hsk safaris limited another vs mr alexander pastory mnyeti 2 others 2023 tzhc 22401 7 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI MISC. CIVIL APPLICATION NO. 32 OF 2023 (Originating from Civil Case No. 2 of2022 in the High Court of Tanzania - Manyara Sub Registry) HSK SAFARIS LIMITED.............................................. 1st APPLICANT DR. HAMISI KIBOLA................................................... 2nd APPLICANT VERSUS MR. ALEXANDER PASTORY MNYETI.................................................... 1stRESPONDE BELINDA SUMARI................................................................................ 2ndRESPONDE SALEHE SALUM AL AMRY..................................................................... 3rdRESPOND AND THE MINISTER OF NATURAL RESOURCES AND TOURISM........................................... 1st THIRD PARTY THE ATTORNEY GENERAL............................................. 2nd THIRD PARTY RULING 3&h & 7thNovember 2023 Kahyoza, J.: HSK Safaris Limited and Dr. Hamisi Kibola (the 1st and 2nd Applicant(s), respectively) sued Mr. Alexander Pastory Mnyeti, Belinda i Sumari and Salehe Salum Al Amry (the 1st, 2nd and 3rd respondent(s), respectively) before this court, via Civil Case No. 2 of 2022, claiming (USD) 670,280.40/= and TZS 13,000,000/= for specific damages on Loss of Business, Pecuniary penalties, Unwarranted travel costs and Destruction of property as a result of infringements of rights on Hunting Camp business. Unfortunately, during the pendency of the suit, this Court dismissed the suit for Plaintiffs' non-appearance. Aggrieved, Applicants instituted the current application seeking for an order to set aside the dismissal order and restore Civil Case No. 2 of 2022. In his affidavit in support of this application, Mr. Edmund Rweyemamu Ngemela, Advocate for the Applicants deponed that:- "3. That, on 1 Cfh day of October, 2023 the case was fixed for directives, pursuant to 1st Respondent's application to join the 3rd parties to the Applicant's suit... 4. That, I the deponent, together with 2nd Applicant to this application who is also the Director of the 1st Applicant and Peter Metty Mwita who was driving Motor vehicle with Registration Number T340BFH started our journey from Arusha to Babati to attend court proceedings. 5. That, while we were at Simangore Hill near near Makuyuni on the Highway to Babati, we faced a situation of a flat tyre. 2 6. That, we managed to replace the flay tyre which took us about 30 minutes and proceeded with safari to Babati where we arrived at the High Court at Babati around 08:40 AM. 11. That, while waiting to be called, we were surprised to see Advocate for the Defendant one Ndonjekwa and lawyer for the Solicitor General one Mseti coming out of the Hon. Judges Chamber. And greeted me and informed me that the case had been dismissed due to plaintiff's absence." The same gist, was reflected in the supporting affidavit(s) of Dr. Hamisi Said Kibola and that of Peter Metty Mwita. Even though the respondents were served with the Chamber summons and signed thereto, they neither filed counter affidavit(s) nor appeared on the hearing of this application. Mr. Ngemela submitted and expounded what was deponed that the flat tyre incident, that took them 30 minutes to fix, was beyond their power and control, they did their best, and arrived at Babati at 08:40 am. They waited to be called but it was in vain, only to find that their case had already been dismissed. There is one issue for determination, whether the applicants have adduced sufficient reason(S) for their non-appearance. 3 The record bears testimony, that, the last order, before the dismissal order, that is on 19/09/2023, was that:- "1. The record shows that the 3rd parties have filed Written Statement of defence. I order parties to appear on the 10/10/2023 when I will give direction in accordance with Order I, Rule 18 of the Civil Procedure Code, [Cap 33 R.E 2019]. They will appear at 08:30 Am. 2. We shall also conduct 1st Pre-Trial Conference. ” For the sake of clarity, in the impugned order dated 10/10/2023 it was ordered that: - "This matter was coming for 1st Pre- Trial Conference and the Plaintiffs are absent. The suit is dismissed under Order VIII, Rule 20(1) (a) of the Civil Procedure Code, [Cap 33 R.E 2019] with Costs." It is upon this narrative that the applicants have deployed the machinery of Order VIII, Rule 20(2) of the Civil Procedure Code to remedy the mischief. I had a cursory review of the records and the totality of the affidavits in support of the application, and I have come to the settled premise that, since the last order before the dismissal, parties were directed to attend on 10/10/2023 at 08:30 am, and the applicants deponed to have arrived at 4 court premises at 08:40 am, then it goes without saying that they arrived late, for about 10 minutes outside the time scheduled. In the circumstances, it was obvious that the applicants could not be able to hear their names and case file being called to enter Judge's chambers, as they were late to attend proceedings. On the same footing, since the respondents did not counter what was deponed by the applicants, it is as good as admitting the facts in the affidavits. Thus, the happening of flat tyre incident, was not in the power and control of the applicants. Again, after being aware of the dismissal order, they promptly requested for the necessary documents (that is, on the same day, 10/10/2023), and within two days as from the dismissal order, they were able to institute the current application. It shows that the applicants are determined to revive their dismissed case. I find that the applicants have adduced sufficient reason that they were absent due to reasons beyond their power and control. They have adduced sufficient reasons for their non-appearance. I therefore find it just and hereby set aside the dismissal order dated 10/10/2023 and restore Civil Case No. 02/2022. 5 Before I retire, I wish to put the records straight on the issue of the status of the pendency of the restored suit. The 1st Pre- Trial Conference was indeed conducted on the 24/04/2023, thus, the restored suit shall proceed from that stage. I make no order as to costs. Court: Ruling delivered in the presence of Mr. Ndonjekwa, the first respondent's advocate, Mr. Gabriel Rwahira advocate holding Mr. Ngemela advocate's brief for the applicants, and the applicants in person. The second and third respondents are absent. Ms. Fatina Haymale (RMA) present. J. R. Kahyoza Judge 07/11/2023 6