ibrahim mhaku vs the registered trustees of ifakara health institute 2023 tzhc 19508 31 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SU-REGISTRY) AT MOROGORO MISC. LAND APPLICATION NO. 22 OF 2023 (Originating from the Order ofthe High Court of Tanzania, Morogoro Sub-Registry in Misc. Land Appeai No. 59 of2023 dated 13/03/2023) .APPLICANT IBRAHIM MHAKU.. VERSUS THE REGISTERED TRUSTEES OF IFAKARA HEALTH RESPONDENT INSTITUTE RULING 24*^&3P*July, 2023 CHABA,3; The applicant, Ibrahim Mhaku has presented before this Court the instant appiication inviting the Court to vacate its previous order made on 13"^ day of March, 2023 and restore Misc. Land Appeal No. 59 of 2022 which was dismissed for want of prosecution. The dismissal order was due to failure by the applicant and his advocate to enter appearance when the matter was called on for hearing. The application has been preferred by way of chamber summons made under Order XXXIX, Rule 19 and section 95 of the Civil Procedure Code [CAP. 33 R. E, 2019] and supported by an affidavit deposed by Mr. Page 1 of 8 Othman Kalulu, learned advocate dully instructed to proceed with the matter accordingly. Submitting for the application, the learned counsel for the applicant firstly and foremost adopted his affidavit in support of application to form part of his submission and clearly stated that his non-appearance was beyond his control. In his submission, he argued that he failed to appear on the date set for hearing because he was by then at his home village in Tabora Region. He averred that, in Tabora Region he went to take care of his elder brother who was serious sick. He further submitted that, unfortunately, his beloved brother passed away on 10^^ March, 2023. According to the affidavit, he travelled from Dar Es Salaam Region to Tabora Region on 15^^ February, 2023 and returned back to Dar Es Salaam after three days of the burial services of his late brother. He went on stating that. Misc. Land Appeal No. 59 of 2022 was called on for hearing on 13/03/2023 while his brother died on 10/03/2023 and by then was still in Tabora Region. He submitted further that, while in Tabora Region, he encountered network problems which forced him to search for the network upon climbing on the hills so as to get the requisite network for communication with his client who was making a follow up. He asserted Page 2 of 9 that, he was later informed by the respondent's counsel that, Misc. Land Appeal No. 59 of 2023 was dismissed on 13/03/2023. To buttress his contention, the learned advocate accompanied along with his affidavit, bus ticket showing that he travelled from Dar Es Salaam to Tabora and vice- versa as it was exhibited in an annexture IM-3, a passenger ticket No. 33103 seat No. D-1 dated on 17^^ February, 2023. Lastly, Mr. Othman submitted that, since the applicant has an arguable case and on the basis of interest of justice, he prayed the instant application be granted on the ground that the applicant family's land was sold by a person who was not the administrator of the deceased's estate. He submitted further that, in the impugned judgment which the applicant intends to challenge in this Court, the applicant was sued in his personal capacity while he was a lawful administrator of estate of the late his father one Adbul R. Mhaku. To fortify his argument, the learned advocate referred this Court to the decision of the Court of Appeal of Tanzania in the case of MALIETHA BAGO Vs. ADAM MTENGU, CIVIL APPEAL NO. 485 OF 2022, CAT sitting at Kigoma (unreported) which emphasized that an administrator of the deceased's estate should not be sued on his personal capacity. Page 3 of 9 On the other hand, the respondent through the legal services of Mr. BagenI Elijah, learned advocate opposed the application by filing a counter affidavit and the written submission in reply to submission in chief. Elaborating his submission, Mr. Bageni highlighted that, on 13/03/2023 neither Mr. Othman nor his client, Ibrahim Mhaku entered appearance. In this regard, Mr. Bageni was of the opinion that, this Court was right and justified to dismiss the case (Misc. Land Appeal No. 59 of 2022) for want of prosecution. Mr. Bageni stressed that looking at the argument put forward by the learned advocate for the applicant, it is clear that the counsel for the applicant totally failed to furnish sufficient reasons to persuade the Court and warrant it to restore the said Misc. Land Appeal No. 59 of 2022 after being dismissed by the Court. Mr. Bageni averred further that, the counsel for the applicant failed even to mention the names of his late brother who he claimed before this court that he was seriously sick before he met his death. More-over, Mr. Bageni stated that, since the counsel for the applicant also failed to inform the Court that sometimes in between could travel to Tabora Region to attend his brother who was sick, the Court should ignore this statement and dismiss the application. To support and strengthen his contention, he Page 4 of9 \ cited the decision of this Court (Masaju, J.) in the case of MAROO MACHAGE MARO Vs. AGUSTINO KATIKIRO AND ANOTHER, DC. CIVIL APPEAL NO. 18 OF 2019, HCT at Dodoma (unreported) where at page 11-12, the Court insisted the need for punctuality of an advocate before the Court. To end up his submission, Mr. Bageni accentuated that generally speaking, the applicant and his learned advocate have not submitted so far, and that no reasons have been advanced to convince this Court to grant the prayers sought in the chamber summons. He therefore prayed this Court to dismiss the application in its entirety with costs. I have considered the rival submissions advanced by both parties and parties' pleadings in line with the orders sought by the applicant. In my view, the issue for consideration and determination is, whether or not the applicant's advocate has adduced sufficient reasons for his non-appearance before this Court on 13/03/2023 when the matter was called on for hearing. As hinted above, the application has been preferred by the applicant under Order XXXIX, Rule 19 and section 95 of the Civil Procedure Code Page 5 of 9 (supra) and it is supported by an affidavit deposed by Mr. Othman Kalulu, learned advocate. The law provides that: "Where an appeal is dismissed under sub-ruie (2), of ruie 11 or ruie 17 or ruie 18, the appellant may apply to the Court for the re-admission ofthe appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shaii re-admit the appeal on such terms as to costs or otherwise as it thinks fit". That is the position of the law. However, as gleaned from the affidavit in support of the instant application and submission advanced by the learned counsel for the applicant, the main reason advanced and relied upon by the counsel for applicant for his non-appearance before this Court on 13/03/2023, when the matter was called on for hearing, is that on 15^^^ February, 2023 he travelled from Dar Es Salaam Region to Tabora Region to see his sick brother where he stayed in the Region until on 13/03/2023. Another reason narrated by the counsel for the applicant which is so connected with the above reason is that, while in Tabora Region, he was Page 6 of9 encountered with the network problems and it became too hard to communicate with his client Ibrahim Mhaku who was following and making follow up in respect of his case before this Court. With the above explanations, I find the reasons put forward by the counsel for the applicant are uncalled for, hold no water and above all cannot be entertained by this Court. I have viewed and carefully examined the bus ticket (herein annexure IM-3) relied upon by the counsel for the applicant and found that the same was issued on 17^^ day of February, 2023 and the date of traveling exhibited therein shows that, on 18^^ day of February, 2023 he travelled from Dar es Salaam region to Tabora region and not on 15^^ day of February, 2023 as it was deposed by Mr. Othman Kalulu in his affidavit and insisted in the written submission in chief supporting the applicant's application. This contradictory averment reminds me of an old adage maxim which states that, "he who comes into equity must come with dean hands". Essentially, this doctrine requires the Court to deny equitable relief to a party who has violated good faith with respect to the subject of the claim. Again, it is trite law that, travelling or absenteeism without a formal notice to the Court is not a good cause or Page 7 of 9 cannot amount to sufficient reason to restore the matter dismissed for non- appearance. In the upshot, and considering what I have endeavoured to demonstrate herein above, it is my holding that, this application is wanting. Accordingly, I proceed to dismiss it with costs. I so order. DATED at MOROGORO this 31^ day of July, 2023. M. J. COU/?> G O JUDGE "F •2: 1/07/2023 Court: Ruling delivered under my hand and the Seal of the Court in Chamber's this 31^ day of July, 2023 in the presence of Ms. Sophia Omary, Learned Counsel holding brief for Mr. Othman Kalulu, Learned Counsel for the Applicant and in absence of the Respondent. E. A. LUKUMAY AG. DEPUTY REGISTRAR 31/07/2023 Page 8 of 9 Court: Right to Appeal to the parties fully explained, E. A. LUKUMAY Uj nA AG. DEPUTY REGISTRAR 31/07/2023 Page 9 of 9