fredrick boniphas kyando vs sophia fundikira 2022 tzhclandd 12686 25 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE LAND DIVISION)

AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 348 OF 2022 (Originating Bill of Cost No. 167/2021 before Deputy Registrar W. A. Hamza) FREDRICK BONIPHAS KYANDO.................................................... APPLICANT

VERSUS SOPHIA FUNDIKIRA............................................................. RESPONDENT

RULING 10 & 25th November,2022 L. HEMED, J. This application originates from Bill of Costs No. 167 of 2021 which was dismissed for want of prosecution on the 29th March, 2022 by Hon. W. A. Hamza, the Deputy Registrar. The applicant herein one FREDRICK BONIPHAS KYANDO who was the Applicant/Decree holder in the said Bill of Costs was aggrieved by the dismissal order, however, he could not seek for redress in time hence this application seeking for: "... an extension of time for the applicant to file an application for restoration to this Court of the Bill of Costs No. 167/2021 which was dismissed for want of prosecution...." The application was argued by way of oral submissions. The applicant was represented by Frank Michael, learned advocate, while the i Respondent enjoyed the service of Mr. Habibu Kassimu. Learned advocates. It was argued by the counsel for the applicant that in Land Case No. 145 of 2019 the applicant was represented by Mr. Mkilya Daudi, learned advocate who prepared and filed all the documents related to Taxation Cause No. 167/2021. It was submitted further that due to sickness and the nature of the case itself, the applicant was not able to appear in Court on all of the scheduled dates. He asserted that all he knew was that his advocate was handling everything. On the 4th May, 2022, he acquired the service of another lawyer and after he perused the Court file

related to Taxation cause No. 167/2021, he found out that the case had been dismissed for want of prosecution. He requested and obtained a copy of ruling on 17th May, 2022 and started looking for a lawyer who would help him. He stated that the delay to file an application for restoration was not occationed by negligence of the applicant because he was not aware of what was going on. 2 The learned advocate who was representing the applicant Mr. Frank Michael averred that this Court should grant the application because the reason for the delay was mainly caused by the negligence of the advocate who never attended the case without informing the applicant. He lamented that the applicant should not be punished by the negligence of the advocate. He referred the Court to the decision of the Court of Appeal of Tanzania in the case of Kimbona Charles vs. Elizabeth Charles, Civil Application No. 529/217/2019 to cement his point that the applicant should not be punished for the negligence of his advocate. In reply submission, Mr. Habibu Kassim, stated that the applicant did not do anything from 29th June, 2022 and has not accounted for each day of the delay. He cited the case of Omari Shabani S. Nyambu vs. Dodoma Municipality Council and Others, Civil Application No. 125/3/2020 (CAT) to support his arguments. As to the negligence of the former advocate of the applicant Mr. Kassim was of

the view that negligence or omission of the advocate does not amount to good cause. He cited the case of Lin Han Yun and Another vs. Lucy Tresea Kristensen, Civil Appeal No. 219 of 2019 (CAT) to cement his point. p. 3 Having heard the submission from both parties, let me turn to decide whether sufficient and good cause has been shown for this Court to exercise its discretion power to grant extension of time to the applicant to apply for restoration of the Bill of costs No. 167/2021. The proceedings of the Bill of Costs No. 167/2021 show that it was dismissed on 29/03/2022 for want of prosecution. After the lapse of three months, that is on 29th June, 2021, the present application was lodged. In the affidavit deponed to support the application, the deponent stated that he could not make follow up of his case due to sickness and that he left everything to his advocate. However, in his affidavit he did not annex thereto a medical report at least to prove that the Applicant was truly sick. In the absence of the medical report it is proper to hold that the statement in the affidavit stating that the applicant was sick is a hollow assertion. The applicant kept quite for three months without doing anything as to the dismissal order of the Bill of Costs. The applicant has not accounted for all the period of delay of three months (90 days) time contrary to the principles set forth by

the Court of Appeal of Tanzania in the case of Lyamuya Construction Company Ltd vs. Board of Trustees of 4 Young Women and Another, Civil Application no. 2 of 2010 (unreported) that: " a). The applicant must account for all the period of delay. b). The delay should not be inordinate. c). The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. In the present case, apart from failure to account for all period of delay the applicants failure to lodge the application to set aside the dismissal order for more than 90 days, in my opinion is disproportionately large. This implies that the applicant was negligence, sloppy and not diligent enough in prosecuting his Bill of Costs. In the submissions made by Mr. Michael to support the application, he has leveled blames to the previous advocate that he was negligent in attending the matter and that the applicant should not be punished for the negligence of the advocate. The Court of Appeal in Yusufu Same and Another vs. Hadija Yusuph, Civil Appeal No. 1 of 2022 unreported held that: (x 5 "Generally speaking, an error made by an advocate through negligence or lack of diligence is not sufficient cause for extension of time." It is my view that even if the applicant would be truthful in his allegations against his advocate's inaction, negligence or omission,

which generally, does not amount to a good cause, the applicant shares the blame for not following up his matter. The applicant cannot cast the whole blame on his advocate. The Court of Appeal of Tanzania in Lin Han Yun and Another vs. Lucy Treseas Kristensen, Civil Appeal No. 219 of 2019 had this to say:- "... we think that a party to a case who engages the service of an advocate, has a duty to closely follow up the progress and status of his case. A party who dumps his case to an advocate and does not make any follow ups of his case, cannot be heard complaining that he did not know and was not informed by his advocate the progress and status of his case". In the present case, the applicant seems to have dumped the case to his advocate and he did not make any follow up of his case until when it was dismissed. Even after the dismissal, the applicant and his advocate delayed for more than 90 days without seeking for redress. It is my firm 6 opinion that the applicant in this case cannot exonerate himself from blames of deserting his Bill of Cost. He is totally barred from raising complaints of negligence against his advocate as a ground for extension of time to apply restoration of his dismissed Bill of costs. In view of the above analysis, I find no merits in the application. The applicant failed to show good cause for this Court to extend time to apply to set aside the dismissal order of the Bill of Costs No. 167/2021. The application is hereby dismissed with costs. DATED at DAR ES SALAAM this-25th day of November, 2022. L. HEMX j4 JUDGE COURT: Ruling delivered this 25th November, 2022 in the presence of Mr. Frank Michael, advocate of the Applicant and Mr. Habibu Kassimu and Doreen Kalugira, advocates of Respondent. Right of Appeal fully explained.

JUDGE 25/11/2022 7