UGALAMA VS MINZA

IN THE HIGH COURT OF TANZANIA DODOMA SUB- REGISTRY

AT DODOMA CIVIL APPEAL NO. 7145 OF 2024 (Arising from Matrimonial Application No. 03 of 2023 of the Iramba District Court at Kiomboi)

BETWEEN LANGULA UGALAMA………………………………APPELLANT

VERSUS MINZA KINGA…………………………………………..RESPONDENT

JUDGMENT Date of last Order: 22/07/2024 Date of the Judgment: 22/08/2024 LONGOPA, J.: This is an appeal against the decision of the District Court of Iramba at Kiomboi that dismissed the application for setting aside dismissal order. The District Court on its ruling dated 19th February 2024 dismissing the application for re-admission of the appeal that was dismissed for want of prosecution for non-appearance of the appellant and his advocate on the date set for hearing of the appeal. 1|Page It was restated that the appellant was aggrieved by the decision of the Primary Court of Ndago (hereinafter “the trial court”) in Matrimonial Cause No. 19 of 2023, thus appealed to the District Court of Iramba sitting at Kiomboi vide Matrimonial Appeal Case No.07 of 2023. Per the record of the proceedings, the Matrimonial Appeal came for mention on 28th September, 2023 on which date the same was scheduled for hearing on 18th day of October, 2023. Further, it is revealed that on 18th October, 2023 the Appellant and his advocate appeared but the matter could not proceed as the Respondent had engaged an Advocate who did not appear thus on the appellant’s concession, the hearing was adjourned to 25th October, 2023. On the 25th October, 2023 the Matrimonial Appeal was dismissed for non- appearance of the Appellant as both the appellant and his advocate were not in court. It was stated further

that the appellant lodged an application seeking for restoration of the dismissed appeal, which was MISC. MATRIMONIAL APPLICATION NO. 3 OF 2023 the District Court dismissed the application for want of merits. It is the dismissal of the application for restoration of the dismissed appeal which triggered the present appeal. On 3rd April 2024, the appellant filed an appeal on a single ground, namely that: 2|Page The District Court erred in law and in fact for not finding that the appellant had advanced reasonable cause for non- appearance on the date Matrimonial Appeal No. 7 of 2023 came for hearing as such wrongly dismissed the application for re-admission of the appeal thus causing a failure of justice to the appellant. The respondent resisted the appeal on the that the District Court decision in Matrimonial Application No. 03/2023 was correct since the court reached such decision affording opportunity to be heard to both parties and found the appellant herein failed to advance good cause for his non- appearance on the date Matrimonial Appeal No. 07/2023 was fixed for hearing hence dismissal of the said application. On the strength of this opposition the respondent prayed for dismissal of the appeal for lack of merit. The matter was agreed to be disposed by way of written submissions. Both parties complied with order of submissions. I commend them for compliance with the

submission scheduling orders. It was submitted for the appellant that the appellant is urging humbly that this Court be pleased to reverse the decision of the District Court of Iramba sitting at Kiomboi which dismissed the application for restoration of the dismissed appeal. 3|Page The basis of the appellant’s prayer hinges on only one ground of appeal namely that the District Court erred in fact and law in not finding that the Appellant had advanced a reasonable Cause for his non- appearance on the date Matrimonial Appeal No. 7 of 2023 came for hearing as such wrongly dismissed the application for re-admission of the Appeal thus causing a failure of justice to the Appellant. The appellant argued that the non-appearance of both the Applicant and his advocate was neither willful nor negligent but for the reasons that were stated in the Affidavits in support of the refused Application for re- admission of the Appeal. The reasons stated were that:- i) the Advocate for the Applicant failed to attend because while at Singida on 24th November, 2023 heading to Kiomboi for the hearing he was informed that an old Economic Case that had been re-instituted in the Court of a Resident Magistrate of Singida, at Singida as Economic Case No. 12 of 2023 REPUBLIC vs. FLORAH PETER MREMI was fixed for Preliminary Hearing on 25th November, 2023 in his absence and he thus instructed the

Appellant herein to go and report to court of the absence of his advocate (this is evidenced by annexure marked “A1” to the Affidavit of CHEAPSON LUPONELO KIDUMAGE, Advocate). ii) The Appellant herein (Applicant in Misc. Matrimonial Application No. 3 of 2023) was judged absent without any reasonable cause because when the matter (Matrimonial Appeal No. 7 of 2023) was called on to the presiding Magistrate’s Chambers he was 4|Page within the Court precincts save that he did not hear the case being called up. It is averred that after noting that time was rushing he went and made inquiries to the Court Clerk who then told him that the Appeal was dismissed for non-appearance. He then went to meet the Magistrate in Chambers and reported that he was outside and did not hear the case being called up. To our view the duo constituted a sufficient cause for non- attendance for the Appeal in terms of Rule 17 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. 312 of 1964 and Order XXXIX Rule 19 of the Civil Procedure Code, [Cap. 33 R.E. 2002]. The District Court of Iramba sitting at Kiomboi ought to have ruled in favor of the appellant herein (the then Applicant). The reason is not far- fetched. There is no any willful or negligent absenteeism from attending the Court Proceedings on the date the Matrimonial Appeal was dismissed for

non-appearance. Moreover, the appellant argued that dismissal of the appeal for non- appearance of an Appellant connotes a penal sanction for deliberate or willful non-appearance to enable the matter proceed and be finalized, either being a delaying tactic or lack of interest to further pursue the matter to finality. Dismissal is not a weapon to punish the party bringing his complaints even where he did not intend to disappear from the Court proceedings. Courts of law worth the name prefer substantial justice to legal technicalities and that is why even Rule 13(2) of the Civil Procedure 5|Page (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. 312 of 1964 is couched in a permissive and not mandatory terms, the word used is “the court may dismiss…” and not “the court shall dismiss…” This provision gives liberty to the court to order adjournment in appropriate cases. According to the appellant, this Court has on several occasions stressed that suits should, whenever possible, be determined on merits and that dismissal of suits for non-appearance should be meted only where the non-appearance is deliberate aiming at delaying the outcome of the suit in question. The appellant cited the case of FREDRICK SELENGE & ANOTHER vs. AGNESS MASELE [1983] TLR 99, where amongst other issues, the court reiterated the necessity of determining suits on their merits. The appellant

reiterates further that the District Court of Iramba did not consider the merits of the reasons advanced for the re-admission of the Matrimonial Appeal No. 7 of 2023 before deciding the application. Accordingly, in appellant’s view the reasons were blatantly ignored by not giving justifying reasons. It is the appellant’s view that he was denied his indispensable natural and constitutional right to be heard and as per the decision of the Court of Appeal of Tanzania in MBEYA-RUKWA AUTOPARTS & TRANSPORT LTD v. JESTINA GEORGE MWAKYOMA [2003] TLR 251 such decision should not be allowed to stand. 6|Page Additionally, it is argued that the proceedings leading to dismissal of the Appeal itself were marred with irregularities and illegality such that to allow the decision remain will leave court proceedings illegitimate. These are the following: First, the record does not show that before the 25th day of October, 2023 the matter was fixed for hearing. Second, the prayer to move the Court to dismiss the Appeal for non-appearance and the law upon which the Court Order was predicated were inapplicable to proceedings that originate in primary courts. It was reiterated that appeals originating in Proceedings of primary courts are governed by the provisions of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. 312 of 1964 and not the Civil Procedure Code,

[Cap. 33 as revised from time to time]. According to the appellant, the provisions of the Civil Procedure Code apply in District Courts when entertaining matters in their original jurisdiction or in the High Court of Tanzania when entertaining matters in either their original, appellate or revisional jurisdiction and not otherwise. In the circumstances, the appellant argues that the proceedings before the District court were irregular and illegal and do not deserved to stand as they do. It was the appellant’s call that this Court should use its legal powers to correct the same so as to clean the record of proceedings leading to this appeal by allowing the appeal and making necessary orders to make the Appeal before the District Court be heard on its merits. 7|Page On the other hand, the respondent challenged the appeal on account that appellant herein uses litigation as a means of staying the execution of orders made by Primary Court on the custody of children and division of matrimonial assets. It is asserted that the appellant has never cared for the issues of the dissolved marriage since the order of the Ndago Primary Court in Matrimonial Cause No. 19 of 2023 dated 17/07/2023. In respect of the ground of appeal, the respondent argued that the District Court of Iramba correctly and in accordance with the law had a right to dismiss the application for restoration of the

dismissed appeal for failure to adduce sufficient cause for his non-attendance. The District Court, according to the respondent, used its discretionary powers judiciously to dismiss the application. Moreover, a principle in Lim Han Yung & Another v. Lucy Treseas Kristensen, Civil Appeal No.219 of 2019, [2022] TZCA 400 (28 June 2022) (TanzLII) was cited that it is must for the Plaintiff or party seeking to set aside the dismissal order to advance sufficient cause before the court dispenses with its order. It is the respondent’s argument that based on this principle, it was appellant’s duty to show existence of sufficient cause before the court for his non-attendance but he failed to do so as the reasons advanced were quite weak to convince the court to restore the appeal. 8|Page It is reiterated that the appellant is the one responsible for dismissal of the application for restoration of the appeal as he failed to prosecute his case/ application by disobeying the court order as scheduled for hearing without sufficient cause. The appellant herein, according to the respondent, waived his right to be heard on merits of the appeal for not attending in court on the date fixed for hearing of the appeal without any reasonable ground. Thus, blame should not be shifted to the District Court which applied the law correctly. The respondent concluded her submission that given

the circumstances that appellant failed to show sufficient cause for his conduct of non-attendance/ appearance before the court on date set for hearing, the District Court was right to dismiss the application for restoration of the appeal as there was failure to sufficiently prove before the court on reasonable grounds to set aside the dismissal order. Thus, the respondent reiterated that this court is enjoined to dismiss the appeal for want of merits. I have noted that the appellant in his written submission challenges both the dismissal of the application for re-admission of the Matrimonial appeal which is the subject of this appeal and attacks the dismissal order that led to the application for re-admission as well. I must state that it is inappropriate to challenge both decisions purportedly in a single appeal. However, for clarity I shall address both aspects, mandate of the District 9|Page Court as an appellate court to dismiss an appeal for want of prosecution and aspect of dismissal of the application for re-admission of the appeal which basically forms the backbone of this appeal. The parties have addressed both aspects in course of arguing this appeal. Indeed, Rule 13 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. 312 of 1964 permits the Court from exercising its powers to dismiss an appeal where the appellant does not in

person or through an agent. In particular, Rule 13(2) of the Rules states that: (2) Subject to the provisions of sub-rule (1) of this rule, where on the day fixed for hearing the appeal or any day to which it may be adjourned, the appellant does not appear in person or by agent, the appellate court may dismiss the appeal. It is on record that both the appellant and his advocate did not appear on 25th October 2023 when the matter was fixed for hearing. The appellant admits that the counsel for appellant was not in court as he was attending an economic case at the Resident Magistrates Court of Singida. It is alleged that appellant was within the court’s precincts but he did not hear when the case was called upon. At the time the case was called upon for hearing before trial magistrate, the appellant was not present before such magistrate. 10 | P a g e In the case of Fakhria Shamji vs The Registered Trustees of The Khoja Shia Ithnasheria (Mwanza) Jamaat (Civil Appeal 143 of 2019) [2022] TZCA 77 (25 February 2022) (TANZLII), at pages 9-10, the Court provided the guidance on when dismissal order can be made. It stated that: Although the term "mention" is not provided for in our CPC, but it has been a well-established practice that there is difference between a "mention" and "hearing" date. Guided by the decision in Mr. Lembrice Israel Kivuyo (supra), that dismissal can only be made

on a hearing date and not "mention" as most parties consider a "mention" day as a day for necessary orders, including scheduling of a hearing date, which was not the case in the instant matter. We thus agree with Mr. Mayenga's submission that it was not fitting for the Judge to hurridly react by dismissing the PC. The Judge did not even bother to allow Mr. Luoga to address him on the PO raised. It is settled principle that adjournment of a hearing is a discretion of the court which should be exercised judiciously in case there are satisfactory grounds, and that dismissal order can only be invoked on date set for hearing. In the instant appeal, the matter was scheduled for hearing of the appeal on material date the same was dismissed. 11 | P a g e Effect of the parties’ failure to comply with court orders regarding hearing of the case is dismissal. For instance, in the case of Anna Zakaria v Reniel Marthini (Land Appeal No. 48 of 2023) [2024] TZHC 531 (22 February 2024) (TANZLII), at page 3, the High Court stated that: It is settled law that failure to file written submission in support of any matter, it tantamount to failure to appear on the date the matter is fixed for hearing. The remedy is to have the matter dismissed for want of prosecution. From the principles in these decisions, I am of the settled view that the District Court for Iramba at Kiomboi was correct to dismiss

the matter for want of prosecution on account of the appellant’s non-appearance on the date set for hearing. The Court had powers to so decide. In the case of Registered Trustees of Baraza Kuu la Jumuiya ya Waislamu Tanzania vs Registered Trustees of the National Muslim Council of Tanzania (BAKWATA) (Civil Application No. 480/08 of 2024) [2024] TZCA 630 (24 July 2024) (TANZLII), at page 6, the Court of Appeal restated the position as follows: It is, I think settled position of law held by the Court in many cases without citing any, that wrong citation of an enabling provision or non-citation is not fatal if the court is clothed with powers to grant the relief sought. 12 | P a g e I shall hasten to state that it does not matter whether the dismissal for want of prosecution is premised on the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. 312 of 1964 (the Rules) or the Civil Procedure Code, Cap 33 R.E.

2022. Both sets of the law contains provisions entitling the court to so act when the appellant does not appear on the hearing date. The Court has all the powers in both instances to dismiss a matter where the appellant is unwilling to prosecute its case by failure to appear without justification on date set for hearing. After all, it is settled law as cited Registered Trustees of Baraza Kuu la Jumuiya ya Waislamu Tanzania v. BATWATA (supra) that non- citation or wrong citation of the law has no effect where the court is having mandate to deal with a matter. The next stage is on the re-admission of the dismissed appeal. Rule 17 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. 312 of 1964 provides a lucid guide on the matter. It states categorically that: Where an appeal has been dismissed under sub-rule (2) of 13 in default of appearance by the appellant, he or his agent may apply to the appellate court for the re- admission of the appeal; and if the court is satisfied that he was prevented by any sufficient cause from appearing either personally or by agent when the appeal was called 13 | P a g e on for hearing it may re-admit the appeal on such terms as to costs or otherwise as it thinks fit. It is lucid that re-admission of a dismissed appeal on account of non- appearance is not automatic. There are conditions which must be

fulfilled. First, there must be application made by the applicant/ appellant to set aside the dismissal order thus application for re-admission. Second, the court must be satisfied that reasonable cause existed to prevent the appellant to fails to appear. Third, upon such satisfaction by the Court, it may order re admission on terms and costs it deems fit. The application for re-admission involves exercise of discretionary powers of the Court which should be done judiciously. The Court must be availed with sufficient grounds to allow it to so exercise discretionary powers. Such grounds must be of sufficient nature to warrant the court revisit and substitute its finding/order previously made. In John Harald Christer Abrahamsson vs Exim Bank T. Limited & Others (Civil Application No. 468/16 of 2022) [2024] TZCA 130 (27 February 2024) (TANZLII), at pages 4-5, the Court of Appeal reiterated the principle in exercising discretionary powers. It stated that: It is trite law that, extension of time is a matter of the discretion of the Court which must be exercised 14 | P a g e judiciously according to the facts of each case. See; Mwita s/o Mhere v. Republic [2005] T.L.R. 107 and Ngao Godwin Losero V. Julius Mwarabu, Civil Application No. 10 of 2015 (unreported). It is also common that, in applications for extension of time, the Court is required to consider whether or not sufficient

cause for delay has been shown to warrant the exercise its discretion to grant the extension of time. There is, however, no definition of what amounts to "sufficient cause" but in determining whether in a particular case, sufficient cause has been established or not, a number of factors have to be taken into consideration depending on include; whether the applicant was diligent, reasons for the delay, the length of the delay, the degree of prejudice to the respondent if time is extended, whether there is a point of law or the illegality or otherwise of the impugned decision. The main question is whether there existed a sufficient cause for the District Court to set aside the dismissal order and order re-admission of the appeal for it to be determined on merits. In assessment of the District Court of Iramba at Kiomboi there was no sufficient cause for the court to set aside the dismissal order thus order 15 | P a g e re-admission of the appeal. The Court stated further that assertion by the appellant (applicant) was not sufficient to warrant the court to exercise its powers under Rule 17 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. 312 of 1964. There was nothing from the appellant’s side to substantiate that he was in court premises at the time when the appeal was called for hearing before the first appellate court. The assertion

ought to have been supported by the affidavit of the clerk who allegedly was asked/enquired about the case. That statement that the appellant was in court premises was not substantiated by any iota of evidence. In the premises above, the District Court of Iramba at Kiomboi was correct to dismiss the application for re-admission of the dismissed appeal for want of prosecution due to non-appearance. The discretionary powers exercised judiciously should always not be disturbed. Exercise of discretionary powers can only be overruled by the appellate court in case the same was based on wrong principles otherwise there is no need to do so. The principle in case of Managing Director Tanzania New Habari Ltd vs Fadhili Josiah Manongi (Civil Appeal 115 of 2019) [2021] TZHC 6220 (7 September 2021) (TANZLII) is illustrative, where Hon. Masabo, J.: noted that: 16 | P a g e It is a cardinal principle that, since the assessment of general damages falls under the purview of judicial discretion, the figure arrived at by the trial court is not disturbed on appeal unless it is based on erroneous principle or it is so low or so excessive that it must have been based on some incorrect reasoning. It is my settled view that as the re-admission of the dismissed appeal for want of appearance of the appellant falls within the discretionary powers. It is lucid that record indicates that the District

Court of Iramba at Kiomboi properly analysed the grounds for not concurring with appellant’s reasons for readmission of the dismissed appeal. I shall not depart from the decision of the District Court of Iramba as there is nothing to warrant such departure. I am fully guided by the principle in the case of Lim Han Yung & Another vs Lucy Treseas Kristensen (Civil Appeal 219 of 2019) [2022] TZCA 400 (28 June 2022) (TANZLII), at pages 14-15, where the Court of Appeal in explicit terms observed that: Going by the wording of the above reproduced provisions, it is clear that the power given to the court in setting aside an ex parte judgment, is discretional. We are also mindful that generally the exercise of discretion by the lower court can rarely be interfered by a superior court. Such an 17 | P a g e exercise can only be interfered with where it is clear that the decision arrived at was a result of erroneous exercise of discretion through either the omission to take into consideration relevant matters or taking into account irrelevant extraneous matters and misdirecting itself. The appeal before this court is preferred without any iota of merits as the District Court exercised its discretionary powers in proper manner and in accordance with the tenets of the law governing application of that nature. The District Court weighed the grounds advanced by the appellant/applicant before

the Court to satisfy itself as to whether such grounds sufficiently addressed the matter to warrant re-admission of the dismissed appeal. It was the reasoned finding of the District Court that no sufficient grounds were placed before it to warrant departure from that decision of the court to dismiss the appeal for want of prosecution as a result of non-appearance of both appellant and his advocate on the date set for hearing. The fact that counsel for applicant was in Singida attending an Economic case that was re-instituted without knowledge of the counsel for the appellant/ applicant was not sufficient as well. In terms of the jurisdiction, the District Court of Singida and the District Court of Iramba are at par in terms of powers. The circumstances could be different if the counsel was attending a criminal session before the High Court of Tanzania 18 | P a g e which is superior to that of the District Court. Further, there was no evidence at all to substantiate that the counsel for appellant herein travelled to Singida. He ought to have attached either of two documents to substantiate that aspect in my view. First, receipts indicating that he travelled to Singida in terms of for example bus fare tickets or accommodation booking at Singida on the material night falling to the hearing date in District Court of Iramba or the so-called preliminary hearing at District Court of

Singida. Second, as the allegations are that counsel remained in Singida to appear before a Court of Law, then he would have produced the proceedings of that particular date to validate his presence in Singida District Court. I am certain that there was no information on the whereabouts of the appellant and his advocate that was communicated to the District Court of Iramba to consider adjourning the matter on that material date when the same was scheduled for hearing. Thus, dismissal for want of prosecution was the only reasonable course availed to the Court. It is my settled view that the District Court of Iramba at Kiomboi was correct to dismiss the application for re-admission of the appeal for failure by the applicant/ appellant to adduce sufficient cause to warrant the restoration. Thus, the decision of the District Court to dismiss the application was correct and in accordance with the law. I shall uphold such 19 | P a g e decision. Accordingly, the appeal is destitute of merits and it shall stand dismissed with costs. It is so ordered. DATED at DODOMA this 22nd day of August 2024 E.E. LONGOPA

JUDGE 22/08/2024. 20 | P a g e