20070608 TZHC Arusha 1

IN THE HICH COURT OF TANZANIA AT ARUSHA ., CIVIL CASE NO. 22 OF 2002 MAYA MAYOKA VIL LACE COUNCIL .................... PLAINTIFF versus TRUSTEES OF TANZANIA NATIONAL PARKS <TANAPA> ............................... : ................. DEFENDANT RU LINC CHOCHA, J. This matter was adjourned on the 27 th March 2007. It was set for hearing on the 7th June 2007. I The date of hearing was agreed upon and set in presence of both learned counsels for both parties.; on the 7th June, Mr. Lundu, working for the plaintiff, applied for extension of time, for hearing of the matter. He said there was communication breakdown between his clients and himself. He had failed to have them appear ' and adduce evidence. That his failure was attributed by change of leadership in the village. He suspected the new village leadership had not been handed over this case. He 1 conceded to have been present on the 7th March 2007 when the case was adjourned f9r hearing to the date occasioning these proceedings. Mr. bjare for the defendant ,resisted the prayer. He said the learned plaintiff's counsel was not serious enough with the case. He had a series of reason, inter alia. I That the learned plaintiff's iadvocate had advanced speculative reasons at most, !1' which impaired I communication breakdown between the plaintiff and himself that has resulted in the present application. The defendant's advocate said. the plaintiff's counsel had in his possession, vide a docuh,ent forming Annex P.4, . Ii 1, addresses of his respective client's Which he could use for ' facilitation of communication. T:here is an evidence that he made use of the same. The advocate further said t~at the plaintiff's counsel had not told this court, the, attempted efforts he employed towards solving the problem connected with communication breakdown. The learned defence counsel apprehended cont_radictions from the plaintiff's counsel's 2 'I iJ ii submission, that there was a change of leadership in the 1 : village, but that there was communication breakdown between himself and his client. .The defence wondered 11 . ii ' how did the counsel become knovvledgeable of the change " I 'I ,, of village leadership if he was not ih touch with his clients. The defence further blaimed the plaintiff's advocate ..J .I for not having a courtsev of informing ,, the defence in advance that the suit could not proceed ' with the hearing . as scheduled. The defence counsel was of a ,, V1iew that the plaintiff's I advocate had not advanced sufficient "! reasons as is the case u/o XVII R. 1 of the Civil Procedure Code Act, to move this ,1 I court to grant an application for an adjournment. The plaintiffs had a mutual obligation to make a <. i follow up of the status of the ' case. ' Their failure to 11 communicate with their advocate :signifies according to I 11 ' the defence, loss of interest to fU(ther pursue the matter. I The plaintiffs failed to present ,1 evidence as of right u/o. XVII R. 1. The defendant's advocate is of the view that 3 I I the plaintiff should be held as having forfeited such a right. He prayed this court to dismiss the plaintiff for failure to prosecute the claim. on his party, the plaintiff's cpunsel in reaction to the defence's submission, said the said annex 4 did not contain I the plaintiff's addresses. He pleaded to have the matter I heard on merits and not knocked out on technicalities because this is the court of justice. I 1, He said the suit, though reasonably old, but has been proceeding smoothly including disposition of preliminary ' issues that cropped up. What constitutes sufficient ~easons for the purposes of warranting adjournment as is the case in the present I ' application, has no clear cut or: marked definition. The ' sufficiency of the reason is in my :view quite subjective, . and will at all times depend on the merits of the matter 1 before the court. The duty of determine whether or not the grounds or reasons advanced amount to sufficient 4 reasons warranting granting a re1'1ef sought should be left . ' to court. , 11, ' I am in a total agreement with the learned defence - 1; counsel that the plaintiff's counsel's grounds submitted to I justify an application for an adjournment that revolve I' under the umbrella of communication breakdown are ' truly speculative. There was not,;evidence to support the allegation that there was leadership ''.change. II .,I The learned plaintiff's counsel admitted to have been , I present when the case was adjo'urned on the 27 th March I, " II 2007, but said his clients were not there and therefore were uninformed. It is this court's conviction that the learned counsel was under obligation to communicate -, the information l , regarding the status of the case to his clients. This budern 11 could not shift to any other ~uthority, otherwise his " presence on the 27 th March 2007, ;which was an acceptable I ,1 appearance legally, could be meaningless. 5 ' As observed correctly by the defence counsel, o. XVII R.1 applies to determine the sufficiency of the grounds for the purposes of granting or otherwise the adjournment. The question before me will be which course to adopt in the event the advanced reasons do not support as in the case now, an application for grant of an adjournment. The defence counsel invites this court to dismiss the plaint for want of prosecution. That the learned plaintiff's counsel is unable to organise his witnesses with a view to proceeding with the suit until today 07/06/2007, and having in mind that the ' subject matter involved, among others, is LAND, I will, as I hereby do, for the purposes of assisting the parties, STRIKE OUT the plaint, not solely on ground of disorganisation that has resulted into failure to prosecute the claim, but also on account that this court's jurisdictional time frame ' to entertain matters involving land disputes is not favourable. 1 will recommend that the plaintiff may refile his claim in a forum with proper and competent jurisdiction to hold 6 l ,/ 11 ·, j ', ] land· disputes as and when i;,e is ready to prosecute the 'c I) same. j f , .., -----,--,:.~ i. N.P.2.CHOCHA -· 11 . •I JUDCE · · : ---· \I'I 08/06/20()7 I . ,,. ' '' ' 1: '1 Ruling delivered this 8th i Jun~ 2901 in presence of Mr. . ; I Lundu Advocate for the plaijntiff:' a~d Mr. Oja re Advocate ,'· !I for the defendant. fi '1 · ·;II1 Each party to bear his costs. , : r lljk. 7