20151215 TZHC Mwanza

):. I' IN THE HIGH COURT OF TANZANIA ATMWANZA LAND CASE APPEAL NO. 70 OF 2014 (From the order of the District Land and Housing Tribunal of Mwanza in Misc. Application 268B $ 268 of 2013) MAISHA YOMBO ..............................•.... ~ APPELLANT VERSUS HERMAN SHABAN!. ............................ RESPONDENT JUDGMENT OF THE COURT 10/12/2015&15/12/2015 GWAE, J The. appellant filed this appeal following an order dated 4th July 2014 of District Land and Housing Tribunal of Mwanza at Mwanza dismissing the appellant's Misc. Land application No.268 B of 2013. The appellant's petition of appeal is comprised _of three grounds of appeal, namely, 1. That, the trial tribunal Chairman misdirected himself for failure to notice that the Misc. Appl. No, 268B/2014 was filed for the purpose of seeking leave to make application to set aside exparte order made in Land ; l"Y'' ~ Application No. 268B/2014 which was dismissed on i1il11rt--:~s;-· (_~ 7.5.2013. 1 ..,_ 2. That, the trial Chairman prejudiced the applicant for failure to afford him an opportunity of being heard. 3. That, the trial Chairman was biased in his findings as the appellant's (sic) was with counter affidavit by the respondent to allow interparties hearing. The appellant and respondent were represented by Mr. Njelwa (adv) and Mr. Sifael (adv) respectively, when the matter was fixed for hearing, Mr. Sifael instantly conceded to the appeal while Mr. Njelwa sought for grant of the appellant's appeal with no order as to costs. I am now duty bound to determine this appeal notwithstanding that the same was not objected by the respondent in order to ascertain if the same is meritorious or otherwise, looking at the trial tribunal record, it is vividly observed that the Misc. Application No. 268 B for setting aside a dismissal order dated 6 th May 2013 (Not 7.5.2013 as wrongly depicted by the appellant in his petition of appeal) vide Land Application No.268 of 2012 and not of 2013 as _ appearing or wrongly indicated by the appellant As to the 1st ground of appeal, it is evidently clear that Misc. Appl. No.268 B of 2012 had no its own file in other words the application to set aside was attached to the one dismissed for want of- prosecution, this was wrong on the part of the DLHT's registry, how can a new application be filed in a no longer existent case}11JHJlif~;_ · / file, the answer is negative. &/ ! :1 I I 2 J., However looking at the nature of the DLHT's order dismissing the Misc. Application No. 268B of 2012, to my view, that was not appealable, an order dismissing an application or any civil case for want of prosecution, is not appealable as the only remedy available for an aggrieved party is to file an application for restoration of the same (an application for setting aside dismissal order) and not to appeal as was the case here. The appellant defaulted appearance on 4.7.2014 while Mr. Sifael appeared for the respondent. In this situation the matter was dismissed under order lx rule 8 of CPC, hence if he had good cause for his previous non-appearance he could have filed the application before the same tribunal and this is by virtue of order ix rule 9 of the same Act which provides and I quote:. "9.-(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside and, if he satisfies the court that there was sufficient cause for his non-appearance wheh the suit was called on for · hearing, the court shall make an order setting aside the dismissal upon such terms as to costs .. " In our present case, the appellant and his agent were not present however in order to dismiss the matter for want of appearance the same should be coming for hearing and not for mention or any related pre-hearing/ trial business such as ensuring pleading ffl{/~f"2) ~p! 3 ,. the dismissal order to my view was therefore wrong as the same was prematurely made, unless the matter had been pending in court for more than 3 years without trial commencement where in that situation the matter ought to be struck out pursuant to order xvii rule 5 of CP. In our case the trial tribunal order was premature and the same is hereby reversed and proceedings to commence where it ended on 4/7/2014 as no such order was made so that the same could be fixed for hearing of the matter on merits. Having determined the 1st ground of appeal, I find myself not bound to be detained in other remaining grounds, suffice to say that this appeal has merit to that extent above. Before concluding writing this judgment I would wish to point out my o ~servation in the trial tribunal order that 'there cannot be Misc. Application to set aside a dismissal where there is no main case pending in court {see para 2 of page one of the typed order subject of this appeal), this holding, to my view, should be expunged from the record due to an obvious reason that, the position apprehended by the learned trial Chairperson, is only rightly applicable 1n applications for interlocutory/ interim pr~yers only and not in applications for setting dismissal orders to restore dismissed suits/ main applications. That said, this appeal is allowed, in the circumstances of the case, particularly, concession on the part of the respondent, no order as to costs is made, each party shall bear its own costs.;1ifj}lfJ;·f:\f~~---.. 1,.,.1t /~ . 4 t~L--- . It is so ordered. ' •♦ • • •· 5