort ended in vain as he was told that there is a new online filing system in all matters, and those lodged via the old system will be transferred to or shifted to the new 2 system. Thus, he should wait and will be notified after the end year the court vacation It wasn't until 20th October 2024 that he was issued a Reference number, but the matter was dismissed for want of prosecution on 23rd July 2024 due to the non-appearance of the parties. According to the applicant, his absence was not due to negligence or laxity on his part, but it was beyond his control as he was told to wait for the case to be transformed from the old online system to the new online system. That being the case, the applicant has submitted an application to set aside the dismissal order on the reason above stated that is it he was not at fault when he did not appear to prosecute his appeal On the part of the respondent, he contested the application by filing a counter-affidavit, deposed to by the respondent. In his counter-affidavit, he stated that he had never been served with any appeal document regarding the judgment of the District Court of Ilala in PC Civil Appeal No. 47 of 2022. He further contested the correspondences of the applicant with the Registry, as no proof to that effect was tendered. 3 The hearing of the application was conducted by way of written submission. The applicant was unrepresented while Mr. Dickson Majaliwa, Learned Advocate, represented the respondent. In his submission, the applicant submitted that neither party appeared in Court for a hearing because neither party were issued a summons to appear in Court, which led to the dismissal of the case. He referred this Court to the case of Hassan Abdukarim Ismail vs Said Adam Mtupi, Misc, Civil application No. 4 of 2021, and the case of Tanga Cement Co. Ltd vs Jumanne D. Masangwa and another, Civil Application No. 6 of 2001, CAT- Tangato the effect that if sufficient reason for non appearance is given, then the Court re- admit the appeal. He further submitted that the applicant had taken all reasonable measures by communicating with the deputy registrar, but all efforts were futile until 20th October, when he was informed that the matter had been assigned to me and was already dismissed for non-appearance. He cited the case of Nasibu Sungura vs Peter Msechu, Civil Appeal No. 24 of 2017, on sufficient reasons to vacate the dismissal order. He finally prayed that the appeal be re- admitted. 4 On the part of the respondent, he argued that the applicant has not demonstrated any sufficient reason warranting the grant of the application. He referred this Court to the case of Tanga Cement Co. Ltd. (supra) for the Court's discretion to determine sufficient reasons. He went on to submit that after appealing, the applicant abandoned the same, and no proof of serious, appropriate follow-ups has been tendered. He submitted that the applicant have been mentioning the Court officers without disclosing their names and no affidavit of any officer has been filed in support of the application. He referred this Court to the case of NBC Ltd vs Superdoll Trailer Manufacturing Company Limited, Civil Application No. 13 of 2002 (unreported), and Benedict Kimwaga vs Principal Secretary, Ministry of Health, Civil Application No. 31 of 2000 (unreported) on the effect of an affidavit which mentions another person. He submitted that the applicant, under paragraphs 7 and 8 of the affidavits, admitted to extreme laxity and lack of diligence in making follow-ups with the Court Registry regarding the status of his appeal, which spanned from 7th June to 20th October 2024, a period of four months and two weeks, without providing any substantial reasons for the neglect. To fortify his stance, He 5 referred the case of NCBA Bank Tanzania Limited vs TACAS Limited and 2 others, Misc. Civil Application No. 1 of 2021 to that effect. Mr. Majaliwa further submitted that despite the applicant averring that he made follow-ups to the registrar, he never annexed any letter to his affidavit or even brought the same by way of reply to the respondent’s counter-affidavit. He referred to the case of Attorney General & Others vs Elige Edward Massawe & others, Civil Appeal No. 86 of 2002 (unreported) on the applicant’s failure to discharge his burden of proof laid on him. In his rejoinder submission, the applicant reiterated his submission in chief and added that he does not blame the judicial filing system or any person for the dismissal of his appeal; rather, he narrates what transpired that led to the dismissal of his appeal. He added that, although the name of the person was not mentioned, the applicant just referred to the position and not the name of the person. He distinguished the case of NCBA Bank Tanzania Limited (supra) as it was dealing with the preliminary objection on extension of time to file review, contrary to the situation in this application. He finally prayed the application be granted. 6 I have reviewed the submissions of both parties and read the record of this Court. The main issue for determination is whether the application is merited or not. It is not disputed that the applicant failed to enter an appearance more than three times, and the Court finally dismissed the appeal for want of appearance. The applicant in his affidavit has shown reasons for not attending the Court session as he was not aware of the case to which the matter was assigned, and when it would be called for hearing after he had already paid the government bill dated 26/09/2023. Apart from all efforts made in the making follow-ups of the case, including writing the letter to the Registrar about the status of the case, it was not until 20/10/2024 when he was informed that the matter was before me and the same had already been dismissed for non-appearance. The respondent’s argument contesting the application was mostly based on the truthfulness of the applicant, as he did not attach the affidavit of whom he was making follow-ups, including that of the Registrar. I have taken note of this and am aware of the cited cases of NBC Ltd vs Superdoll Trailer Manufacturing Company Limited (supra) and 7 Benedict Kimwaga (supra), which both require a person mentioned in the affidavit to swear an affidavit; otherwise, the averments remain hearsay. The concern of the counsel for the respondent was that the Registrar did not swear an affidavit verifying the challenges in the Court filing. No affidavit was indeed attached to the applicant’s affidavit. However, since the applicant stated that he faced issues with the new online system and what he did in making a follow-up, this does not render his deposition hearsay. An affidavit of the registry officer would under the circumstances would corroborate his deposition, but a lack of the same does not abrogate what was in his personal knowledge. According to the record of this Court, which was also referenced in the applicant’s application, it is noted that the appeal was filed on 19/09/2023 and admitted on 20/09/2023. The bill was formulated on 26/09/2023, and the applicant paid it on the same date. Upon further review of the record, the case was first heard before the Honourable Judge for initial orders on June 22, 2024, and was dismissed on July 23, 2024, due to non-appearance. I have also taken note of the letter to the Registrar, dated 7 June 2024, from the applicant claiming the status of his case from 26 September 2023 to 7 June 2024. The respondent's argument that the applicant was highly lax in making 8 follow-ups does not appear in the records, which indicate that the case was never assigned until July 6, 2024. With this, it is evident that the applicant faced the negative aspects of migration, from the hard copy to the digital system. In all fairness, I can not turn a blind eye to this. My reasoning is inspired by the old Latin maxim "Actus curiae neminem gravabit," which means that an act of the Court shall prejudice no one. Under such circumstances, the application is merited. The dismissal order dated July 23, 2024, is set aside. Consequently, Pc Civil Appeal No. 14150 of 2024 is hereby restored. No order as to costs. A J KIREKIANO JUDGE 27.3.2025 9 COURT Ruling delivered in presence of the applicant and the respondent A J KIREKIANO JUDGE 27.3.2025 10