MISC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA (CORAM: HON. AISHA BADE) MISCELLANEOUS LAND APPLICATION NO. 123 OF 2023 KATARINA SABOKU................................COMPLAINANT / APPELLANT I APPLICANT / PLAINTIFF VERSUS SARA RUMAS & OTHERS................................. RESPONDENT / DEFENDANT RULING Fly Notes Parties Non Appearance when the matter was called for Hearing. Facts Respondent filed preliminary objections against an application for mareva injunctions, both parties Ratio Decidendi Order 9 Rule 2 comes into play. Both parties did not appear to prosecute preliminary objections or the Application. 2nd of September 2024 Hon. BADE.: 27/08/2024 & 30/08/2024 BADE, J. Applicant instituted an Application against Respondent, praying to be granted a mareva injunction against the Respondent as she awaits maturity of the notice against the Attorney General. In her affidavit she deponed that she was the lawful owner of some 12 big trees planted in the boundary of her land and the one bordering the late mother of the Respondent. She claims that the Respondent has colluded with the village chairman Saitabau planning to harvest her said trees and sell the timber without any color of right. She also claimed that they had previously attempted to harvest such trees before. The Applicant thus prayed for this Court to make orders that: 1. That a temporary injunction order be issued against the respondents, her agents, servants, or any person working under her instruction and information and/or workmen from selling trees of the applicant which arc m dispute or any of its product, or dealing with the trees or their product in any way pending maturity of the 90 days notice to the village council/chairman and the Attorney General. 2. The costs of this application be provided for, and 3. Any other relief that this honorable court may deem just and fit to grant The Respondent did not let the matter passed unopposed, and she filed a counter affidavit after being granted leave to so do. Tn response, she refuted the ownership claim of the said trees by the Applicant as per paragraphs 4 and 5. She further deponed that the act complained of had already happened, admitting that it is true she sought the Chairman of the Hamlet’s approval to harvest the disputed trees which she believed to be hers. However, before this Application could be heard, the Respondents raised a point of preliminary objection in their Written Statement of Defence, to wit: 1. The court lacks jurisdiction to grant the relief sought in the chamber summons. 2. The prayers sought in chamber summons have been overtaken by events. 3. The Applicant s application is misconceived and bad in law for being frivolous and vexatious hence an abuse of the court process. The parties were ordered to appear for the hearing of the preliminary objections on August 28 at 12 pm. However as it happens, the same could not proceed as the parties did not appear. In situations where both the plaintiff and the defendant do not appear before the court during the hearing of the suit, the court is granted the authority to dismiss the suit per Rule 2 of Order IX of the Civil Procedure Code RE 2022. On the other hand. Order XVII of the Code deals with ‘Adjournments’ and Rule 1 of Order XVII of the Code is instructive seizing the court with general conduct of the matters in court providing among other things, where on the day to which the hearing of the suit is adjourned, the parties to the suit or else any of them fails to appear before the court then the court may proceed to dispose of the suit in one of the modes specified by Order IX of the Code in that behalf, or, the court shall make such other order as it deems fit. There has not been adduced any cause neither has any counsel who used to appear on behalf of the Applicant oi the Respondent had entered an appearance. Even though initially I made up my mind that I shall rule on the point of preliminary objection particularly because one of them points to the jurisdiction of the court, I have taken a position not to. I find no basis to dwell on the points of objections raised as they have not been prosecuted. But also as stated, the Respondent is also not in court to prosecute objections, or the Applicant to prosecute the Application before the court. In that regard and without further ado, I hereby dismiss the Application for non-appearance as per the provisions of Order IX and XVII of the Civil Procedure Code, Cap 33 RE 2019. Having said so, this Application is dismissed for non-appearance. I order no costs as none of the parties appeared to prosecute the matter. It is so ordered. DATED at ARUSHA this 30th day of August 2024 Dated at ARUSHA ZONE this 2nd of September 2024. AISHA BADE JUDGE OF THE HIGH COURT