FORTIDAS KAMALA VS UKUSHIRA GERVAS MSIMBU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA MISC. CIVIL APPEAL NO. 18791 OF 2024 (Arising from the Ruling in Misc Application No. 15 of2023 dated 29/05/2024 before Ilemela District Court which originated from bill of costs No. 2 of2021) FORTIDAS KAMALA............................................................. 1st APPELLANT TASIANA KAMALA................................................................2nd APPELLANT VERSUS UKUSHIRA (GERVAS MSIMBU)..............................................RESPONDENT JUDGEMENT 05th & 6P1February, 2025 A. MATUMA, J. In this appeal the appellants are challenging the findings/ruling of the District Court of Ilemela which denied them extension of time within which to file an application to set aside the dismissal order of their application of Bill of costs. Previously, the appellants had filed in the District Court Bill of costs vide Application for Bill of cost No.02/2021 but thesame was dismissed for 1 want of prosecution following the non-appearance of the parties five times consecutively which comprised six months of non-appearance. The grounds advanced in that application were that the applicants at the time of the dismissal of such application were busy defending another case in the High Court (Civil Appeal No.49 of 2021) and that the dismissal order amounted to illegality which is a good ground for extension of time. The District Court after having heard the parties for and against the application determined that no sufficient cause for the delay was established because the appearance of a party to one case is not an excuse to default appearance in another case. In respect of the ground of illegality, the District Court determined that it was funtus officio on the matter. The appellants are now before this Court in this appeal armed with two grounds to the effect that; i. It was wrong for the trial magistrate to dismiss their application while they advanced a ground of illegality which is one of the grounds for extension of time. ii. That a point of technical delay was wrongly rejected. 2 At the hearing of this appeal the first appellant was present and along with him Mr. Ditrick Ishabairu learned advocate stood representing all appellants. The respondent was as well present being represented by Mr. Joseph Kinango learned advocate. Arguing for this application Mr. Ditrick learned advocate submitted on the first ground of illegality that the dismissal order was made on 12/05/2022 the date of which the matter was fixed for mention and not hearing. As such he argued that the District Court cited Order IX rule 2 of the Civil Procedure Code as an enabling provision for the dismissal but such provision does not confer jurisdiction to the court to dismiss the suit on the mention date. The learned advocate cited to me the case of Mr. Lembrice Israel Kivuyo versus M/S DHL World Wide Express DHL Tanzania Limited, Civil Appeal No. 83 of2008, CAT at Arusha which they had also cited at the District Court to show that it was held in that case that it is wrong to dismiss the suit at the "mention" date. He also cited the case of Oliva Kabakobwa versus Akiba Commercial Bank (T) LTD and Another, Land Appeal No. 12 of2021 (High Court) to the same effect that a case cannot be dismissed at the " ntion" date. The learned advocate fortified that since the suit was dismissed on a day it was fixed for mention, that was illegality which is a ground for extending time even without accounting for the delay. To that effect, he cited the case of Minister of Defence and National Service versus Devran Vaiambia (1992) TLR182. On the second ground, the learned advocate submitted that in the lower court, they advanced a ground of technical delay but the same was wrongly rejected in disregard to the well-established principle that technical delay is excusable as it was held in the case of Basiiia Benedict Kisomo versus The Hon. Attorney Genera! and 2 others, Misc. Civil Application No. 478 of2022 (HC) at page 8. He argued that during the pendency of Bill of Costs, the Appellants had a pending appeal in the High Court which was Civil Appeal No. 49 of 2021 and were busy defending it. He thus prayed for this appeal to be allowed with costs and Bill of Cost No. 2/2021 be restored. In response thereof, Mr. Joseph learned advocate started to argue the second ground pressing that there was no technical delay because the appellants after filing their application in the District Court defaulted appearance five times consecutively which were on 20/12/2021, 17/01/2022, 31/01/2022, 12/04/2022 and 15/05/2022 when the court dismissed such application for want of prosecution. He added that the appellants did not establish that on such five different dates, they were attending the stated civil Appeal. He also argued that Civil Appeal No.49/2021 was dismissed on 5/8/2022 but the appellants approached the District Court on 21/02/2023 to be supplied with a dismissal order which was six months after the dismissal of their Civil Appeal Supra. He added that from the date of the dismissal of the Bill of Costs on 15/5/2022 up to 28/06/2023 when the Application for extension of time was filed it was above twelve months. The learned advocate further submitted that the appellants in their affidavit averred that they were supplied with the proceedings of the dismissal order on 06/06/2023 but yet they stayed mute for 22 days before filing the application which is subject to this appeal. Back to the first ground relating to illegality, the learned advocate for the respondent argued that the dismissal of the suit on the mentioned date does not amount to illegality. He finally argued that the appellants were duty-bound to establish good cause for the delay but they did not. He finally prayed for the dismissal of this appeal with costs. Having heard the parties as herein above reflected I would now make my findings as hereunder. 5. In respect of the ground of technical delay, I am settled in mind that the learned magistrate properly rejected it. The appearance of a party to one court has not been a ground for defaulting his appearance to another Court because that amounts to the failure of such party to maintain its diary. The party to any suit is bound to maintain his diary so that he attends all cases bound for him to appear, see; Cooperative and Rural Development Bank Versus FUton (Tanzania) Limited (1993) TLR 284. As rightly submitted by Mr. Joseph learned advocate, the appellants' Bill of Costs in the District Court was a different case altogether from the Respondent's Civil Appeal no. 49 of 2021. Each case ought to be attended accordingly even if the parties to both cases were the same. The parties ought to have maintained their respective diaries so that none of the two cases stand deserted. In the instant matter the appellants' application for Bill of costs was dismissed on 12/05/2022 after several adjournments as reflected herein above. I once again agree with Mr. Joseph learned advocate that the appellants did not establish that at all times on each date when their application came for mention in the District Court they were attending in the High Court. Even if it could have been explained as such, the question would be why was it so. Was it a coincidence or a plan and if a plan who planned it and for what! If the dates fixed in the High Court for the appeal were different from the dates fixed for the Bill of Costs in the District Court, then why didn't they show up in that application! But again, even if we agree that the appellants' appearance to the High Court in defending civil Appeal No.49/2021 amounted to a technical delay as Mr. Ditrick learned advocate would wish this court to rule out, only the period of the pendency of such appeal would be excused. As reflected supra, such an appeal was finally determined on 05/08/2022. The appellants filed their application on 28/06/2023 almost eleven months after determination of the Civil Appeal. Was this period a technical delay! Obviously not. Assuming that the Appellants discovered the dismissal order on the date they wrote a letter to request copies of such dismissal order and proceedings on 20/02/2023, they have admittedly stated that they received such documents on 06/06/2023. In the circumstance even if I have to agree that such period be excluded as a technical delay, the appellants were still bound to account for the period of delay from 06/06/2023 to 28/06/2023 which is twenty-two days. This period in no 7 way can be covered by a technical delay ground because it is not within the period of the pendency of Civil Appeal No.49/2021 nor was it a period within which the appellant were waiting to be supplied with the dismissal order and proceedings. In the circumstances, such ground was sufficiently rejected and I also reject it. Coming to the ground of illegality, the same was argued in the context that the dismissal was made on the date when the matter was fixed for mention and not for hearing. Without reproducing the arguments of the parties as herein above reflected, I join hands with the trial magistrate in his findings that the District Court was funtus officio. It was the same Court which dismissed the matter for want of prosecution and if such dismissal was illegal it befitted to be challenged on appeal or to the Higher court in any other manner. The District Court's power was to set it aside upon sufficient cause established by the appellants for their non-appearance. Any attempt of such Court to accept that there was illegality in dismissing such an application would amount to pre-empting the intended application to have the dismissal order set aside. Nevertheless, I have taken my time to scrutiny the ground in accordance to the facts on record and the submission of the parties. Having carefully considered the appellants' arguments on this ground of illegality, I have discovered that the same is brought as a fishing ground because there is a clear delay for months and or days which they have failed to account for it. They have not even attempted to explain why they didn't take any action against the dismissal order after obtaining it from the District Court. They stayed mute for almost twenty-two days without any action. In various cases such as Yahaya Rashidi versus Hamisi Mussa, PC Civil Appeal no, 18 of 2021 (HC) at Kigoma, and G4S Secure Solutions (T) L TD versus Mapinduzi Marwa Mecha, Misc. Labour Application no. 21 of 2021 (HC) at Shinyanga, this court held that illegality cannot be used as a fishing ground for those who fail to account for each day of the delay which is a primary role in an application for extension of time. Back to the arguments that a case cannot be dismissed for want of prosecution on the date it is fixed for mention, it is my findings that it would depend on the facts of each case. When the parties are vigilant to litigate the matter and are always cooperative to the court to push the case forward, obviously the case cannot be dismissed on the date it is fixed for mention because it takes a step ahead on each day when it comes for mention. But when the parties desert the case, not cooperative to the court and are nowhere to be seen without any notice, the court is duty bound to dismiss such case as it was not established to register suits and keep adjourning them without any progressive future. It is my considered findings that when the matter is fixed for mention, the purpose is for it to come for the Court to issue necessary orders. If the parties default appearance on the mention date, they deny the Court an opportunity to issue necessary orders for the progress of the suit or application. Under the circumstances the matter cannot be let to stag in the Court registry indefinitely merely because it bears an order for "mention". The dismissal order in my view is one of the necessary orders that can be issued on the date when the matter comes for mention. There is no law prohibiting dismissal order on the date fixed for mention of the matter. The case of Mr. Lemberice Israel Kivuyo is distinguishable because its facts are totally different to the facts in this case. In that case the matter was dismissal for want of prosecution in the presence of both parties only that there was a requesting for adjournment of the case which the Court refused. In the instant matter both parties were 'o consecutively absent for several adjournments in the period of six months. To rule out that the Court could not dismiss it merely because it was a mention date, would mean that to date, tomorrow, and for years and decades to come, the appellants application could have still pending in the register and continue to survive therein until the end of the world and the universe provided that the applicants could continue absenting themselves. That is not the spirit of the law and in fact it is against the law which provides for scheduling orders within which suits have to be conclusively determined. I don't believe that the Court of appeal in Mr. Lembrice's case would have taken the same stance that a case cannot be dismissed on a mention date but on a hearing date had it bear the same facts to this instant one whereas the parties had completely abandoned the case by defaulting appearance without any notice. When the Court fixes a matter for mention, it does not do so for leisure. It do so for the matter to come on a serious Court business whereas the Court expects to meet the parties to scrutiny the stage reached and agree with the parties for the way forward to hav^ the matter finally 1 determined. If the parties desert their case, there would be no option for the Court rather than dismissing it from the register. We cannot stand saying since the matter was fixed for mention we cannot remove it from the register despite clear facts that such a matter has been deserted. I therefore reject this ground. Consequently, this appeal is dismissed in its entirety with costs. Right of further appeal explained. It is so ordered. 40^ A ^u 06/02/2025