Kulwa Kabizi application

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SHINYANGA SUB – REGISTRY AT SHINYANGA. MISCELLANEOUS CIVIL APPLICATION NO: 202409241000023826 KULWA KABIZI ............................................................................................. APPLICANT Versus BULOGO SINDA SUSANI NYAKWANA BULOGO BARIADI DISTRICT COUNCIL …………………………...RESPONDENTS MWAUCHUMU VILLAGE COUNCIL NYAWA VILLAGE COUNCIL ATTORNEY GENERAL RULING 24th October & 8th November 2024 F.H. MAHIMBALI, J The applicant in this case was the plaintiff in Land Case No. 28229 of 2023 which was dismissed by this Court on 12th August 2024 for want of prosecution. The dismissal order was influenced after the case was set for hearing consecutively as agreed in June 2024 and at the plaintiff and 1 his counsel’s convenience, it being one amongst the few oldest cases in the registry by then. It was unfortunate that on the date set for hearing, neither the plaintiff nor his advocate entered appearance before the court. For unestablished reasons convincing the court for adjourning the case, the Plaintiff's suit was dismissed with costs for want of prosecution pursuant to order IX, Rule 5 of the CPC, Cap 33 R.E 2019. The application is made under Order IX, Rule 5,6 (1) of the CPC and section 95 of the Civil Procedure Code Cap 33 R.E 2019 and section 2(3) of the Judicature and Application of Laws Act. It is upon that dismissal order, the applicant’s counsel has by way of chamber summons supported by his sworn affidavit filed this present application seeking for an order of setting aside the dismissal order and in lieu thereof to restore the dismissed suit. The application is resisted by the respondents. The reasons put by the applicant’s counsel are reproduced into his sworn affidavit on relevant parts as follows: 5. That, on the 12th day of August,2024, the matter was scheduled for hearing but on that date I could not enter appearance because I 2 had a conflict of schedule as I was also entering appearance before the High Court of Tanzania (Commercial Division) at Dar es salaam in the case of CRDB BANK PLC VS JAMES KAUWED MINJA COMMERCIAL CASE NO 202405151000011127 OF 2024(Prof Agatho,J), more so, the Plaintiff himself was indisposed on that date. I took heed to inform this honourable court of that fact through a letter which was aptly received by this court. (A copy of the letter is appended hereto and marked as annexture K1) 6. That, more so, in early July,2024, the Applicant travelled to the United States of America in Kansas to attend his periodic clinic at Wichita hospital. (A copy of the medical chit is appended hereto as annexture K2) 7. That, despite informing the court of the aforementioned facts, this court(Mahimbali,J) proceeded to dismiss the suit for none- appearance on that respective date. 8. That, it is just and equitable this application should be granted. 9. That, there are serious issues of law and fact worthy the attention of this Honourable Court. 3 During the hearing of the application, the applicant was represented by Mr. Paul Kaunda learned advocate whereas the respondents’ counsel who both strongly resisted the were Mr. Vedastus learned advocate for the first and second respondents and Mr. Musa Mpogole learned senior state attorney represented the 3rd to 6th respondents respectively. Arguing in support of the application while adopting for his sworn affidavit, Mr Kaunda submitted that the main reason for restoration is as per paragraph 6 of the affidavit. That on the fateful date, the counsel on record had a conflict schedule as he was appearing before High Court Commercial Court - Dsm and thus informed this court that even the key witness of the matter was indisposed by being sick and was abroad. On furtherance to that, he attached the medical report from America which shows that the applicant who was plaintiff by then was attending medication in America (terminal cancer). Convincing the court, he submitted that the issue of sickness has been a sufficient cause to warrant this court set aside dismissal order and re-admit the dismissed case. He invited this court to be guided by the authority in the case of Raphael K. Magongo and Another Kishoju Village Executive 4 Council and 2 others, Misc. Land Appliaction No. 86 of 2023, HC - Bk, Hon Ngigwana at page 9 (2nd paragraph) while making reference to the case of John David Kashekya v. AG, Civil Application No. 107 of 2012 where the issue of sickness was seriously considered. Thus, in a similar vein, the current matter has the same status. The applicant has not chosen being sick. He clarified that though this matter was earlier scheduled for consecutive hearing from 12th August 2024 but the fact of applicant's sickness cannot be undermined by this good court. Thus, in the circumstances, he humbly submitted that this application be granted as prayed and that the dismissed appeal be restored. Resisting the grant of the application for the first and second applicants, Mr. Vedastus learned advocate submitted that firstly, the counter affidavit filed in court in respect of the 1st and 2nd respondents be adopted by the court. Furthermore, he also associated to the joint counter affidavits filed for the counsel for the 3rd to 6th respondents as he supports it all. The reasons as to why he resists the grant of the application is due to the court's findings and stand that the reasons warranting the dismissal order are sound. What has been submitted by the applicant’s counsel and what is contained into applicant's affidavit, are not sufficient reasons to warrant the 5 restoration of this dismissed suit. Reading the counsel's letter praying adjourning the matter, the same is dated 12th August 2024, and delivered to this court on the same date at early morning. That by itself is highly questionable. He added that the reasons for adjournment by conflict of scheduling is only permissible to the superior court and not to parallel court and upon proof. He elaborated that even by courtesy, Mr. Kaunda ought to have respected the court's seniority. By opting going to a junior judge and leaving the senior judge was by itself an abuse of court process. He went arguing that, reading the court's proceedings dated 21st June 2024, the court had first scheduled the hearing of the matter in early July 2024 but at the convenience of the applicant's counsel it was rescheduled to hearing continuously from 12th August 2024. Therefore, it was not expected for Mr. Kaunda to abuse the court process seeking an adjournment by that letter. The counsel has not been able to establish how that latter case was more important than this. Secondly, he challenged the reason of indisposition by sickness of his key witness as being insufficient to warrant the grant the said application. He said this not in undermining the fact of sickness, but as per contents in 6 the said letter. That in his letter, he stated that his client is indisposed for the past one week, therefore it was not clear whether then on the due date was still indisposed. Thus, what he has submitted today is almost in conflict with what is in his affidavit. The travelling evidence of his client is not vivid if at all he was in Wichita – America as alleged. Additionally, he associated himself with the counter affidavit of the affidavit of the 3rd to 6th respondents that there was no mentioned case before the High Court - Commercial Division - Dsm. That as per judiciary’s data hub, it is clear that the applicant's affidavit contains false information. If that is the case, it must be disrespected. In the case of Lilian Richard V. Iddi Hamis, Civil Application No. 272/08 of 2021 at page 7 on the position of untruthful evidence, as it is, it is not evidence at all. That said, this application be dismissed with costs for want of merits. For the 3rd to 6th respondents, Mr. Mpogole learned senior state attorney firstly prayed to adopt his counter affidavit in opposition of the application. Secondly he opposed the application as lodged and argued. Thirdly, he too associated to the counter affidavit and submission done thereof by the counsel for the 1st and 2nd respondents. 7 Submitting as to whether there are any sufficient causes by the applicant to warrant the grant of the application, he submitted that the term sufficient cause has not been defined in the statute. However, case laws, have tried to elaborate as what grounds may amount to sufficient cause. Inaction, negligence, apathy are not amongst bonafide reasons the court has to take into account. This was insisted in the case of Letshego Bank (T Limited) V. James Simon Kitajo and Another Civil Application No. 12 of 2020, HC at page 12, submitted Mr. Mpogole – SSA. With the first ground of conflict of schedule, he was of the considered view that is not one of the good grounds for court's consideration. He clarified that as per facts of the case, when the case came on 21 st June 2024, it was the applicant's counsel himself who had proposed for the said date of hearing i.e 12th Aug – 14th August consecutively. Other parties and the court had rescheduled for that. Failure by the advocate to honor the said rescheduling date, is equal to inaction, in his considered view. On the conflict of schedule with the High Court - Commercial Division, as per Judiciary Portal the cause list before High Court Commercial Division, Mr. Mpogole first disregarded it as a trivio reason for want of seniority and 8 proof. He went far and ahead establishing that by that day the Judiciary Data Hub Portal, had on 14th August 2024 only had three cases: One before Mkeha, J and two before Minde - DR. Amongst them none was the referred case in the said letter by the applicant's affidavit. That being the case, paragraph 5 of the applicant's affidavit is nothing but falsity. Thus, if the affidavit contains falsity, it is disqualified being a valid one, thus spoils the affidavit, as such chamber summons cannot stand by itself - see the case Jaliya Felix Rutaihwa V. Kalokora Bwesha and Another, Civil Application No. 392/01 of 2020x, CAT at Dsm at page 11 - 12. He thus prayed that this affidavit be not accorded any weight. With the second ground of restoration, he agrees with Mr. Kaunda that sickness of a party or advocate is sufficient cause to warrant consideration of any matter dismissed by the court. However, each case must be judged by its own facts. In the case at hand, the applicant has attached the medical chit as an afterthought for reconsideration of his application. As the same was not availed on 12th August 2024, to produce it later/now is not proper as it is a mere afterthought. Had it been so, it was supposed to be attached even on the date of scheduling. By the way, it is not established that the applicant was on that day really sick as alleged. 9 That notwithstanding, assuming that the applicant was in America as deposed, since there were other witnesses with the case, it was not necessary if at all they were serious, that hearing of the matter should have waited for the recovery of the plaintiff from sickness. Since there is no hard and fast rule that the plaintiff himself must start. His insistence has been one that court’s orders must be respected. Non-compliance to it may render chaos to the administration of justice – he referred this court to the case of Carol Chogoro V. Waitihache Merengo, Civil Appeal No. 164 of 2018, CAT Mwanza at page 7, he concluded. In his rejoinder submission, Mr. Kaunda first reiterated his submission in chief, and added that in listening to the respondents' submission, they don't dispute to the fact of the applicant’s sickness. They also don't dispute the contents of the medical report save the fact that it is an afterthought. Thus, pursuant to section 101 of the TEA, the contents of a document speak for itself. On the fact of the affidavit in support of the application contains false information, the records of the matter before the Commercial Division are within the custody of the Court. Thus, attacking that there was no that case 10 as per cause list of the Court, is not conclusive proof that it was not there. The court has to circumvent itself on the truthfulness of the allegations. On the cited cases, he was not in opposition with the established principles but surely are distinctive from the situation at hand. Reading the case of Jalia, at page 9-11, he argued that the court should know what was the situation before that principle was arrived. Likewise, is to the case of Lilian Richard at page 6. In his considered view, the facts before the cases differ materially. With sympathy, he denounced reacting that not anywhere in his submission he has sought for sympathy to his client. As to the cited case of Letshago, is irrelevant to the current facts for being materially distinguishable. Nevertheless, this Court is discretionary to grant or not grant the application but judiciously. With the case of Karori Chogoro, he submitted that it was cited out of context as there is nowhere that he had neglected the court's order. On the fact of indisposition of the applicant, he elaborated that in his letter seeking for an adjournment and repeated the same in the affidavit supporting the application, the sickness was on the due date of hearing. 11 With all this, he concluded by humbly praying that for the interests of justice let this application be allowed as prayed and that the dismissed suit be restored. Having heard the submissions from both sides for and against the application, I find the applicant’s application misplaced as per facts of this case. I say so on the basis that, Mr. Kaunda failed to establish whether this Court was junior to Commercial Court (Hon. Judge Professor Agatho) for him to justify his appearance to the latter court. It is also neither in the affidavit nor by submission that the latter case before High Court Commercial Division was so urgent to the extent that it was necessary for his presence over there. That notwithstanding, I had expected there to have been annexed court’s proceedings featuring Mr. Kaunda appearing before the said court if at all he did. I am very aware that sickness if established has been one of the acceptable causes in our jurisdiction to consider an application for extension of time or suit restoration upon its dismissal (see Raphael K. Magongo and Another V. Kishoju Village Executive Council and 2 others, Misc. Land Appliaction No. 86 of 2023, HC - Bk, John David Kashekya v. AG, 12 Civil Application No. 107 of 2012, Emanuel R. Maira vs The District Executive Director of Bunda, Civil Application No. 66 of 2010 (unreported)). In the present case, that the applicant was in America at Cancer Center of Kansas – Wichita as per annexture to the affidavit dated 20 th July 2024, is insufficient of explanation. Someone being sick and in hospital is a question of fact, thus must be strictly established. I say so on the basis that in an application to set aside the order dismissing the suit for non- appearance, the important question to pose is not whether the case for the applicant is soundly maintainable and meritorious, but whether the reasons furnished are sufficient to justify the applicant’s non-appearance on the date the suit was dismissed (see Nasibu Sungura vs Peter Machumu [1998] T.L.R at page 501. In the current case, I had expected a strict proof that the applicant was truly sick and in America as deposed. Being in America is not a travel by uber cab or bodaboda. I had expected there to have been a clear proof of air ticket that he was in America by the stated date. I have not seen such an annexture. The provided medical chit, is neither stamped nor signed. I wonder if Mr. Paul Kaunda was serious with his application. 13 Assuming that the applicant was sick as deposed (though not dully established) and that he was in America as proposed (but without any proof), I wonder if that is the manner of a senior counsel like Mr. Kaunda to communicate case adjournment by letters. The best acceptable practice has been by that advocate informing the court by another advocate holding his brief in court. Adjournment by a letter cannot substitute for an appearance. Mr. Kaunda should have courtesy of asking another advocate to hold his brief and come to court and seek an adjournment (See National Examinations Council of Tanzania Versus Adelina Chungulu and 99 Others, Civil Appeal No. 15 of 2007, CAT at Dsm). I think this is gentle reminder to junior and senior counsel in the jurisdiction of this Court on court’s strict courtesy. All this considered, sincerely, I must associate myself with the argument by the respondents’ both counsel that, the argument by applicant does not suffice to hold reasonable grounds for the grant of the application. Indeed, the applicant has failed to account for good cause of restoration of the dismissed suit. For the foregoing, I find that applicant has failed to provide sufficient cause of restoration of the dismissed suit as he has just failed to establish 14 that good cause. I therefore dismiss the application with costs for being devoid of any merit contributed by dilatory conduct on his part. DATED at SHINYANGA this 7th November, 2024. F.H. Mahimbali Judge 15