fredinand lutatenekwa vs haji ukwaju 2019 tzhclandd 10 24 september 2019

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPL. NO. 217 OF 2017 FREDINAND LUTATENEKWA ...................................................... APPLICANT VERSUS HAJI UKWAJU ........................................................................RESPONDENT RULING Date of last order; 8/7/2018 Date of Ruling: 24/9/2018 A. Mohamed, J: Ferdinand Lutatenekwa, the applicant seeks this Court to set aside its dismissal order in Land Case No. 257 of 2012 (Wambura, J) issued on 20/2/2017 and to set a date for hearing of the suit. The application has been brought under rule 3 and 4 of Order IX, sections 68(c) and 95 of the Civil Procedure Code [Cap 33 R.E. 2002]. It is supported by an affidavit deposed by Thadei Agathon Hyera, the applicant’s advocate. i Following the respondent’s defaulting ap p ea ran ce on several occasions, on 8/7/2019, this Court ordered the applicant to prove his case ex parte against the respondent by w ay of written submissions. In support of the application, Mr. Hyera for the applicant, pointed out that the respondent has not opposed the application. He then urged this Court to adopt his affidavit to form part of his submission in support of the application. Lastly, he urged this Court to grant the sought prayers in the cham ber summons and that costs should be in the main suit. Mr. Hyera's affidavit essentially states that he was representing the applicant in Land Case No. 257 of 2017 between the applicant and respondent herein. And that on 20/2/2017, Hon. Judge Wambura dismissed the suit on account of Mr. Hyera’s failure to ap p ear on the mention date. And he further states his failure to ap p ear in Court was on account of being held up in a Presidential m otorcade on the morning of that day. Having examined the record, Mr. Hyera’s affidavit and the applicant's averments, 1state from the outset the application has to fail. 2 Following both parties default in ap p earan ce in Court in Land Case No. 257 of 2012, on 20/2/2017, Hon. Judge Wambura issued an order and marked that the matter had abated under rule 4 of Order XXII of the Civil Procedure Code [Cap. 33 R.E. 2002] that reads:- “4. (l).Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) where within the time limited by law by law no application is made under sub-rule (1) the suit 3 shall abate as against the deceased defendant." It is apparent, the applicant believes the suit was dismissed for non-appearance under rule 3 and 4 of Order IX of the Civil Procedure Code that provides as hereunder:- “3. Where neither party appears when the suit is called on for hearing the court may make an order that the suit be dismissed. 4. Where a suit is dismissed under rule 2 or rule 3, the plaintiff may, (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal side, and if he satisfies the court that there was sufficient cause for his not paying the court - fee and postal charges (if any) required within the time fixed before the issue of the order setting aside the dismissal and shall appoint a day for proceeding with the suit.” It is my view had the suit been dismissed for w ant of prosecution or non-appearance under the above cited provision as claim ed by the applicant, he could have urged this Court to set aside the order. However, as the suit was marked abated by the Presiding Judge, the applicant can have recourse to seek another appropriate remedy therefrom. For the above reasons, I find the application untenable and it is struck out with no order for costs. It is so ordered. A. MOHAMED JUDGE 24/9/2018 5