FILBART FORTUNATUS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA MISCELLANEOUS CIVIL APPLICATION NO. 15248 OF 2024 (Arising from Land Case Appeal No.21 of 2023, High Court of Tanzania at Bukoba, Miscellaneous Land Application No. 15 of 2021, Land Case Appeal No.172 of 2016, Land Application No.120 of 2019 District Land and Housing Tribunal for Kagera at Bukoba originating from Civil Case No. 35 of 2014 of Kitendaguro Ward Tribunal) FILBART FORTUNATUS.................................................... APPLICANT VERSUS ALICIA ANTHONI............................................................... RESPONDENT RULING 19th & 11/10/ 2024 KIWONDE, J. The applicant one Filbart Fortunatos filed an application by way of chamber summons supported by his affidavit praying for the reliefs below: i. This court be pleased to re-admit Land Case Appeal No. 21 of 2023 High Court of Tanzania at Bukoba. ii. Any other orders or reliefs this honourable court deems fit and just to grant. i The respondent filed counter affidavit disputing the facts deponed by the applicant and the matter became ripe for hearing. The application, by leave of the court, was argued by way of filing written submission. In the submissions in-chief, the applicant said he misheard the next adjourned date for hearing of Land Case Appeal No. 21 of 2023. He said he heard it was fixed for hearing on 28th May 2024 while in actual sense, it was on 27th May 2024. So, when the appeal was called on for hearing he was not there in court and the appeal was dismissed for want of prosecution. In his affidavit, the applicant raised the same single reason for this application for re-admission of the dismissed appeal to be mistaken date of hearing. In reply, the respondent argued that the applicant was negligent to heed to the court orders which must be respected. She said the fact that the applicant mistakenly heard different date of hearing is untrue. It was argued that there was supposed to be filed an affidavit of the person who supplied the information to indicate the source of it. Also, the respondent submitted that there must be sufficient cause for the court to re-admit the dismissed appeal citing various case laws which I will not reproduce or repeat here. There were no rejoinder submissions. 2 From the records and the written submissions, the main issue for determination is whether the application has been merited or otherwise. The position of the law is that, this court can re-admit the dismissed appeal, if it is proved that the applicant was prevented by a sufficient cause from appearing in court when the appeal was called up for hearing. This is stipulated under 0. XXXIX r.19 of the Civil Procedure Code, cap 33 (R. E 2019). However, as to what amounts to sufficient cause depends on the circumstances of each case. For instance, something beyond human control like illness. In the present application, the applicant is said to have misheard the next adjourned hearing date. This means when the appeal was adjourned, he was present in court but he mistakenly heard that the appeal was fixed for hearing on 28th May 2024 instead of 27th May 2024. The respondent said the applicant was negligent and not diligent enough to heed to the adjourned date. But this mistake can happen to any other person. It has not been established that the applicant intentionally defaulted to appear on the hearing date of the appeal. Instead, the applicant is shown to have been attending in court whenever the matter was fixed for certain action that is why he entered appearance on 28th May 2024, only to be informed that 3 the appeal was fixed for hearing the day before and it had been dismissed. So, the applicant was pursuing his rights but he misheard the date of hearing of the appeal. The argument that there was a need to have affidavit of the person who supplied information to the applicant, in my view, is misplaced. This is because the court official merely told the applicant that the appeal had been dismissed on 27th May 2024. This information required no proof by an affidavit because indeed, the appeal had been dismissed as per the court record. For that matter, I find and hold that the applicant has shown good cause for not attending in court on 27th May 2024 when the appeal was called up for hearing. As a result, the application is meritorious and it is hereby granted. For the interest of justice, I order re-admission of the dismissed Land Case Appeal No. 21 of 2023 so that the parties can be heard. Dated at Bukoba this 11th October 2024. Il F. H. KI WON DE JUDGE 11/10/2024 4 Court: Ruling is delivered in chamber in the presence of the applicant, Mr. Lameck John Erasto counsel for the respondent and Grace Mutoka (RMA) this 11th October 2024 and the right of appeal is explained. JUDGE 11/10/2024 5