FATMA MOHAMED SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.24448 OF 2024 (Arising from Land Application No.240 of2023, of the District Land and Housing Tribunal for Temeke) FATMA OMARY MOHAMED.................................. ..1st APPELLANT IDARUS ABUBAKARI................................... .........2nd APPELLANT VERSUS BANANA VETERINARY CENTRE LIMITED.... .....1st RESPONDENT STANBIC TANZANIA LIMITED ..2nd RESPONDNT MAJEMBE AUCTION MART..... 3rd RESPONDENT RULING Date ofLast Order: 22.11.2024 Date ofJudgment: 04.12.2024 T.N. MWENEGOHA, J The Appeal emanates from the Decision of the District Land and Housing Tribunal for Temeke, hereinafter reffered as the Trial Tribunal. It follows the Decision of the Trial Tribunal to Dismiss an application by the appellant, who sought to set aside a dismissal Order, dated 21st August 2024. Against the Decision of the trial Tribunal, the appellant lodged the instant appeal based on the following ground: - 1. That, the Trial Tribunal erred in law by finding and holding that, appearance of an Advocate of the High Court was insufficient reason to set aside the Dismissal Order. i The Appeal was heard by written submissions and ex-parte against the 1st and 3rd respondents. Submitting in favour of the Appeal, Advocate Chali Juma maintained that, the Tribunal chairman misconceived his discretion power over the Application for restoration and finally denied the prayers sought by the Applicants while the reasons for restoration stated in the Affidavit were justifiable and amounted to good cause for restoration of the dismissed Land Application No. 97 of 2022. Therefore, this Court should reconsider the denied Application for restoration as the applicants gave good reasons for restoration of the dismissed case. To cement his arguments, he cited several cases including the case of Raphael K. Magongo and Another vs Kishoju Village Executive & Others, Mise Land Application NO. 86 OF 2023, High Court of Tanzania, (reported). In reply, Advocate Fredrick Mbise for the 2nd respondent maintained that, the counsel for the appellants is trying to mislead the Court contrary to what the Ruling in trial Tribunal is saying. The Chairperson gave out reasons for denying the said Application by considering what was stated in the affidavit and annexed documents. Therefore, the Trial Tribunal was right to dismiss the Application. Having heard the submissions of the parties, the issue for determination is whether the Appeal has merits or not. As explained above, the root of this case is found on the Dismissal Order of Honourable P.I Chinyele, dated 18/10/2024, vide Application No. 97/2022. As per the records, the Order resulted from a non-appearance of the parties on the material date, neither the applicants nor the respondents appeared. As they were aggrieved, the appellants filed Mise. Application No. 240 of 2023 hoping to set aside the Dismissal Order. The reasons relied upon by the applicants 2 for their non- appearance on the dates when the case was called at the Tria! Tribunal, is the absence of their Advocate, who was attending another matter before Hon. Mkeha J, at the High Court Commercial Division at Dar es Salaam. Even the accompanying affidavit was sworn by their Advocate, Juma Chali who stated the reasons aforegiven, which were denied by the Chairperson of the Trial Tribunal. In my opinion, the problem is not only what the Advocate was doing on the material date, rather the parties themselves have not accounted for their non-appearance. Moreover, no efforts were made to inform the Court of such absence. The advocate could have informed the Tribunal through a letter or submission of summons of the Court where he was attending. Further to that, as the matter was called for hearing the parties themselves could enter entrance to inform the Tribunal of their whereabouts of their advocate and make necessary prayers. In particular facts of the Application, it was dismissed for want of prosecution. The case was dismissed for want of prosecution, meaning the applicants were also not present to prosecute their case, neither was their advocate. In restoring their case, they were supposed to give reasons for their non - appearance too. Not just the non -appearance of their advocate. Failure of the parties to give reasons for their non- appearance is the same as failure to give sufficient reasons of non - appearance. For these reasons, I find nothing to fault the Decision of the Trial Tribunal given in Mise. Application No. 240 of 2023. Therefore, the ground of Appeal stated in the Memorandum of Appeal is denied for lacking merits. 3 In the end, the Appeal is dismissed with costs. The Decision and Orders of the Trial Tribunal are upheld. T.N. MWENEGOHA JUDGE 29/01/2025 4