Judgement Land Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI LAND CASE APPEAL NO. 44 OF 2023 (C/F Miscellaneous Land Application No. 234 of 2022 and Miscellaneous Application No. 64 of 2016 in the District Land and Housing Tribunal for Moshi at Moshi) MARIA GODWIN MAWA………............................................ APPELLANT VERSUS BAKARI MAWA……...………………………………………… RESPONDENT JUDGEMENT Date of Last Order : 14.08.2024 Date of Judgement:10.09.2024 MONGELLA, J. The appellant herein filed Application No. 56 of 2015 in the District Land and Housing Tribunal for Moshi at Moshi (the tribunal). On 05.02.2016, the matter was dismissed for his non-appearance. He then sought extension of time to file an application to set aside the dismissal order vide Miscellaneous Application No. 64 of 2016. Following a preliminary objection, Miscellaneous Application No. 64 of 2022 was dismissed for being time barred. This Court overturned the dismissal order and ordered the application to be determined on merit. Page 1 of 13 On 21.10.2022, Miscellaneous Application No. 64 of 20216 was dismissed with costs for non-appearance. The appellant then preferred Miscellaneous Land Application No. 234 of 2022 under Regulation 11(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN No. 174 of 2003 seeking to set aside the dismissal order. The tribunal found the application without merit and dismissed the same. Now aggrieved by the denial to set aside the dismissal order in Miscellaneous Application No. 64 of 2016, the appellant has preferred this appeal on the following grounds: 1. That, the trial tribunal erred in law and fact for failure to consider sickness of the appellant's counsel (Mrs. Zuhura Twalib) that led to her absence and non-appearance as sufficient ground for setting aside dismissal order dated 21st October, 2022 in Application No. 64 of 2016. 2. That, the trial tribunal erred in law for failure to rule that non- appearance of the appellant and her counsel on the date when the trial tribunal ordered dismissal of Application No. 64 of 2016 was unjustified and unprocedural. The appeal was resolved by written submissions whereby the appellant was represented by Mr. Mapembe, learned advocate while the respondent stood unrepresented. Referring to Regulation 11 (2) of GN No. 174 of 2003, Mr. Mapembe averred that the provision allows a party who has previously Page 2 of 13 defaulted appearance and his/her case dismissed for that reason to apply for an order to set aside the said order. He added that it is the trial tribunal that is vested with discretion to grant the said order upon sufficient cause for non-appearance being shown. He alleged that the appellant’s counsel Ms. Twalib advanced sufficient reasons for her non-appearance on 21.10.2022, which was sickness. To emphasize that illness is sufficient reason to set aside a dismissal order, he referred the case of Adinani Salehe and Others vs. Valence Justine Tesha (Land Case Appeal 36 of 2021) [2022] TZHC 11139 (7 February 2022) TANZLII. The learned counsel further claimed that there was proof of illness submitted as Annexture MM-1 which is an NHIF Form 2A used for treatment of NHIF beneficiaries. In that regard, he had the stance that Ms. Twalib complied with the requirement set in the case of Christina Alphonce Tomas vs. Saamoja Masingija (Civil Application No. 1 of 2014) [2016] TZCA 289 (22 April 2016), in which the Court held that proof of sickness must be supported by medical chit. Arguing further, he faulted the trial tribunal for finding that he was the counsel for the appellant and not Mrs. Twalib while she was only holding his brief. On those bases, he faulted the tribunal for erroneously engaging extraneous matters. In his stance, the fact that Mrs. Twalib was on record representing the appellant on "holding brief basis" had no bearing on appearance or non- appearance of the advocate in prosecution of the appellant's case. Page 3 of 13 Submitting further, he contended that it did not matter who came to court to prosecute the appellant's case. That, Mrs. Twalib had full authority to proceed with the matter on behalf of the appellant and at no point in time did the tribunal refuse to conduct proceedings with Mrs. Twalib in coram simply because the one whom she was holding brief was absent. With respect to the 2nd ground, Mr. Mapembe referred to Regulation 13(2) of GN No. 174 of 2003 arguing that the provision provides for four (4) conditions to be complied with before the tribunal is empowered to order dismissal of an application for non- appearance. Cementing his point, he referred the case of Adam Mohamed Zuberi vs. Kulwa Mashaka (Civil Appeal No.175 of 2018) [2022] TZCA 80 (25 February 2022), which he claimed to have expounded on the four conditions. Arguing further, he contended that according to the position of the Court of Appeal in Adam (supra) which the trial tribunal was bound by, the trial tribunal should have first summoned the appellant and ask her to fend for herself and if she refused then it would have been justifiable to dismiss her application. For failure to do that, he faulted the tribunal for dismissing Application No. 64 of 2016. Still showing that the tribunal had no justification to dismiss the Application, he claimed that it was the first time the then counsel for the appellant defaulted appearance and the appellant herself was not given the opportunity to fend for herself and in turn unreasonably refuse to do so. Page 4 of 13 The respondent opposed the appeal. Replying to the 1st ground, he contended that the appellant failed to prove that his counsel was sick on the material date of 21.10.2022 when the application was scheduled for hearing. He maintained such argument on the ground that there was no valid proof of the illness of the appellant's counsel. Discrediting the document attached as annexure MM-1 in the appellant’s affidavit at the tribunal, he alleged that the same was a mere document from Health Insurance (National Health Insurance Fund) and not a medical report from Uchira dispensary. Further, he challenged annexure MM-1 for not being an original document and not signed by the medical officer in charge or any other authorized officer of Uchira dispensary. He added that the same also lacked official stamp of the alleged Uchira dispensary, thus lacking proof of endorsement. While acknowledging that sickness is a good cause for none appearance as held in Adinani Salehe and Others vs. Valence Justine Tesha (supra), the respondent maintained that sickness must be proved by medical report. He referred to Section 110(1) and 112 of the Evidence Act [ Cap. 6 R.E 2022] under which it is provided that a person who alleges the existence of certain facts is required to prove the same. In the premises, he had the view that the appellant ought to have proved that her counsel was sick. He fortified his averment with the case of Martin Nicas Manya vs. Stivin Gati Mwita & Another (Misc. Land Application 224 of 2021) [2022] TZHCLandD 150 (22 March 2022) TANZLII. In addition, he alleged that absence of original documents or certified copies, office Page 5 of 13 stamp and signatures mean there is no proof of endorsement rendering the allegation that the appellant’s counsel was sick not proved, Replying to the 2nd ground, the respondent found the tribunal decision being legal, procedurally correct and justifiable. He based his argument on the assertion that it is undisputed that the appellant and her advocate did not appear before the tribunal when the application was scheduled for hearing and without any notice, which can be properly verified and proved through the trial tribunal record. Further, he contended that the appellant's advocate did not appear in the said application, but one advocate Zuhura Twalib appeared as a counsel who held brief for Mr. Mapembe. He challenged that advocate Twalib never addressed the trial tribunal that she held the brief with instruction to proceed with the hearing. In the circumstances, he was firm that it was proper for the tribunal to dismiss the said application for non-appearance of the appellant and her counsel, Mr. Mapembe. The respondent further contended that since the appellant preferred this application, he had the duty to attend tribunal sessions and there was no need to have her summoned by the tribunal. He cemented his averment with the case of Julius Fanuel Mollel vs. Samwel Simel Laizer & Others (Civil Application No. 78/02 of 2023) [2023] TZCA 17845 (15 November 2023) and Abdallah Juma Page 6 of 13 Kambale vs. Noradi Tiliko Mongelwa (Civil Appeal No. 231 of 2018) [2023] TZCA 17730 (5 October 2023) TANZLII. Concluding, he averred that the tribunal was correct to dismiss the application since the appellant acted negligently and there was no sufficient reason adduced to set aside the dismissal order. He maintained his position that Application No. 64 of 2016 was dismissed for non-appearance of the applicant and not non- appearance of the advocate himself. In the premises, he prayed for this Court to find that there is no sufficient reason to set aside the dismissal order before the trial tribunal and disallow the appeal with costs. I have keenly considered the grounds of appeal, the submissions of both parties and the tribunal record. As stated earlier, the appellant herein is challenging the dismissal of his application, that is, Misc. Application No. 234 of 2022, for restoration of Miscellaneous Application No. 64 of 2015, which was dismissed for his non- appearance. With respect to the 1st ground, Mr. Mapembe challenged the dismissal order for the reason that the tribunal did not consider Ms. Twalib’s illness as sufficient reason to restore the application, despite her annexing the NHIF form to prove her hospital attendance. On his part, the respondent insisted that the illness was not proved as the form attached was not a medical report thereby not sufficing to prove that she was sick. The respondent further claimed that Ms. Page 7 of 13 Twalib was not the advocate representing the appellant, but was holding briefs for Mr. Mapembe. Sickness has always been considered as sufficient ground for restoration of a dismissed suit. However, the same ought to be proved. This was well expounded in the case of Christina Alphonce Tomas vs. Saamoja Masingija (supra) whereby the Court of Appeal stated: “The Court has always discouraged adjournments on grounds of sickness not supported by medical proof. The learned advocate is aware or ought to be aware that the Court has to have evidence to support grounds for an adjournment. We totally discourage the idea of seeking adjournments not supported by concrete proof that they are genuine applications.” See also; Sabena Technics Dar Limited vs. Michael J Luwunzu (Civil Application No 18418 of 2022) 2023 TZCA 17852 (16 November 2023) TANZLII; Murtaza Mohamed Raza Virani & Another vs. Mehboob Hassanali Versi (Civil Application No. 448 of 2020) [2023] TZCA 6 (7 February 2023) TANZLII. Upon perusing the tribunal record, I found that indeed Ms. Twalib’s affidavit supported Miscellaneous Application No. 234 of 2022 in which the appellant sought to set aside the dismissal of Application No. 64 of 2016. She pleaded illness as the cause for her failure to appear for the hearing fixed on 21.10.2022. She also annexed NHIF Form 2A, as annexure MM-1, to prove that she was attended treatment at Uchira dispensary on the material day. It is also Page 8 of 13 apparent on record that Ms. Twalib held the brief for Mr. Mapembe on various instances. One of such days includes 17.10.2022 when the tribunal fixed the matter to be heard on 21.10.2022. At this point, I would like to point out that the fact that Ms. Twalib informed the tribunal that she was holding brief for Mr. Mapembe sufficed to imply that Mr. Mapembe was responsible for the case. However, this does not mean that her attendance on the respective date would not be welcomed although not expected. There is also a possibility that she would have held instructions to proceed as she did indicate in her affidavit at the tribunal that she was supposed to enter appearance and prosecute the case on the material date of 21.10.2022. With regard to proof of illness, having observed annexure MM-1, it was a copy of NHIF Form 2A. There is no doubt that the said form is indeed used by hospitals in treatment of NHIF beneficiaries. However, as argued by the respondent, the annexed form was a photo copy and uncertified as true copy of the original. It was also not stamped by the alleged attended dispensary. In that respect, I am of the view that the said form lacked evidential value, thus did not suffice to serve as a medical chit to prove the alleged illness. There ought to have been an actual report from a medical officer indicating that Ms. Twalib was attended at Uchira dispensary, in the circumstances. I do acknowledge that sickness is a personal matter and the sick person is in the best position to clarify on his or her state. This was Page 9 of 13 well expounded in John David Kashekya vs. The Attorney General, Civil Application No. 107 of 2012, CAT (unreported) and Murtaza Mohamed Raza Virani & Another vs. Mehboob Hassanali Versi (supra). However, I insist that proof of illness ought to be provided to substantiate the claims. In the matter at hand, I find no concrete proof provided. The 1st ground is therefore found to lack merit and dismissed accordingly. With respect to the 2nd ground under which the appellant alleges failure by the tribunal to adhere to Regulation 13 (2) of GN No. 174 of 2003, I have observed the relevant regulations. The regulation provides instructions with respect to non-appearance of an advocate for two consecutive days. The provision states: “(2) Where a party's advocate is absent for two consecutive dates without good cause and there is no proof that such; advocate is in the High Court or Court of Appeal. The Tribunal may require the party to proceed himself and if he refuses without good cause to lead the evidence to establish his case, the tribunal may make an order that the application be dismissed or make such other orders as may be appropriate.” The above provision was well interpreted by the Court of Appeal in Adam Mohamed Zuberi vs. Kulwa Mashaka (supra), whereby it stated: “It is our view however that, for the trial tribunal to make an order under the above provision, four conditions must be cumulatively established. One, Page 10 of 13 the party's advocate must have defaulted to appear for the two consecutive days. Two, the non- appearance should be without good cause. Three, there should have no proof that the said advocate is appearing at a superior court. Four, the party himself must have been requested to fend himself and unreasonably refused.” The order by the tribunal was in no doubt issued under Regulation 11(1) (b) of GN No. 174 of 2003 which states: “(b) Where the applicant is absent without good cause, and had received notice of hearing or was present when the hearing date was fixed, dismiss the application for non-appearance of the applicant.” However, I find the contention herein is in relation to failure by the tribunal to observe Regulation 13(2) as the appellant was represented by an advocate. It appears that Mr. Mapembe represented the appellant although he sent other advocates to hold his brief in his absence. I cannot term his absence as clear indication that the appellant was not represented because, his learned sister Ms. Twalib held brief for him multiple times and at one time Mr. Charles Mwanganyi held his brief. In the premises, the appellant was represented and as such, Regulation 13(2) should have been applied. Since the appellant and his advocate were absent on the date fixed for first hearing, the appropriate measure was to adjourn the matter. If on the next hearing the appellant would have appeared in absence of his advocate, then the tribunal would have required Page 11 of 13 the appellant to proceed without an advocate and if not, then the matter would be dismissed. I have also considered the argument that since Mr. Mapembe did not enter appearance in person then the appellant was not represented. Even if I decide to agree with the tribunal Chairman’s view, the dismissal under Regulation 11(1) (b) of GN No. 172 of 2003 serves in situations where the appellant would have been present on the date when hearing was fixed or would have been notified of the said hearing. Denying that the appellant was represented would mean that there ought to have been proof that the appellant was duly notified of the hearing date. I do agree that the appellant as a party has a duty to follow up on his case and is expected to do so. This was emphasized by the Court of Appeal in the case of Lim Han Yung & Another vs. Lucy Treseas Kristensen (Civil Appeal 219 of 2019) [2022] TZCA 400 (28 June 2022), whereby the Court stated: “We think that a party to a case who engages the services of an advocate, has a duty to closely follow up the progress and status of his case. A party who dumps his case to an advocate and does not make any follow ups of his case, cannot be heard complaining that he did not know and was not informed by his advocate the progress and status of his case. Such a party cannot raise such complaints as a ground for setting aside an ex parte judgment passed against him.” Page 12 of 13 See also; Abdallah Juma Kambale vs. Noradi Tiliko Mongelwa (supra). It is evident on record that this matter took several rounds in court corridors. After the same was ripe to proceed, the appellant never entered appearance in person. However, owing the circumstances of this case, whereby the same was an application for restoration of the dismissed case, the appellant’s appearance was not mandated as he had engaged an advocate. In the premises, the tribunal ought to have considered the non-appearance of the appellant in terms of Regulation 13 (2) of GN 174 of 2003, to see whether the advocate did not enter appearance for two consecutive times and whether the rest of the conditions were met as well. Unfortunately, this was not done. In the foregoing observation, I hereby find the appeal having merit with respect to the 2nd ground. Consequently, I quash the decision in Misc. Land Application No. 234 of 2022. I also set aside the dismissal order issued by the tribunal in Miscellaneous Land Application No. 64 of 2016 and order the application to be heard on merits. Considering the nature of the application and the outcome thereof, I make no orders as to costs. Dated and delivered at Moshi on this 10th day of September, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 13 of 13