HASHIMU RUNGWE MISC LAND APPLICATION 30248 OF 2024

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS LAND APPLICATION NO. 000030248 OF 2024 HASHIM RUNGWE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ZUBEDA AHMED LAKHA .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, Date: 12 & 12/12/2024 In this application, the applicant is pursuing for the orders that: 1. That this honourble Court may be pleased to set aside the dismissal order entered on the 22nd day of November 2024 and restore the suit. 2. Costs of the application be provided for. 3. Any other relief that this honourable Court may deem fit and just to grant. The chamber summons is brought under Order IX Rule 6 (1) of the Civil Procedure Code, Cap. 33 R.E. 2019. It is supported by the affidavit of the applicant in which he averred that his advocates were indisposed one Mr. Mollel was suffering from malaria and attached a letter from the hospital to that effect and another advocate, Msafiri Mabera, has travelled to Russia and attached a Visa. Only Mr. Mtaki filed a counter affidavit disputing the allegations and saying they are insufficient to warrant setting aside the dismissal order. When the application was called on for hearing, the applicant was represented by Messrs. Mohamed Kioza and Edward Mollel, learned counsel. The 1st and 2nd respondents were respresented by Messrs. Mtaki and Method Kabuguzi, learned counsel. The 3rd respondent was represented by Mr. Ignatus Kagashe, learned counsel while the 4th, 5th and 6th respondents were represented by Mr. Geoge Kalenda, learned Senior State Attorney. I am thankful for their submissions. Page. 1 In support of the application, Mr. Kioza adopted the affidavit in support of the application and maintained thatthe dismissed case is Land Case No. 33 of 2023 in this Court. He prayed the Court grants the application. In reply submission, Mr. Kalenda was allowed to submit on legal points only under the authority of Harith Rashid Shomvi v. Aziza Juma Zomboko, Civil Application No. 496/01/2020, CAT (unreported). He contended that 3rd paragraph and paragraph 4 contain hearsay evidence because the mentioned persons therein did not swear an affidavit of Memory and Kagashe holding brief, could not hold brief because is an adverse party. He parroted Sabena Technics Dar Ltd v Michael Luwunzu, Civil Application No. 451/18 of 2020 at page 10 and 11. Mr. Kalenda added that digital record, it is hearsay evidence. He emphasized tat the one who is sick has to prove sickness, there should be medical proof which is authentic. He exemplified Martin Nicas Manya v. Stephen Gati Mwita & Another, Misc. Land Case Application No. 224 of 2021 HC at page 6. What is attached, elaborated Mr. Kalenda is a letter and neither medical report nor an affidavit of the one who treated the patient. Mr. Kalenda cited Dianarose Sparepartes Ltd v. Commissioner General Tanzania Revenue Authority, Civil Application No. 245/202 of 2021. At page 9 and 10. There is also a point of law in respect of Msafiri Mabela saying he is in Russia. Mr. Kalenda pressed that proof of travelling is boarding pass. The visa can be fabricated. So, it is hearsay. Mr. Kalenda insisted that the grounds advanced for the application to set aside the dismissal order are insufficient under Order IX Rule 6(1) of the CPC. He also underscored that there must be sufficient cause warranting grant of setting aside the dismissal order. He recited Martin case (supra) and prayed the application be dismissed with costs. Mr. Mtaki, submitting in opposition of the application clearly stated that they object the application. He intimated that they filed a counter-affidavit, and adopted the same as part of their submission. He also supported that there are hearsay evidences in the affidavit at paragraph 4 and 5 of the affidavit in support, thus, the authorities cited by Mr. Kalenda are relevant. He prayed the application be dismissed with costs for lacking sufficient cause. On his side, Mr. Kagashe intimated that he does not object the application, on the balance of probability, and application of substantial justice, the application may be granted. In rejoinder submission, Mr. Kioza stressed the application be granted so that justice is done to both parties. Page. 2 I have closely considered the application and the submissions for and against the application. In application of this nature, I am guided by the decision of the Court of Appeal in Sungura v. Peter Msechu, Civil Appeal No. 24 of 2017, CAT where it was stated that: “In an application to set aside the order dismissing the suit for non-appearance, the important question is whether the case for the applicant is soundly maintainable and meritorious, but whether the reasons furnished are sufficient to justify the applicant’s non-appearance on the date the suit was dismissed.” Now, I, given the evidence that is available in this application, I find that the application is merited. Both applicant’s counsel were indisposed, one sick (there is a letter attached to the application) and another was away from the Country (copy of visa attached). The attempt by Mr. Kalenda to discredit those documents is unmerited because there is neither counter-affidavit nor any evidence that the documents so attached are forgery. In that regard, the case laws cited by Mr. Kalenda are distinguishable and inapplicable in the circumstances of this application. In the premises, even if the applicant appeared, the hearing of the case would not proceed because he is entitled to representation by counsel. All things considered, the application is granted. The dismissal order in Land Case No. 33 of 2023 is set aside. I make no order as to costs because the dismissal of the land case was caused by failure of the applicant to attach the necessary documents to the letter seeking adjournment and the counsel who held brief, did not bring such documents. I so order. Dated at KIGOMA this 12th of December 2024 . J. NKWABI JUDGE OF THE HIGH COURT Page. 3