Ruling Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI MISCELLANEOUS CIVIL APPLICATION NO. 21152 OF 2024 (Arising from Miscellaneous Civil Application No. 16020 of 2024, Originating from Land Application No. 04 of 2015 from Manyara District Land and housing tribunal of Babati at Babati in Land Appeal No. 20 of 2022 of the High Court of Tanzania-Manyara sub registry at Babati) HALIMA DAI ……………………………………………………………APPLICANT

VERSUS LONINGO LUCAS………………..….…………………………1ST RESPONDENT MESHACK PAULO…………….…………………………...…..2ND RESPONDENT

RULING 13th& 18th December, 2024 Kahyoza, J. This is the ruling in respect of an application seeking to set aside the dismissal order. Halima Dai filed an application for extension of time to apply for review. She failed to appear on the date the application was set done for hearing. The court dismissed the application. Dissatisfied Halima Dai applied to set aside the dismissal order. Before hearing the application, the respondents raised two points of preliminary objection that- (i) That, the miscellaneous Civil Application hereinabove is incompetently filed in this honourable court as it is contrary to Order IX Rule 3 of the Civil Procedure Code, Cap 33 (revised 1 edition 2019). In effect, the Respondent shall seek for an order striking out of the same with costs. (ii) That, the aforesaid miscellaneous civil application is bad at law as the Jurar of attestation contravenes sections 5 and 10 of the Oaths and statutory Declaration Act, Cap.34 Revised edition 2019]. In the outcome, thereof the Advocate for the respondent shall humbly pray for an order striking out the same with costs. On the hearing date, the respondent did not expound the preliminary objection. On the applicant’s part, the applicant’s advocate submitted that the preliminary objections had no merit. I had time to reflect on the two limbs of the preliminary objection the respondent raised, like Mr. Mlingi, the

applicant’s advocate, I see no merit, in the preliminary objection raised. Before this Court is an application seeking to restore the dismissed application. Order IX rule 3 of the CPC refers to a situation where suit is dismissed. No suit was dismissed in the present case. Thus, Order IX rule 3 is not applicable. For clarity’s sake, I reproduce the Rule 3 of CPC “Where a suit is dismissed under rule 2, the Plaintiff may (Subject to the law of limitation) bring a fresh suit, or he may apply to set aside the dismissal order and shall appoint a day for proceeding with the suit”. 2 As to the second limb of the preliminary objection which is to affect that the jurat of attestation is defect has no merit. I examined the jurat of attestation and found that the commissions for oaths, indicated that no one introduced to deponent to him by crossing that part. It implies that the commissioner for oaths knew the deponent personally. The jurat contains the date, the only information missing is the place where the affidavit was sworn. I am alive of the position of law that, omission of the place where the affidavit was sworn used to amount a fatal defect to the affidavit, thus, rendering the application incompetent. The Court of Appeal in the case of D. B. Shapriya & Co. Ltd V. Bish International B.V Civil Application No. 53/2022 CAT-(DSM) stated that- “I have surveyed the affidavit of

Kishor Shapriaya and it is glaringly evidence that the jurat does not disclose the place where the affidavit was made but as I have said above the requirement to be contained in an affidavit have all to be observed to make it authorities. Here that has not been the case. It is not for the deponent to pick and choose what is and what is not important.” I am of the firm view that the awake of this principle of overriding objection failure to indicate the place in the jurat of attestation cannot render 3 the jurat incurable defect and as result affect the affidavit. I am of the view that the defect is not fatal and does not vitiate the affidavit. In the end, I find the preliminary objection without merit and proceed to determine the application on merit. The applicant’s advocate contended that he was absent as he was assigned a dock brief at the government expenses and summoned to appear before Hon. Mirindo, J. on that day. He was defending the accused persons in murder case R. V. Sebastian Athuman and others, No. 13261/2024 High Court of Tanzania Manyara sub-registry. Loningo Lucas and Meshack Paulo, the respondents opposed the application contenting that the applicant and her advocate knew that the matter was fixed for hearing but they decided not to attend to Court. It is true that the applicant’s advocate knew that he had a matter before two courts but decided to appear before

only one of the courts. He was not diligent. He ought to have found ways of informing this Court that he was appearing before the criminal court assigned a dock brief. It is common knowledge that advocates are assigned dock briefs by Deputy Registrars at the government expense and that such cases are given priority. 4 Advocates take dock briefs as an offer of their services to the society, as they are paid token fees. The amount paid is not congruent to services they render. For that reason, and to encourage advocates to willingly take up that matter, I find the advocate’s absence justifiable and sufficient reason for his non-appearance. I, therefore, find that the advocate has adduced sufficient reason for his non-appearance. I set aside the dismissal order and restore Misc. Civil Application 202407061000016020. I make no orders as to costs as the respondents are not blame for the applicant’s and her advocate’s non- appearance, which was the reason for dismissal. I order accordingly. Dated at Babati this 18th day of December, 2024 John R. Kahyoza Judge Court: Judgment delivered in the absence of the parties as they could no connect to the virtual court. Mr. Damas (RMA) present. John R. Kahyoza, J. 18/12/2024 5