keneth fanuel shango vs tanzania portland cement co ltd 2020 tzhclandd 2260 20 october 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC LAND APPLICATION NO. 732 OF 2019 KENETH FANUELSHANGO...............................................APPLICANT VERSUS TANZANIA PORTLAND CEMENT CO. LTD.................. RESPONDENT (Application for extension of time within which to file application for setting aside dismissal order of 7/9/2007 of this Court in Land Case no. 184 of 2006) RULING MGETTA, J: This ruling is in respect of the chamber summons filed on 30th December, 2019 by the applicant, one Keneth Fanuel Shango who is seeking for extension of time within which to file an application for setting aside the dismissal order made on 7th September 2007, and delivered on 14th September, 2007 by Hon. Longway, J (as she then was) in Land Case No. 184 of 2006. For ease of reference, she stated as quoted hereunder: "However, since the plaintiff and his advocate have been absent consecutively on 6 occasions, a good indicator not only for lack of vigilance but also lack of interest to Page 1 of 4 prosecute such that it is satisfying to hold as I do that this suit be dismissed for lack of prosecution. It is so dismissed. Sgd: Longway, JUDGE 7/5/2007" It is that order he is seeking to be set aside, but he found himself late to apply; hence, this application seeking for extension of time to do so. As said herein before, he has lodge chamber summons made under section 14 (1) of the Law of Limitation Act, Cap 89, supported by his sworn affidavit. When the application was called on for hearing, through their respective legal representative, the parties requested, the request which I granted allowing them to argue the application by way of written submissions. I managed to go through their written submissions and found them helpful. In his written submission, the applicant entirely shifted the blame of his delay to the advocate that he had engaged to represent him throughout the case. He asserted that, he hired the advocate to pursue his matter. Unfortunately he defaulted appearance on several occasions when Page 2 of 4 the case was scheduled for hearing. When he learned that his case was dismissed, it was already late to come to this court without first seeking and be granted extension of time to do so. The advocate that he engage did not inform him that his case was dismissed. As he was serving the country as military officer, he had limited time and space to appear and make follow-up of his case before the court, that's why he left everything to be handled by his advocate. Unfortunately he did not attend as a result his case was dismissed for failure to prosecute it. He vehemently requested this court to find that the failure to attend the court was not due to his negligent. It was due to negligence of his advocate. He was misdirected by his advocate on the status of his case. He therefore asked this court to see that negligence of the advocate in the circumstances whereby as military officer of rank of Lieutenant Colonel without enough time to make follow up of the case should be considered as sufficient reasons for extension of time to file the intended application. In his submission, Mr. Victor Kikwasi, the learned advocate for the respondent asserted that the reason of his advocate's negligence alone is not sufficient to warrant this court to extend time to him and that he has failed to account for each day of delay from the date when the suit was Page 3 of 4 dismissed. He insisted that negligence by advocate does not constitute sufficient cause for granting the extension of time. I have taken into consideration the submission of both parties. At least, what has been stated by the applicant, the retired lieutenant colonel of the Tanzania Peoples Defense Forces approximates to genuine reasons which have persuaded me to grant him time to file an application for setting aside the dismissal order of this court. In the event, the applicant is given thirty (30) days from the date of this ruling, within which to file application for setting aside the orders of this Court in Land Case No. 184 of 2006. It is so ordered. J.S. MGETTA JUDGE 20/10/2020 COURT: This ruling is delivered today this 20th day of October, 2020 in the presence of Mr. John James, the learned advocate for the respondent, but in absence of the applicant who is dully served. J.S. MGETTA JUDGE 20/10/2020 Page 4 of 4