FRANCIS KATENGU

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT POPOMA MISC. LANP APPLICATION NO. 77 OF 2023 (Originating from Land Appeal No. 15 o f2022 of District Land and Housing Tribunal for Dodoma) FRANCIS KATENGU...................................................................APPLICANT VERSUS PETER 3. MATAGA................................................................. RESPONOENT RULING . 01 07.2024 HASSAN, J.: The applicant herein, one Francis Katengu was aggrieved by the by the order of this court to dismiss the Miscellaneous Land Appeal No. 15 of 2023 for a want of prosecution under Order XXXIX rule 17 (1) of the Civil Procedure Code, Cap 33 R.E. 2019. In such appeal, the appellant was distressed by the decision of the District Land and Housing Tribunal (DLHT) l for Dodoma in the Land Application No. 260 of 2022 of which, the respondent herein had emerged victorious. The brief facts of the matter are as such, upon exercising his right of appeal conferred under section 41 (1)(2) of the Land Disputes Courts Act, Cap. 216 R. E. 2019, to clash the decision of the District Land and Housing Tribunal (DLHT) of Dodoma, the appellant lodged memorandum of appeal stocked with seven (7) grounds of appeal to be determined by the court. However, for the reason to be apparent later, I will not relocate the said grounds of appeal hereunder. Coming on 2nd day of October, 2023, the matter was called on for hearing. During hearing, neither the appellant nor his advocate has entered presence, and no notice of absence was issued to the court. Whereas, on the other side, the respondent entered presence under the warden of learned advocate Ms. Amina Sungura. On the day, in her submission, Ms. Sungura requested the court to dismiss the appeal for want of prosecution. Unhesitatingly, the court made an order for dismissal of the appeal as prayed by respondent's counsel. Being unsatisfied by the order, the applicant filed the instant application begging 2 the court to set aside its dismissal order as herein-above mentioned and thereafter, to restore the Land Appeal No. 15 of 2023. The application has been brought by way of chamber summons together with an affidavit deponed by applicant's advocate, one Meshack Majaga Dede yielding 17 paragraphs. In the affidavit, the relevant paragraphs depicting the reasons of which, the deponent has unveiled are paragraphs 7, 8 and 9. In brief, in these paragraphs, the advocate for the applicant is trying to show that he failed to attend court hearing due to serious sickness which he had suffered. And that, he communicated with the respondent's advocate to hold brief on his behalf. He further averred that; the respondent's advocate had instructed another fellow advocate to take charge of his request but all effort went in vain as the matter remained unattended. On the other side, to counter what was alleged by the applicant's advocate in his affidavit in support of an application, the respondent filed a counter affidavit which is disputing the facts deponed by the advocate for the applicant including that of paragraph 7, 8 and 9. 3 Hearing was commenced by way of written submission, and credit to the parties for their amenability to scheduling order as all documents were filed within time. Moving straight to the point at issue, first, the applicant prayed to adopt his affidavit to form part of submission. Going forward, the advocate for the applicant averred that, as deponed under paragraph 7 of the applicant's affidavit, on the day the matter was fixed for hearing, advocate who was assigned by the applicant was serious sick and was hospitalised at Medway Polyclinic and he was further given three days exemption from duty until he become stable. On that note, he therefore submitted further that, time started to run from 30th September, 2023 and it ended on 2nd October, 2023. As a result, the advocate was unable to attend the court on 2nd October, 2023. Additionally, the applicant submitted that, due to such unforeseen event, advocate Meshack Majaga Dede (advocate for applicant) communicated with advocate Godfrey Wasonga, advocate for the respondent, asking him to notify the court on such event, but he failed to do so. Thus, to support his evidence, he attached in paragraphs 6, 7, 8, 9, 10 of an affidavit in support of application, what I can believe to be, a copies of 4 communication print-out obtained after conversation with other advocates. He also cited case of Loshilu Karaine and Another v. Joseph Angeson Mushi and Another, Civil Appeal No. 534 of 2020 CAT (unreported) to strengthen his point of sickness among others. Thus, in this case it was held that: '!Sickness constitute an acceptable account and sufficient cause for granting an application so long there is proof to that effect." Moreover, it is the applicant's submission that, owing to the circumstance, it was impossible to send someone including the applicant because he was not living in Dodoma. To bolster his argument, he cited the case of D.N Bahram and Co. Ltd & Others v. Tanzania Postal Bank & Others (2006) 2 E.A where it was held: "In some cases that could be difficult. For example, engaging client could be difficult due to distance, being out o f reach or in some instance, clients consider themselves done, moment they have engaged and paid for an advocate to handle their case." 5 On the other hand, the respondent through his advocate Godfrey Wasonga filed a reply submission of which, in the first hand, he pointed out that the application was improperly lodged. In this point, the advocate raised that this application emerged as a result of dismissal order for want of prosecution of the Land Appeal No. 15 of 2023 in terms of Order XXXIX rule 17 (1) of the CPC. And thus, the only available remedy in such circumstance is to file an application for re-admission of the appeal and not to file an application for setting aside dismissal order under Order IX rule 6 and rule 9 (1) and section 95 of the CPC. He therefore pressed that, to set aside dismissal order which was made under Order XXXIX rule 17 (1) of the CPC invites a different procedure. In furtherance, with respect to the reason for non-appearance of the applicant and his advocate on the date the matter was fixed for hearing, learned advocate for the respondent disputed in his submission what was attested under paragraph 6 and 7 of the applicant's affidavit. And to that effect, he submitted further that, the annexures which are copies of printed out conversation are not authentic and its reliability has not been proved. He also contended that, reason of sickness set forth by the applicant's advocate has not been proved. The advocate disputed that the reason of 6 sickness was rather planted and not realistic as it appears in the annexure SEK 2 where it seems that advocate for the applicant was advised to look for sick sheet as ground for failure to appear on the date of hearing. In the end, the advocate for the respondent asked the court to dismiss the application with costs due to the applicant's failure to cite plausible evidence showing sufficient cause for non-appearance, when the matter was fixed for hearing on 2nd October, 2023. In my endeavour, going through the submissions, the issue for determination of the cout is whether or not the applicant has successfully raised a sufficient cause to deserve re-admission of this appeal. At this stage, before discussing the pertinent issue as per the application in hand, I will in nutshell touch on the issue raised by the respondent's advocate with respect to the enabling provision that, for being filed under Order IX rule 6 and rule 9 (1) and section 95 of the CPC, this application was filed on wrong footing. At first, I am alive that, if the court was improperly moved, then, the same would have no jurisdiction to entertain the matter. That was the position in many of the ancient decisions. Apparently, the position has 7 changed. For instance, in Harry Msamire Kitilya & Others vs Republic, (CriminalAppeal No. 498 of 2022) [2024] TZCA 388 (23 May 2024) it was held that: "The irregularities over citation o f inapplicable provision cannot render the application incompetent, instead it is curable by virtue o f the overriding objective principle under section 3A of the Appellate Jurisdiction Act, which was brought by the written laws (Miscellaneous Amendments) (No. 3) Act, No. 8 o f20218." Needless to say, couched from the above, though I can recognise the anomaly made by the applicant for citing inapplicable provision to this effect, I find the same is curable under oxygen principle and therefore the point raised is good-for-nothing. Now, moving forward to the pertinent issue, whether or not the applicant has raised a sufficient cause to merit re-admission of this appeal. To start with, I feel gratified to borrow the same authority cited by applicant from his submission, see for instance the case of Loshilu Karaine and 8 Another v. Joseph Angeson Mushi and Another, Civil Appeal No. 534 of 2020 CAT (unreporteaj, where it was stated: "It is settled law that, a party seeking to set aside an order dismissing a suit or application for want o fprosecution has to demonstrate sufficient cause or non-appearance when the suit or application was called for hearing." In further elaboration, the term sufficient cause has been defined through case law where it meant to embrace numerous situations. For example, in Flex Tumbo Kisima v. TTCL Limited and another, civil appeal No. 01 of 1997 [1997] TZCA 58 (24thFebruary, 1997, Tanzlii) it was held that: "It should be observed that the term "sufficient cause" should not be interpreted narrowly but it should be given a wide interpretation to encompass all reasons or causes which are outside the applicant's power to control or influence, resulting in the delay in taking any necessary step." Therefore, going through the application, it is clear that based on the evidence deponed in the affidavit in support of an application and the 9 submission made therewith, the only reason for non-appearance of the applicant when the matter was called on for hearing was due to the sickness of the applicant's advocate. In the affidavit in support of an application, the applicant's advocate averred in paragraph 7 that failure to attend the court was due to serious sickness which he had suffered as per the sick sheet (annexure SFK-3). However, the assertion was vehemently queried by the respondent and thus, he demanded proof of the same. In his submission, the respondent accused the applicant's advocate to have made up the medical treatment sheet, but in reality, he was not sick. On my side, having observed the medical sheet, it is clear that the same was issued to Meshack Majaga Dede (applicant's advocate) on 30th September, 2023, and he had been given three-day exemption from duty. In the circumstance, I have no genuine reason to be doubtful on the trustworthiness of the said medical sheet. Thus, in my view, the suspicion raised by the respondent's advocate in his submission with regard to reliability of the medical sheet accord no weight and it is hereby discarded. Thus, what follows is the question why the applicant was also absent and, on his part, he affords no reason to the court for his absence. In this point, the affidavit in support of the application is silent, which means, there 10 is no evidence which support the assertion why the applicant failed to appear when the application was set for hearing on 2nd October, 2023. Had he appeared, he could have informed the court on the excuse of his advocate. Notably, I am alive that, in his submission, the advocate for the applicant submitted that the applicant is living outside Dodoma hence, it was impracticable for him to attend. To cement that he cited the case of D.N Bahram and Co. Ltd & Others v. Tanzania Postal Bank & Others (supra). Although, this point was left untouched by the respondent, in my opinion, the assertion made by the applicant's advocate is unfounded because it is the submission at the bar. The fact was not deponed in the affidavit and thus, it accords no weight. In fact, the law has been very clear in the number of decisions that submissions are not evidence. See for example in Director of Public Prosecutions vs Josephat Joseph Mushi & Another (Criminal Appeal No.471 of 2019) [2023] TZCA 17536 (24 August 2023) it was held that: "Submissions o f the parties are not evidence and therefore failure to consider them cannot be equivalent to failure to hear the parties. We have heard in time without 11 number, that arguments and submissions by an advocate cannot be a substitute o f evidence, "[emphasis is mine] Therefore, couched from the above authority, I hold it with certainty that, there is no evidence presented to the court as to why the applicant failed to attend his case. Furthermore, the applicant's advocate raised the point that he made an effort to look for some advocate to hold on his brief including advocate Majaliwa Wiga and advocate Godfrey Sabato Wasonga, see paragraph 6, 7 and 8. Thus, to bolster his assertion, he annexed what I can call "a copies of purported telephone conversation printout" between himself and those other advocates. These copies of conversation printout have been strongly challenged by the advocate for the respondent. And in his submission, he avowed that, being electronic evidence, it simply lacks proof of reliability and authenticity, as I can put it in paraphrased form. In my view, I am certain that the conversation printout are the facts representing electronic evidence since they were retrieved from electronic device (say it mobile phone). Therefore, being electronic evidence, it was 12 supposed to comply with the requirements imposed under both, The Evidence Act and Electronic Transaction Act. For clarity, section 64A of the Evidence Act which provide for admissibility of electronic evidence is as hereunder: "64A (1) In any proceedings, electronic evidence shall be admissible. (2) The admissibility and weight o f electronic evidence shall be determined in the manner prescribed under section 18 o f the Electronic Transaction Act. (3) For the purpose o f this section, "electronic evidence" means any data or information stored in electronic form or electronic media or retrieved from a computer system, which can be presented as evidence." Whereas, on the other hand, section 18 of the Electronic Transaction Act provides that: "18. -(1) In any legal proceedings, nothing in the rules o f evidence shall apply so as to deny the admissibility o f data message on ground that it is a data message. (2) In determining admissibility and evidential weight of a data message, the following shall be considered- (a) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified; and (d) any other factor that may be relevant in assessing the weight of evidence. (3) The authenticity o f an electronic records system in which an electronic record is recorded or stored shall, in the absence o f evidence to the contrary, be presumed where- (a) there is evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was 14 not, the fact of its not operating properly did not affect the integrity of an electronic record and there are no other reasonable grounds on which to doubt the authenticity of the electronic records system; (b) it is established that the electronic record was recorded or stored by a part to the proceedings who is adverse in interest to the part seeking to introduce it; or (c) it is established that an electronic record was recorded or stored in the usual and ordinary course o f business by a person who is not a part to the proceedings and who did not record or store it under the control o f the part seeking to introduce the record. (4) For purposes o f determining whether an electronic record is admissible under this section; evidence may be presented in respect o f any set standard, procedure, usage or practice on how electronic records are to be recorded or stored, with regard to the type o f business or 15 endeavours that used, recorded or stored the electronic record and the nature and purpose o f the electronic record." Based from the above, and considering what the advocate for the applicant has stated in his affidavit in support of application, it is apparent that the requirements of section 64A of the Evidence Act and section 18 of the Electronic Transaction Act were overlooked. As the same was questioned by the respondent's advocate in his submission. That are, the aforesaid communication printouts are not know at which year they were made and printed out? From whose devices they were made? Who had retrieved the printouts from original device and how was it stored? In fact, all these question touches the issue of reliability and authenticity which ought to have been cleared. To that note, since those questions had not been cleared, then it is obvious that the evidential weight of these printout will be unsteady. That said, considering what I have demonstrated herein-above, the court was justified to dismiss the application for a want of prosecution. In the end, this application lacks merit and therefore, I dismiss it with costs. 16 Ordered accordingly. DATED at DODOMA this 1th day of July, 2024. This ruling delivered this 1st day of July, 2024 in the presence of the parties and the matter is dismissed with costs. S. H. HASSAN JUDGE 01/ 07/2024 17