Mbarigu

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA MISC. LAND APPLICATION NO. 81 OF 2023 (Arising from Misc. Land Appeal No. 29 of2023 High Court of Tanzania at Bukoba and Land Appeal No. 89 of 2018 of Karagwe District Land and Housing Tribunal; Originating from Land Case No. 26 of Kyerwa Ward Tribunal) MBARIGU MUSTAFA ZAKARIA...................................... .......APPLICANT VERSUS TUMUSIIME THEOMPISON. ..........RESPONDENT RULING 30th April and 10th May, 2024 BANZI, J.: The applicant has filed this application seeking to restore Misc. Land Appeal No. 29 of 2023 which was dismissed by this Court (Hon. Ngigwana, J.) on 09/10/2023 for want of prosecution. The application was brought under Order XXXIX, Rule 19 and section 95 of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC) and it is supported by an affidavit of the applicant. The respondent through the counter affidavit of Mr. Samwel Angelo, learned advocate contested the application. The brief background of this application is as follows, on 09/10/2023 the appeal was scheduled for hearing before this Court however, neither the Page 1 of 7 applicant nor Mr. Jamal Chamani, learned advocate who drew the petition of appeal appeared before the court to argue the appeal. The Court in its order stated that when Mr. Chamani was informed of the hearing, he denied to have been engaged to represent the appellant in that matter. He informed the Court that, it was Mr. Rogate Assey who was engaged by the appellant to represent him. However, the court in perusing the tribunal's proceedings, it noted that, Mr. Assey who was previously a Chairman of the District Land and Housing Tribunal, had dealt with that dispute at Karagwe District Housing Tribunal and therefore, he could not represent the appellant in the appeal before the High Court. On the way forward, the appeal was dismissed for non-appearance of the applicant and his advocate. For such dismissal, the applicant has knocked the doors of this court again, however, this time seeking for the court to set aside the dismissal order and order for restoration of the appeal so that it may be heard on merit. At the hearing, the applicant appeared in person, unrepresented whereas the respondent was represented by Mr. Samwel Angelo, the learned advocate. The applicant successfully prayed for the matter to be argued by way of written submissions. Page 2 of 7 In his submission, the applicant contended that, when the matter was called for hearing on 09/10/2023, he was at Kayanga Health Centre where he was admitted since 07/10/2023 and he was discharged on 12/10/2023, hence, on the date the appeal was dismissed, he was still in the hospital for medical treatment. He attached a medical chit to support his submission. According to him, with that sickness, he even failed to secure a person to report his sickness since he had no advocate to represent him after Mr. Rogate Assey, whom he had engaged, was rejected by the court after realizing that, he was the one who presided over the matter as the Chairman of the tribunal, hence had interest in that matter. In supporting his submission, he cited the case of Richard M langala and 9 Others vs Aikael Minja and Others [2015] TZCA 260 TanzLII. He prayed for the court to do away with technicalities and readmit the appeal so that, it would be determined on merit. In his reply, Mr. Angelo, apart from adopting his counter affidavit, he argued that, although illness is the sufficient reason for restoration of the dismissed appeal, the document (annexure MMZ-3) attached by the applicant to prove illness is neither authentic nor certified and it is too faint. He further argued that, the name of the patient written on the annexture does not match with the name of the applicant, hence, it creates doubt if it Page 3 of 7 refers to the applicant. Also, the annexture bears no clear date and official stamp. According to him, such uncertainties imply that, the applicant was never attended, admitted nor discharged from the said hospital. Had he been admitted and discharged on the alleged date, he would have annexed original discharge form. Hence, there is no proof to that effect. In his rejoinder, the applicant insisted that, the annexture being issued by the authorized institution, was authentic therefore, the respondent's allegation intends to mislead the court. Concerning the allegations that the name in the annexture did not match his names, the applicant contended that, the names contained in annexure MM'Z-3 are his names and were written according to his NHIF Card. He insisted for the court to invoke overriding principle and do away with technicalities to grant the application sought so that, the matter may be determined on merit. Having considered the submissions of the parties, the issue for determination is whether the applicant has established sufficient reasons for restoration of the appeal to be granted. Order XXXIX Rule 19 of the CPC provides that: "Where an appeal is dismissed under sub-ruie (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 Page 4of 7 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." It is apparent from the cited provisions that, before the court sets aside the dismissal order and re-admit the dismissed appeal, there must be proof from the applicant showing that, he was prevented by any sufficient cause from appearing on the fixed date of hearing. In this matter, the applicant on one hand contended that, he was admitted at Kayanga Health Centre on 07/10/2023 therefore, when the matter was called for hearing on 09/10/2023, he was still at the hospital and he was discharged on 12/10/2023 only to find out that, his case was dismissed for non-appearance. He alleged that; non-appearance was not intentional. On the other hand, although Mr. Angelo agreed that, illness is one of the sufficient reasons for restoration of the dismissed appeal, he claimed that, the applicant has not proved his sickness because the medical chit presented is faint and the name of the patient on the document is different from the name of the applicant. I have carefully considered the affidavit of the applicant with its annexures. It is undisputed that, annexure MMZ-3 is a carbonated copy of Page 5 of7 NHIF claim form which is given to the patient. Normally, the personal particulars written therein including the name of the patient, must match with the name of the patient appeared on NHIF card. The fact that, the form is faint is not a conclusive proof that, the same is not authentic considering that, the annexure is the carbonated copy. Likewise, the fact that, it bears the name of Mbarigu Z. Kamuntu which is slightly different with the name of the applicant, Mbarigu Mustafa Zakaria is not the conclusive proof that, the patient is not the applicant considering that, what is written in the form must conform with what appears in the card. Therefore, looking at these names, I am satisfied that, the applicant and the person in the NHIF form are the same person. Regarding the reason for non-appearance, according to the medical form presented before this Court, the part concerning in patient reveals that, the applicant was admitted at Kayanga Health Centre on 07/10/2023 and discharged on 12/10/2023. Under the prevailing circumstances, I am constrained to agree with the applicant that, he was prevented by illness to attend the Court on 09/10/2023 considering that, health matters in most cases, are not the choices of human beings and when they strike, no one can be held to blame. See the case of Emmanuel R. Maira vs The District Executive Director Bunda District Council [2010] TZCA 87 TanzLII. Page 6 of 7 For those reasons, I am satisfied that, the applicant has sufficiently adduced reasons for failure to attend before the court on 09/10/2023 when the case was dismissed for want of prosecution. In that regard, I grant the application by setting aside the dismissal order dated 09/10/2023 and re­ admitting Misc. Land Appeal No. 29 of 2023. Each party shall bear its own costs. I. K. BANZI JUDGE 10/05/2024 Delivered this 10th day of May, 2024 in the presence of the applicant in person, Mr. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala RMA and in the absence of the respondent. JUDGE 10/05/2024 Page 7 of 7