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IN THE HIGH COURT OF THE UNITEO REPUBLIC OF TANZANIA . , W (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 26782 OF 2024 (Originating from Land Case No. 6 of2023) HASSAN ABDALLAH KITIGI.....................................Ist APPLICANT MB UWESU ABDALLAH MOHAMED............................... 2nd APPLICANT SELEMAN JUMA SALAMBA...................................... 3rd APPLICANT VERSUS ' ' • ’+* TEMEKE MUNICIPAL COUNCIL..............................1st RESPONDENT THE ATTORNEY GENERAL.......... ......2nd RESPONDENT RULING l&h April & 16h May, 2024 L, HEMED, J. This matter is rooted from Land Case No. 6 of 2023 in which the applicants herein were the plaintiff while the respondents hefeiWef^alsu ;' the defendants. The said land case was called for hearing on 23rd November 2023 after several adjournments due to the none .appearance of^ the applicants' advocate. It should be noted that prior to the fateful date, . . ...... '•■■p,. the applicants were directed by the court to get prepared to proceed their own on the 23rd November 2023 in case their advocate would not appear for any reason. However, on the 23rd November,2023 the applicants appeared in person and after being ordered by the court to proceed on their own, they refused. Following such refusal, the court opted to dismiss the suit for want of prosecution. The applicants were aggrieved by the dismissal order hence the instantaneous application made under section 95 and Order the Civil Procedure Code, [Cap.33 RE 2019]. In the chamber summons used to move this court entertain the application there was this only one prayer, thus: "That the Hon. Court may be pleased to set aside dismissal order of Land Case No. 6 of 2023 dated 23fd November 2023." Having been challenged by the respondents, it was set for hearing on 18th April 2024. The matter could not be heard on the particular date as the court suo motto, raised two a point in limine litisthus:- 2 1. The relevance of Order IX Rule 6(1) of the Civil Procedure Code, [Cap.33 RE 2019] to the application at hand. 2. Whether the Court is clothed with jurisdiction to set aside it dismissal order made in the presence of the plaintiffs after having refused to proceed on their own. The Court directed the learned counsel for both parties to address the two points by way of written submissions. Ms. Debora Mcharo, learned State Attorney represented the respondents while the enjoyed the service of Mr. Juma Nassoro, learned advocate. Submissions were filed as per the schedule directed by the court. I have gone through the submissions filed by the learned counsel for both parties and found that they have supported the points raised by the court. Mr. Nassoro stated to have realized that the court has no the requisite jurisdiction to set aside the dismissal order. Nevertheless, he prayed for leave to withdraw the application so that he may apply'^for®5^^ review. f ...,.... In her submission in respect to the relevance of Order IX Rule 6(1) of the CPC, Ms. Mcharo was of the view that the said provision is irrelevant to the instant application. In her opinion, the cited provision is relevant when the application is dismissed because of non-appearance of the Plaintiff. She insisted that the said provision is not relevant to the matter at hand because the impugned dismissal order was made in the presence of the Plaintiffs/applicants following their refusal to proceed after hawg^fi4g^^a^M so. With regard to the point of jurisdiction of this court to entertain the application at hand, she pointed out that since the matter was dismissed in the presence of the applicants/plaintiffs, the court is functus officio to grant the order sought. She glued her arguments by the decision of the Court of Appeal of Tanzania in Barclays Bank (T) Ltd vs. Tanzania Pharmaceuticals Industries Ltd & 3 others, Civil Applifi^jptes^B No.231/16 of 2019. Having gone through the submissions made by both learned counsel, let me respond to the prayer made by Mr. Nassoro, advocate of the applicants to withdraw the application. In my view, once the point of law 4 ..1 y .... vfdSB has been raised, a party who is affected by it has only two options; to argue it and wait for ruling; or concede to it and face the consequences?^^® other words, the party against whom the point of law has been raised, has no room to withdraw his/her matter as by doing so will amount to circumventing the point raised. Back to the point of the relevance of Order IX Rule 6(1) of the CPC to ■".......................... ■ ' •- the instant matter. I have revisited the said provision and found it stating thus:- ■■ ■ ......... "6.-/7J Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside and, if he satisfies the court that there was sufficient cause for his non- appearance when the suit was caned on tor hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit."[Emphasis added] I am at one with Ms. Mcharo, that the above provision applies only in ■ setting aside dismissal order made following the non-appearance of the Plaintiff when the suit is called for hearing. In the present case. Land Case No. 6 of 2023 was dismissed for want of prosecution in the presence of the plaintiffs/applicants after having refused to heed to the order of the court to proceed on their own. Therefore, since the plaintiffs were present when the order was made, then Order IX Rule 6(1) of the Civil Procedure Code becomes irrelevant. ■■< i--Am* Turning to the point of jurisdiction of this court to entertain the application at hand, both counsel have supported it. I totally agree with them on the reason that the order to dismiss the suit was made in the presence of all parties. The reason for dismissal was the refusal of the plaintiffs to proceed even after being ordered so. In the circumstance of this case, the doctrine of functus officio applies. In Bibi Kisoko Medard v. Minister for Lands Housing and Urban Developmenti5«aild»«®® Another [1983] TLR 250, the court had this to say as regard the doctrine of functus officio'.- "A matter of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus^^ officio." 6 C' A In the present matter the decision was made in the presence'of parties and was made known to them on the same day. This being the case, the hands of the court that made the impugned order are tightly tied ——— up to set it aside. In other words, it is functus officio and falls short of jurisdiction to entertain the application to set aside the dismissal order. ... In the final analysis, I sustain the points raised suo motto and proceed to strike out the entire application. The fact that the points were raised by the court, each party to bear its own costs. Order accordingly. * ' DATED at DAR ES SALAAM this 16th May, 2024. THEMED JUDGE .. .... .:. 7