exim bank t ltd another vs ameir mbarak amer mbarak 2023 tzhc 19262 21 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY)

AT MOROGORO MISC LAND APPLICATION NO. 17 OF 2023 (Arising from an Order ofthis Court dated March 2023(Hon. M. J. Chaba, J.,)in Land Case No. 23 of2022 which is pending before this Court) EXIM BANK(T)LTD APPLICANT KISHE AUCTION MART CO.LTD & COURT BROKER.... .....2"° APPLICANT

VERSUS AMEIR MBARAKA @ AMER MBARKA NAHDI .....RESPONDENT

RULING 2P^July, 2023 M. J. CHABA,J. The Applicants herein have brought this Chamber Application made under Order VIII, Rule 30(1),(2)and (3), section 3A and 3B (1),(a),(b),(c)and section 95 both of the Civil Procedure Code [CAP. 33 R. E, 2019], moving this court to vacate its previous order dated 13"^*^ March, 2023 in which I struck out the Applicants'joint Written Statement of Defence(WSD)in Land Case No. 23 of 2022 which is still pending before this court and sought to restore the same. The applicants further prayed this application be heard on merits on both sides. In essence, the applicants written statement of defence was struck out by this court for non-appearance for both the applicants and their learned counsel. Page 1 of 10 The applicants' application was supported by a sworn affidavit of one Zuri'el Kazungu, the learned advocate from Mawalla Advocates Law Chambers. On the other hand, the respondent strongly resisted this application by filling a counter affidavit sworn by Jackson Liwewa, the learned advocate Jackson from CSB Law Chambers. By consensus, parties agreed to argue and dispose of the application by way of written submissions and both parties were represented. Whereas, Mr. Kazungu, learned counsel strengthened his muscles for the applicants, Mr. Jackson Liwewa, learned counsel entered appearance for the respondent. Both parties complied with the courts

scheduling orders. Having adopted the affidavit deposed by him, Mr. Kazungu went on submitting that the applicants/defendants' written statement of defence was struct out from the registry of this court for failure to enter appearance in court for two days, that is from 27**^ January, 2023 when the same was scheduled for mediation and on the 3^^ February, 2023 when the mediation was marked failed before the mediator Judge. He accentuated that, failure to enter appearance for two days was neither advertent nor negligence but a pure human error or confusion to record in the diary on 27^^ February, 2023 instead of 27^^ January, 2023. He submitted further that, looking at the applicants' previous conduct, both were attending in court without failure since the Institution of the case. It was Mr. Kazungu's contention that, justice demands that suits must be determined on Page 2 of 10 X » ¥ r «. ' merits to its finality, unless there are special reasons to the contrary. He argued that, the respondent will not be prejudiced in no way if the court will grant this application. He concluded by arguing that, as the instant application was brought promptly, and considering the overriding objectives as provided under sections 3A and 3B (1)(a),(b) and (c) of the Civil Procedure Code,[CAP. 33 R. E, 2019] and given the fact that, the respondent stands to suffer no prejudiced should

this application be granted, it was therefore his humble prayers that this court based on the interest of justice be pleased to vacate its order dated 13^^ March, 2023 and restore the applicants written statement of defence so that the applicants' case can be heard and both parties be afforded with the rights to litigate their rights to the conclusive end. To support his application, Mr. Kazungu cited a number of authorities albeit including the cases of National Bank of Commence Limited vs. Ahmed Freight Limited and Two Others, Misc. Commercial Application No. 230 of 2016, High Court of Tanzania - Commercial Division, at Dar Es Salaam; CRD Bank PLC vs. Saumu Henry Sakala, Misc. Comm. Application No. 168 of 2020, High Court of Tanzania - Commercial Division, at Dar Es Salaam (All unreported); Fredrick Seienga and Another vs. Agness Masele [1983] TLR 23; Sadru Mangaiji vs. Abdul Aziz Lalani and Two Others, Misc. Comm. Application No. 126 of 2016, High Court of Tanzania - Commercial Division, at Mwanza (unreported) and Bahati Musa Hamisi Mtopa vs. Salum Rashid, Civil Page 3 of 10 Application No. 112/07 of 2018, Court of Appeal of Tanzania, at Dar Es Salaam (unreported). Submitting against the application Mr. Jackson Liwewa, iearned counsei for the defendants, aiso after he had adopted the counter affidavit, he opposed the appiication and prayers made by Mr. Kazungu. Mr. Jackson

submitted that, the learned counsel's assertion for mistakeniy recording of a different date which was 27^^ February, 2023 instead of 27^^ January, 2023 in his diary is not a sufficient reason and hoids no water. He stated that, since the appiicants' counsels failed to appear before a mediator Judge on 27"^ January, 2023 and 3^^ February, 2023 without reasons the same constitutes professional negligence on the part of the applicants' counsei. To support his contention, Mr. Liwewa referred this court to the case of Grace Olotu Martin vs. Amir Ramadhani Mpungwe, Civil Appeal No. 91 of 2020, Court of Appeal of Tanzania, sitting at Dar Es Saiaam (unreported), where it was held that: "Even an honest mistake on the part of the defendant may be no exercise and a person may be liable for trespass when he enters upon the land of another person honestly believing it to be his own". Mr. Jackson goes on to submit further that, the appiicants themselves were supposed to make a follow up on their case and attend to the court as it is not Page 4 of 10 only the duty of advocate. It was his submission that, had the applicants made a follow up, this mistake alleged by their advocate would have been avoided if they were attending the court. He cited the decision of the Court of Appeal of Tanzania in the case of Lim Han Yung and Lfm Trading Company Ltd vs. Lucy Yreseas Kristensen, Civil Appeal No.

219 of 2019, Court of Appeal of Tanzania, at Dar es Salaam [2022] TZCA 400, wherein the CAT held that: - '\..that a party to case who engages the services of an advocate, has a duty to closely follow up the progress and status ofhis case..." To conclude, Mr. Jackson Liwewa averred that, it is the settled position of the law that parties to the case have a duty to show great diligence and not apathy negligence or sloppiness in the prosecution of the action that he intends to take as it was underscored by the Court of Appeal of Tanzania in the case of Lyamuya Construction Co. Ltd vs. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application No. 2 of 2010)[2011]TZCA 4 (3 October 2011). He underlined further that, applicants are companies that have employees and directors who could have been attending on behalf of such companies but all failed to appear without justifiable reasons. He stated that, his contention is in line with the decision of the Court of Appeal of Tanzania in the afore-stated case of Lyamuya Construction Co. Ltd (supra). He therefore, prayed the application be dismissed with costs. Page 5 of 10 I have dispassionately considered the rival submissions advanced by the learned Counsel for both parties regarding the instant application. As the court records reveals, the applicants' thirsty is to restore the suit that was dismissed

for non-appearance in mediation. It is trite law that, an applicant(s) who seeks to set aside and restore the suit that was dismissed for non-appearance is duty bound to furnish the court with sufficient reasons for non-appearance when his/her case was called on for mediation. As gleaned from the affidavit deposed by the learned advocate Kazungu, he underlined that being an advocate for the applicants he failed to enter appear appearance in court when the matter was called on for mediation on the ground of mistakenly recording the dates scheduled for mediation that is, 27^ January, 2023 and instead therefore, he recorded 27*'^ February, 2023. According to him, with all the time has been attending in court without fail except on the material date where he mistakenly recorded the dates scheduled for mediation. To buttress his contention, Mr. Kazungu attached along with his chamber summons backed up by an affidavit sworn by himself the court proceedings showing that has been attending in court since on 5*^ October, 2022 without fail. On the other, Mr. Jackson Liwewa, the learned counsel for the respondent strongly opposed the arguments advanced by Mr. Kazungu and averred that the reasons put forward by him in a bid to justify his prayers are baseless and holds no water. Page 6 of 10 I have weighted the arguments for and against the application as presented to me by the counsel for

the parties, I think in my considered opinion that, Mr. Kazungu has sufficiently demonstrated the reasons why he didn't appear before the court to continue with the mediation on 27^ January, 2023.1 have reached to this conclusion upon considering among other things, the counsel for the applicants has all along attending in court to prosecute his case, save for those two occasions that he did not enter appearance. As correctly submitted by Mr. Kazungu wrong recording of the date in his diary is purely a human error something which can be committed by any human being. Looking at the whole application, I am convinced that the counsel for the applicants had no ill motives for absconding the mediations taking into account he has all along attending in court. Placed reliance on the above finding, I am inspired with the holding of the Court of Appeal of Tanzania in the case of Bahati Musa Hamisi Mtopa vs. Salum Rashid, Civil Application No. 112/07 of 2018, CAT sitting at Dar Es Salaam (unreported), wherein the Court observed that: - 'That where there has been a bona fide mistake, and no damage has been done to the other side which cannot be sufficiently compensated by costs, the court should learn towards exercising its discretion in such a way that no party is Page 7 of 10 shut out from being heard; and accordingly, a procedural error, or even a blunder on a point oflaw, on the part

ofan advocate (including that of his derk), such as failure to take prescribed procedural steps or to take them in due time, should be taken with a humane approach and not without sympathy for the parties, and, in a proper case, such mistake may be a ground tojustify the courtin exercising its discretion to rectify the mistakes if the interests ofjustice so dictate, because the door ofjustice is not dosed merely because a mistake has been made by a person ofexperience who ought to have known better, and there is nothing in the nature of such mistake to exclude it from being a proper ground for putting things right in the interests ofjustice and without damage to the other side;" Having highlighted the principle of law, I therefore hold that the error committed by the counsel for the applicants was purely a human error. In my view, I think that, if the instant application will be granted, I am sure that no serious damage(s) might occur on the side of the respondent. Given the surrounding circumstance of this application and guided by the provisions of sections 3A and 3B of the CPC as cited by the counsel for the applicants, and further upon invoking the powers bestowed upon me under section 95 of the CPC(supra), I find that this application Page 8 of 10 has merits because the applicant has demonstrated sufficient cause for non- appearance before this court on the 27^^ January,

2023 and 3"^^ February, 2023 when Land Case No. 23 of 2022 was called on for mediation. For the foregoing reasons, I grant the prayers sought by the applicants and proceed to set aside the order for striking out the applicants' Written Statement of Defence dated 13^^ day of March, 2023 and restore the same in Land Case No. 23 of 2022. Since, I am aware that parties to this application are not ready to settle the matter under the umbrella of mediation, I see no need to act upon the provision of Order VIII, Rule 30 (3) of the CPC (supra). Costs to abide the event in the main cause. It is so ordered. DATED at MOROGORO this 21^ day of July 2023. Sy - cz: M. J. C ABA UJ X , r. *•' DGE 21/07/2023 Page 9 of 10 Court: Ruling delivered under my hand and Seal of the Court in Chambers this 21®^ July, 2023 in the presence of Mr. Zurial Kazungu, Learned Advocate for the Applicant and Mr. Jackson Liwewa, Learned Advocate for the respondent. Sgd: A. W.HMBANDO

DEPUTY REGISTRAR 21/07/2023 Court: Right to appeal fully explained o o Sgd: A. V/i MMBANDO X lU TY REGISTRAR D 21/07/2023 Page 10 of 10