JOSEPH DAMAS MALYA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA MISC. CIVIL APPLICATION NO. 23715 OF 2024 (Arising from High Court dismissal order of P.C Civil Appeal No. 28 of 2023 dated 26th July, 2024) JOSEPH DAMAS MALIYA……………………………..……………………….APPLICANT VERSUS JOSEPH KILAMULAMU……..…..…………………………………………..RESPONDENT RULING Date of Last Order: 14/11/2024 Date of Ruling: 14/02/2025 E.E. KAKOLAKI, J. The applicant herein has preferred this application seeking Court’s indulgence to set aside the dismissal order entered by the Court on 26th July, 2024, against his appeal in PC Civil Appeal No. 23 of 2023 for want of prosecution. The application is preferred under the provisions of Rule 17 of the Civil Procedure (Appeals in Proceedings Originating from Primary Court) Rules GN No. 312 of 1964, section 2(3) of the Judicature and Application of Laws Act, CAP 358 and section 95 of the Civil Procedure Code CAP 33, R.E. 2019 supported by the affidavit 1 duly sworn by Joseph Damas Maliya, the applicant herein. It is vehemently contested by the respondent who filed the counter affidavit to that effect. Briefly on 26th July, 2024, the applicant had his appeal in PC Civil Appeal No. 28 of 2023, dismissed for want of prosecution following his advocate’s failure to file written submissions in support of the appeal within the stipulated time frame as ordered by the court, instead filed them outside the prescribed time and without court’s permission. It is from that dismissal order this application is preferred by the applicant who is mainly advancing two grounds in his affidavit that prevented him from filing the said written submissions timely as ordered by the Court. One that, he was not aware of his advocates’ failure to comply with court’s order in filing the said submissions until 03/09/2024 when served with summons for an application for taxation of the costs in respect of the dismissed appeal in PC. Civil Appeal No. 28 of 2023 which he believed was not yet decided, only to learn then that the same was dismissed for want of prosecution since 26/07/2024. Secondly that, his advocate’s default to file the submissions in chief in support of his appeal timely should not be attributed to any negligence on his part as he trusted him and believed that he would handle each and everything on his behalf. Thus, he 2 should not be penalized on the omission which is not his as contrary decision would deny him of his right to be heard and suffer him irreparable loss. When the application was called for hearing, the applicant appeared represented by Ms. Elizabeth Kagembe, learned advocate while the Respondent hired legal service from Mr. Josephat Mbeba and Mr. Elisha Jones, both learned advocates and both parties were heard viva voce. In support of the application Ms. Kagembe initiated her submission by adopting the affidavit duly sworn by the applicant to form part of her submission. She then went on submitting that, applicant's failure to file the written submission as ordered by the Court was not caused by him as he engaged and trusted the advocate who failed to discharge his duty despite of being paid. Relying on the case of Mohamed Suleiman Ghona Vs. Mahmoud Mwemus Chotikungu, Civil Reference No. 7 of 2021 (CAT) at page 9 where the Court of Appeal observed that, a party should not be punished on account of his advocate’s negligence, she implored upon this Court to grant the application as to hold otherwise would amount to punishing the applicant for the fault of his advocate. In response Mr. Mbeba for the respondent vehemently attacked the merits of the application starting with the provisions in which it has been preferred 3 under when submitted that, the provisions of section 2(3) of JALA and section 95 of the CPC are inapplicable in this matter. That aside he went on submitting that, the application should not be entertained as the applicant has chosen to tell lies to the Court in his affidavit when stated and claimed not to be aware of the Court’s decision for dismissal of his appeal until when he was served with the summons for taxation cause as the record is very clear that he was present with his advocate on 16/07/2024 when the Court was addressed as to why the appeal should not be dismissed for want of prosecution. To fortify his submission, the learned counsel cited to the Court the case of Bashir Ally Vs. Anyegile Andendekisye Mwamaluka and 2 Others, Civil Appeal No. 49 of 2022 (CAT) Tanzlii, where it was held by the Court of Appeal that an affidavit tainted with untruth cannot be relied upon to support an application as the same has to be expunged from the record. As regard to the reason and the submission on advocates’ negligence not to be taken as punishment to the applicant over the dismissed appeal, Mr. Mbeba contested the same arguing that, the ground is applicable in exceptional circumstances which are not found in this case like what was the case relied on by the applicant in Mohamed Suleiman Ghona (supra). While citing to the Court the case of Elias Masija Nyang'oro and 2 Others 4 Vs. Mwananchi Insurance Company Limited, Civil Appeal No. 278 of 2019 (CAT) at page 17 through 18 he held the view that inaction, negligence or omission on the part of the advocate does not amount to good cause for re-admission of this matter since the applicant was duty bound to closely follow up progress of his case which duty he failed to discharge. He thus pressed this Court to dismiss the application for want of merit as the applicant was duty bound under rule 17 of the Civil Procedure (Appeals in Proceedings originating from Primary Court) Rules, GN. No. 312 of 1964, to satisfy the court that he was prevented by sufficient cause from appearing personally or by agent when the appeal was called on for hearing but failed to demonstrate such sufficient cause(s). In her rejoinder submission Ms. Kagembe recanted the submission by the respondent that, the applicant told lies to the Court as to when he became aware of the dismissal of his appeal, arguing that the record will speak the truth on that contention. On the application of the provisions of section 95 of the CPC and section 2(3) of JALA she stated the same are applicable as the application is before the High Court. As to whether advocates’ negligence should be attributed to the applicant’s failure to file the submission in chief in time, she rejoined that, that should not be the case as the appellant was 5 at all time alive and following up progress of his case though he could not do everything including the part of drafting and filing of submissions. She thus maintained that, he should not be punished for the fault which is not his since the only available remedy to him is to grant the application so that his appeal can be heard on merit. She thus implored the Court to grant the application. I have taken considerable time to chew out and internalize the fighting submissions by the parties and consulted the available records in a bid to disentangle parties’ locked horns as to whether the applicant has demonstrated sufficient cause warranting this Court exercise its discretion to re-admit the dismissed appeal. Before going further to the merits of the application, I wish to address first whether appellant’s citation of the provisions of section 95 of the CPC and section 2(3) of the Judicature and Application of Laws Act, invalidates this application. Without wasting Court’s time, I wish to embrace Mr. Mbeba’s proposition that, the same are inapplicable in a matter originating from the Primary Court. However, the settled law which I need not even cite the authority is that wrong citation or non-citation of the applicable provisions of the law does not take away this Court’s jurisdiction to entertain the application in so long as it is seized with 6 the jurisdiction under any existing law to entertain the matter. I therefore find the application is competent before the Court as the applicable law which is also cited by the applicant is the provision of Rule 17 of the Civil Procedure (Appeals in Proceedings originating from Primary Court) Rules, GN. No. 312 of 1964, which requires the applicant to demonstrate sufficient cause for this Court to re-admit the dismissed appeal which is originating from the Primary Court. Next for determination is whether the applicant deposed lies in his affidavit in support of the application as submitted by Mr. Mbeba, which if established to be true as per the decision in Bashir Ally (supra) and Ignazo Mesina Vs. Willow Investment, Civil Application No. 21 of 2001 (CAT- unreported), its effect is to have the whole affidavit expunged from the record, thus leaving the application unclothed and unsupported with any evidence. After consulting the record concerning applicant’s appearance in Court before dismissal of his appeal, I find the submission by Mr. Mbeba that, he was in company of his advocate when called to address the Court on his failure to file the submission in chief timely not to be supported by any evidence as the record is clear that the applicant was not present on that date and even the dates prior to that. I therefore dismiss the contention 7 that he deposed lies in his affidavit and move on to determine the issue as to whether the conceded advocates’ negligence constitutes sufficient cause to warrant this Court grant applicant’s application for re-admission of his dismissed appeal. From the record there is no dispute that applicant on 06/06/2024 was ordered through his advocate one Mr. Demetrius Masala, by 20/06/2024 to file the submission in chief in support of his appeal in PC. Civil Appeal No. 28 of 2023, but defaulted to so do instead without Court’s permission filed the same on 27/06/2024, the act that led to dismissal of his appeal for want of prosecution on 26/7/2023 as he ought to have sought extension of time before filing the same. It is further on record that, on the said 26/07/2024 when the ruling dismissing the said appeal was delivered both applicant and his advocate were absent without any notice or reason. Looking at the whole circumstances the conclusion no doubt is that, applicant’s advocate acted negligently in handling the said appeal. This Court is aware and agrees with Ms. Kagembe’s proposition in the principle as also observed in Mohamed Suleiman Ghona (supra) that, a party should not be punished on account of his advocate’s negligence. However, as a matter of law inaction, negligence or omission on the part of the advocate does not amount to good 8 cause more so when the party has a share of blame. The principle is therefore applicable only in exceptional circumstances as extensively discussed in the same case of Mohamed Suleiman Ghona (supra) where the party is able to demonstrate to the Court that complained of negligence is so glaring and that, he took all reasonable efforts to comply with Court’s order as it was the case in Nkini & Associates Ltd Vs. National Housing Corporation (Civil Appeal 72 of 2015) [2021] TZCA 73 at page 10 where the Court of Appeal had this to say: “Looking at the whole scenario, we agree with Mr. Mwitasi that the appellant did all what she could do but in vain. And, it would appear that the conduct depicted by the previous advocate was such serious to the extent that he was summoned to and appear before the Advocates’ Committee. It may have amounted not only to negligence but also to a gross professional misconduct which contributed to the delay in complying with the court’s orders. In this regard, we have no hesitation to find that the appellant’s prayer is justified.” In Nkini’s case (supra), the advocate’s conduct amounted to gross professional misconduct and the appellant made considerable efforts to retrieve the documents so as to comply with court orders that is why the principle was applied. Unfortunately, that was not the case in Mohamed 9 Suleiman Ghona (supra) relied on by the applicant, where the Court found there was no good cause or sufficient efforts to account for the delay in the challenged decision for denial of extension of time to serve record of appeal. In the case at hand, there is no doubt that advocate’s delay in filing the submission in chief without any justifiable reason might have constituted negligence on his part. However, that alone does not justify application of the above principle as throughout his affidavit the applicant demonstrated no any diligent efforts to mitigate the situation or to comply with court orders for not following up his case to the advocate or appear in Court to track its progress as it is rightly pictured from the Court’s record that on 21/05/2024, 31/05/2024 when his two advocates prayed to withdraw from the conduct of the case before he engaged advocate Masala who appeared on 06/06/2024 in his absence too when the appeal was scheduled for hearing, praying the Court to proceed by way of written submission as he was then recently engaged and could not make proper preparation to proceed with hearing of appeal on the said date. On 16/07/2024 when Mr. Masara, learned advocate conceded to have filed the submission in chief out of time and prayed court’s mercy to have the said submission received despite of being filed outside the prescribed time, applicant was also not in Court. Worse 10 enough even on 26/07/2024 when the ruling dismissing the said appeal was delivered neither the applicant nor his advocate appeared in Court to establish its fate. What is seen is that this application was preferred by the applicant 52 days passed the dismissal order of the appeal, which is almost 2 months after the alleged summons received on 3rd of September 2024 on Taxation cause and realization of the fact that his appeal was dismissed. After having considered the whole circumstances, my considered view is that applicant’s failure to appear in Court or his inactiveness in following up the status of his matter and instead dumping it to his advocate until when he was served with the summons for Taxation case, left him with a part to blame as he was also duty bound to follow up the progress of his case and not to dump it to his advocate as it was held in the case of Lim Han Yung and Another Vs. Lucy Treseas Kristensen, Civil Appeal No. 219 of 2019 (unreported) as quoted at pages 17 through 18 in the case of Elias Masija Nyang'oro (Supra) where the Court of Appeal observed thus: “We think that a party to a case who engages the services of an advocate, has a duty to closely follow up on the progress and status of his case. A party who dumps his case to an advocate and does not make any follow ups of his case, cannot be heard complaining that he did not know and 11 was not informed by his advocate the progress and status of his case. Such a party cannot raise such complaints as a ground for setting aside an exparte judgment passed against him” [Emphasis added] Applying the above cited principle into perspective of this case this Court is convinced and therefore arrive to the findings that, applicant advocates’ negligence in filing the submission in chief timely only, does not constitute sufficient cause for re-admission of the dismissed case or appeal as the general principle as per the case of Elias Masija Nyang'oro (supra), is that where a party has part of blame the inaction, negligence or omission on the part of his advocate does not amount to sufficient case for re-admission of appeal or case or extension of time to perform any action unless there is exceptional circumstances as discussed in the case of Mohamed Suleiman Ghona (supra) which I find none in this case. I so hold as allowing mere negligence of an advocate to constitute sufficient cause in my considered opinion undermines the integrity of judicial process and is likely to encourage laxity on the parties in adhering to procedural rules set by the law. It is essential for parties to be diligent and proactive in managing their cases to ensure that justice is served timely, efficiently and effectively as any failure to do so cannot be excused by the Court. 12 In this matter as held above since the applicant failed to demonstrate any efforts employed by him to prevent or circumvent his advocates’ negligence by making a close follow up of court proceedings, I find the grounds advanced do not sufficiently warrant this Court exercise its discretion to grant the application as prayed by him. In view of the foregoing position, I find no merit in this application. Consequently, the same is hereby dismissed in its entirely with costs. It is so ordered, Dated at Dodoma this 14th day of February, 2025. E. E. KAKOLAKI JUGDE 14/02/2025. Court: The Ruling has been delivered at Dodoma today on 14th day of February, 2025, in the presence of Ms. Elizabeth Kagembe advocate for the Appellant and Ms. Mbeba, adv for the Respondent, the Respondent in person and Ms. Veradina Matikila, Court clerk. Right of appeal explained. 13 E. E. KAKOLAKI JUGDE 14/02/2025. 14