maganga kakwaya makuka vs philemon mutashubirwa 2020 tzhclandd 27 12 march 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 48 OF 2019 (From the Ruling of the District Land and Housing Tribunal of Kibaha District at Kibaha in Land Case No. 283 of 2018, originating from Land Application No. 46 of 2010) MAGANGA KAKWAYA MAKUKA (an Administrator of the Estate of the late Charles Alexander Makuka)...........................APPELLANT VERSUS PHILEMON MUTASHUBIRWA................................. RESPONDENT JUDGMENT OPIYO, 3. The dismissal of the appellant's case, Land Application No. 46 of 2010 for want of prosecution and the denial by the trial tribunal to allow the restoration of the same in a Miscellaneous Land Application No. 283 of 2018, has prompted the present appeal against the respondent. The factual background of this appeal dates back to 23rd September, 2010 when the appellant lodged a Land Application No. 46 of 2010. Being a legal representative of the late Charles Alexander Makuka, the appellant sued the respondent in the said suit for invading the deceases land of about 10 acres. The appellant engaged the services of Advocate Aliko Mwaliko and instructed him to pursue the case on his behalf. Unfortunately on the day fixed for hearing, Mr Mwaliko, counsel for the appellant in the suit did not appear. Following his nonappearance, the trial tribunal dismissed the suit for want of prosecution. Upon learning that, his suit was dismissed for want of prosecution, the appellant decided to apply for the restoration of his suit by first applying for an extension of time to do the same of which the trial tribunal allowed his application. However, he did not succeed in his application to set aside the dismissal order for the Land Case Application IMo.46 of 2010 to be restored. Dissatisfied with the reasons given by the trial tribunal in its ruling, the appellant filed a Memorandum of Appeal in this court with three grounds as follows: - 1. That the trial Chairperson erred in law and fact by concluding that the medical report by the counsel Aliko Mwaliko dated 6th August, 2018 is an afterthought without founded grounds. 2. That the trial Chairperson erred in law and fact by ruling that the appellant could have prevented the dismissal. 3. That the trial Chairperson erred in law and fact that the appellant despite having counsel representation was duty bound to attend the case. The appeal was heard by written submissions. Deogratius Mwarabu, learned Counsel appeared for the appellant, while the respondent enjoyed the services of Jackline Rweyongeza. Submitting for the appeal, Mr Mwarabu, insisted that, the trial Chairperson misdirected himself by concluding that the medical report submitted by Advocate Aliko Mwaliko is an afterthought without summoning Dr. Nyangassa who prepared the report to appear before her for clarification, if need be. He insisted that even the respondent himself through his counsel 2 Jacqueline Rweyongeza did not object that fact in their counter affidavit. He cited the case of Christina Alphonce Tomas (as an administratix of the late Didas Kasele versus Saamoja Masingija, Civil Application No. 1 of 2014, Court of Appeal, it was held that:- "7/7 a letter dated I9 hApril, 2016, sent to this court through a fax, Mr M.A Ndayanse, informed the court that he will not be able to attend the hearing from gouts. However, no medical report is annexed to the letter to show the extent o f illness and that is one which will prevent him from appearing in court for the hearing o f the application...as the applicant's counsel failed to show that the sickness he is suffering from is one which could have prevented him from attending the court for the hearing o f the application because there is no medicalsupport, we dismiss the application" Mr. Mwarabu argued that, contrary to the case cited above, in their application at the trial tribunal, Advocate Aliko Mwaliko produced a medical report to support what prevented him from attending hearing. He invited the court to visit also the case of Richard Mlagala & 9 Others versus Aikel Minja & 3 Others, Civil Application No. 160 of 2015, Court of Appeal of Tanzania. On the 2nd ground of appeal, Mr Mwarabu maintained that, it is most likeiy, that if the appellant appeared on the date fixed for hearing, the case could have been adjourned to another date, but the reality remains that the appellant was not in court because he believed his Advocate would appear. If he had the knowledge of the Advocate's illness, then the appellant would have entered his appearance. On the 3rd ground of appeal, it was argued by Mr Mwarabu that, it is true that, the appellant had a duty to attend his case, but he was not informed by his advocate, therefore he presumed that his advocate was in court on his behalf. Replying to the submission by Mr. Mwarabu, learned counsel for the respondent, Jacqueline Rweyongeza maintained that, the chairperson was right to disregard the medical report of Advocate Aliko Mwaliko, dated 6th August 2018, as it was prepared five years after the dismissal order was made on 18th February, 2013. Above all the report is too general, stating that he has been attending the clinic since 2013. It does not specifically show that on the date fixed for hearing of the Land Application No 46 of 2010, on 18/2/2013, the Advocate for the appellant was indisposed. Therefore all the cases cited by the appellant in his submissions are not applicable (see Christina Alphonce Tomas (as an administratix of the late Didas Kasele versus Saamoja Masingija, Civil Application No. 1 of 2014, Court of Appeal, and Richard Mlagala & 9 Others versus Aikel Minja & 3 Others, Civil Application No. 160 of 2015, Court of Appeal of Tanzania). Advocate Rweyongeza went on to argue that, the case at hand is favoured by the decision of Court of Appeal of Tanzania in Tanesco versus Mufungo Leonard Majura and Others, Civil Application No. 94 of 2016 (unreported), where it was held that:- "My reading o f the reason for the delay as contained in the three paragraphs o f the affidavit sworn by Stella Modest Rweikiza as supported by sick chit which Anet Mkinga used to get treated at MuhimbHi National Hospital that has been annexed as annexure 6 to the affidavit.\ I have failed to get convinced, it is indeed a sound ground. The ruling was delivered on 22nd day o f February 2016, whereby she was given excuse from duty(ED) for 7 days meaning it was to last up to 8®March, 2016." As for the 2nd ground, the respondents' counsel argued that it has no merit. The appellant is just trying to rescue the situation by contradicting this court. The same was the submission on the 3rd ground of appeal by Advocate Rweyongeza. She maintained that, the appellant had a paramount duty to attend court as a complainant in this matter with no further notice in absence of his advocate as the matter was fixed for hearing. She thus argued that, the appellant failed to give sufficient reasons for his case to be restored. Therefore his appeal deserves a dismissal. My duty is to determine the merit or otherwise of this appeal. In so doing, I will consolidate all three grounds of appeal and analyse them together. The appellant faulted the trial Chairperson for disregarding the medical report of Advocate Aliko Mwaliko on the ground of it being and afterthought and further that it was not correct on part of the trial chairperson to hold that the appellant was in a position to prevent the dismissal of his suit if he was present on the material date fixed for hearing as he was duty bound to appear despite being represented by his Advocate. I went through the records of the trial tribunal and found the medical report of Advocate Aliko Mwaliko, dated 6/8/2018. The application sought to be restored was dismissed on 18/2/2013 for want of prosecution. Looking at 5 the date of dismissal of the suit (land Application No. 46 of 2010) and the date when the said medical report was produced, one may be tempted as the trial court was, that, the same was an afterthought. However, scrutiny of the report reveals that it covers the condition of the advocate in 2013 when the application was dismissed. The argument that, it could not be an afterthought if it could have been issued on the same dates when the suit was scheduled for hearing is misconceived. It has to be noted that, the document in question is not a medical chit made on the date of treatment, but rather a medical report made on request to detail the condition of the patient at the desired period. The same is made when need arises and it is made from the medical records at the Medical Centre in question. It was not prudent on the part of the tribunal to discredit the same as an afterthought merely based on the dates of its making. It is on 2018 when the proof of advocate's medical condition as of 2013 was called into question. Thus, the medical report prepared in 2018 when it was demanded giving an account for the Advocates' non-appearance for hearing in 2013 due to his medical condition then fully substantiate his non-appearance on the material date. This situation is distinguishable with the circumstances in the case of Christina Alphonce Tomas' case (supra) the application was refused for there being no any medical chit or report that was submitted to prove advocates sickness. Thus, presence of report that shows that the advocate had some medical issues between those dates worth attending clinic for that hindered his attendance should be given credence, unless proved otherwise. Furthermore, it is true under order 9 rule 8 that when a party, applicant for that matter, or his advocate is not in attendance the matter may validly be dismissed for want of prosecution. However, it is also true under order III rule 1 of the same Code that, except where otherwise expressed provided by any law to the contrary, any appearance, application, or act in or to any court required to be made by the party in such court, may be made or done by party in person or by his recognized agent, or by an advocate dully appointed by such party to act or appear on his behalf. But a court has a discretion to direct that such appearance must be made by a party in person. Therefore, as there was no direction by the court for applicant to appear in person, it was justifiable for the applicant to rely on his advocate's appearance on his behalf. Applicant should not be blamed for one encounter of his advocate's absence without his knowledge. In the case of Telecommunications Corp v M/S Terrazzo (1973) LRT 58, it was held that once a party is present either in person or by advocate when the case is called up, that is sufficient appearance. Thus, it was not right for the trial court to over emphasise the appellant's non-appearance in person to refuse him restoration of his previous application for non-appearance of his advocate. For the foregoing reasons, I hereby quash and set aside the trial tribunals decision in Misc. Land application No. 283. Consequently, Land Application No. 46 of 2010 is accordingly restored. I make no order as to costs. Ordered accordingly. M. P. OPIYO JUDGE 12/3/2020