LUCIA MKOLOMA VS JOSEPH MGWAMBI

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT PODOMA MISC. CIVIL APPLICATION NO. 11377 OF 2024 (Arising from the Order o f this Court dated 19h April, 2024 in Land Appeal No. 56 o f2023) LUCIAN MKOLOMA.....................................................APPLICANT VERSUS JOSEPH MGWABI.....................................................RESPONDENT RULING 3CfhJuly & 10h September, 2024 MUSOKWA, J. This is an application seeking to set aside the dismissal order issued by this court, which will result in the restoration of Land Appeal No. 56 of 2023. The said appeal was dismissed for want of prosecution on 15th April, 2024. The applicant preferred his application under Order XXXIX rule 19 of the Civil Procedure Code, Cap. 33 R.E. 2019 (CPC). The application is made by way of chamber summons supported by the affidavit of the applicant sworn on 13th May 2024, whereby the applicant prays for the following orders: - 1. That, the honourable court be pleased to set aside its dismissal order o f 15th April, 2024 and for re-admission o f the Land Appeal No. 56 o f2023 so as to ensure the access o fjustice. 2. That, this honourable court be pleased to grant any other relief (s) as it deems fit to grant. The application was argued by way of written submissions and the parties duly complied with the scheduling order. At the onset, the applicant prayed to make correction of the typing errors regarding the proper names of the applicant and the respondent. The applicant prayed that the names should read as Lucia Nkoloma Mugwabi (Administratix of the Estate of the late Nkoloma Mugwabi being the applicant versus Joseph Walaku, the respondent. In addition, it was stated that the corrected names appear in the records of the present appeal. The applicant further prayed that the affidavit be adopted to form part of her submission. The applicant submitted that prior to this application, she filed Land Appeal No. 58 of 2023 before this court against the respondent herein. Further, that on the different dates the matter was scheduled before the court for necessary orders, and either the applicant herself or her advocate duly entered appearance thereof. Submitting further, the applicant stated that on 25th March 2024, the matter was scheduled for mention whereby she was served with the reply to the memorandum of appeal, accompanied with a notice of preliminary objection. The hearing of the preliminary objection was scheduled on 3rd April, 2024. On the said hearing date, the applicant appeared in court late due to the fact that her place of residence is a long distance from the location of the court. Thereafter, the court fixed the hearing of preliminary objection on 15th April, 2024. Further, that on 15th April 2024, the appeal was dismissed for want of prosecution. The applicant stated that, failure to attend was not deliberate but it was beyond her control. Thus, the applicant prayed for the court to grant the present application and to order the re-admission of the appeal for the interests of justice. In reply, the respondent argued that the purported typing error in relation to the names of the parties was purely professional negligence. The respondent asserted that the applicant was duty bound to ensure that there is no variation in the names of the parties in any documents that are filed in court so as to ensure that the records before the court are in the proper order. 3 The respondent submitted further that, this application for restoration is baseless in law, due to the fact that both the applicant and her advocate were present on 25th March, 2024. That on the said date, they were served with the reply to the memorandum of appeal with the notice of preliminary objection. Hence, both the applicant and her advocate were fully aware that the hearing of the preliminary objection was scheduled on 3rd April, 2024. The respondent vehemently contended the assertions by the applicant relating to late arrival in court for reason that she was commuting from a long distance. This reason is immaterial as the applicant had legal representation, thus her counsel should have appeared on her behalf. The respondent prayed for the dismissal of the application in its entirety, with costs, for want of merit. Notably, there was no rejoinder filed by the applicant. Upon careful scrutiny of the submissions of the parties, the pertinent issue to determine is whether the applicant has demonstrated sufficient cause to warrant this court to exercise its discretion and to set aside its dismissal order; and as the result, restore the dismissed Land Appeal No. 56 of 2023. It is a trite law that the applicant should furnish sufficient reasons to enable the court to exercise its discretionary power to set aside a dismissal order. This application was made under Order XXXIX rule 19 of the CPC which provides that: - 19. Where an appeal is dismissed under sub-rule (2), of rule 11 " or rule 17 or rule 18, the appellant may apply to the Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit." [emphasis added] Reading the above provision of the law, it is apparent that for the dismissal order to be set aside; the applicant must provide sufficient cause to warrant the court to grant the orders sought. Based on the records of the proceedings of the dismissed Land Appeal No. 56 of 2023; it is evident that both the applicant and her advocate repeatedly failed to enter appearance in court on dates that had been scheduled for hearing. The aforementioned dates include on 26th February, 2024; 03rd April, 2024 and 15th April, 2024. Further, there was no notice that was filed in court to furnish reasons for the said absence. The applicant in her supporting affidavit and written submissions, attempted to advance feeble reasons of late attendance in court due to commuting challenges. Looking on the record, on 25th March 2024, advocate Chacha 5 Mwita who was holding brief for Mr. Sosthenes Mselingwa, counsel for the applicant was present. The applicant's advocate prayed for adjournment of the hearing, and that another date of hearing to be scheduled. Subsequent to that date, the matter before the court was fixed for hearing on 3rd April, 2024. On that date, neither the applicant nor their advocate entered appearance. Thereafter, the matter was re-scheduled for hearing on 15th April, 2024. Yet, both the applicant and her advocate failed to appear in court thereof. Accordingly, the matter was dismissed for want of prosecution. This is evidence of carelessness on the part of the applicant in the prosecution of her appeal. However, I have carefully perused the court records and the same indicates that on 15th April 2024, the matter was scheduled for hearing of the preliminary objection only. Nevertheless, the respondent prayed to abandon his preliminary objection in the absence of the applicant. The said prayer was granted though not expressly recorded and without giving the applicant the right to be heard in that respect. That aside, after withdrawal of the preliminary objection by the respondent, the subsequent order ought to have been to schedule for the hearing of the appeal on a subsequent date. Regrettably, that was not done. Instead, the court immediately dismissed the appeal for want of prosecution; while the appeal was not scheduled for hearing on 15th April, 2024. Certainly, the dismissal of the appeal was granted prematurely, to say the least. The law regarding dismissal orders in our jurisdiction is settled. For instance, the case of Mrs. Fakhria Shamji vs. The Registered Trustees of The Khoja Shia Ithnasheri (Mza) Jamaat, Civil Appeal No. 143 of 2019 (unreported), the Court of Appeal of Tanzania (CAT) stated that; "...guided by the decision in Mr. Lembrice Israel Kivuyo (supra), that dismissal can only be made on a hearing date and not mention../' Similarly, the CAT case of Shengena Ltd vs National Insurance Corporation and Another, Civil Appeal No 9 of 2008 (unreported) held that; "... in our considered view, therefore a case can be dismissed for various, legally recognized grounds when it comes up for hearing not mention... ? Having said so, this application is meritorious based solely on the guidance of the CAT and the same is hereby granted. Additionally, thedismissal order dated 15th April, 2024 in Land Appeal No. 56 of 2023 is quashed and set aside; and the said appeal is re-admitted forthwith. No order as to costs. It is so ordered. DATED at p p ^ ^ p t^ is 10th day of September, 2024. \** u )ci *i vsffigy 5, W m 'm g J ) l. D. MUSOKWA \y // judge Ruling delivered in the presence of the applicant and in the presence of the respondent. I.D. MUSOKWA JUDGE 8