Land Case 324 of 2023 scnd 13

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND CASE NO. 324 OF 2023 MCHAMUNGU KIRAMA NGOWI............................... PLAINTIFF VERSUS MAY MOSI NDUNGURU.................................................. 1stDEFENDANT CRDB BANK PLC............................................................. 2ndDEFENDANT NUTMEG AUCTION MART...............................................3rdDEFENDANT DR. SEFU GEORGE KITONKA................................ 4THDEFENDANT RULING Date of last Order: 10/09/2024 Date of Ruling: 10/09/2024 LALTAI KA, J. The Plaintiff herein MCHAMUNGU KIRAMA NGOWI instituted this against the Defendants praying for judgement and decree against ALL defendants jointly and severally as follows: (i) Payment of Tsh. 500,000,000/= as compensation for the wrongs committed by the Defendants to the Plaintiff. Page 1 of 6 (ii) A declaratory order that the property mortgaged to the 2nd Defendant by the 1st Defendant described as Plot No. 115, Block "6" Bunju A area, Kinondoni Municipality is a matrimonial property. (iii) A declaratory order that the entire process of mortgaging and auctioning the property disbursement of the loan from the 2nd Defendant to the 1st Defendant is unlawful and illegal. (iv) A declaratory order that the entire process of a public auction and auctioning the property described as Plot No. 115 Block "6", Bunju A with Certificate Number 65896, Land Office Number 217662 within Kinondoni Municipality, Dar es Salaam city was illegal. (v) A declaratory order that the eviction process was conducted maliciously with ill motives hence illegal and unlawful. (vi) A declaratory order that the 4th Defendant is a trespasser and be ordered to vacate the matrimonial home described as Plot No. 115 Block "6" Bunju A with Certificate Number 65896, Land Office Number 217662 within Kinondoni Municipality, Dar es Salaam city. (vii) Payment of general damages as may be determined by this court (viii) Cost of the suit to be borne by the Defendant (ix) Any other order(s) or relief(s) as the honourable Court may deem fit to grant. When the suit was called for final PTC and framing of issues on 16/08/2024, representation by counsel was as follows: Mr. Patrick Page 2 of 6 Kaheshi, learned Advocate, appeared for the Plaintiff. Ms. Vaines Mola appeared for the 2nd Defendant while also holding brief for Mr. Richard Kimaro Counsel for the 1st Defendant. My attention was drawn to an order for proceeding expar-te against the 3rd Defendant. As for the 4th Defendant Ms. Winfrida Hombee entered appearance albeit as a brief holder for Mr. Onesmo Stambuli, learned Advocate who had granted her leave to proceed. It should be noted that all Counsel exhibited uttermost diligence, professionalism and expertise. As a result, the issues formulation exercise went as smoothly as it could. Inspired by that level of enthusiasm among Counsel the suit was adjourned for continuous hearing on the 9th to 10th of September 12: 00 to 13:30 daily. The learned Advocates were informed that such scheduling was akin to the backlog backstopping exercise going on with regards to case files from 2023. When the 9th of September finally arrived neither Mr. Kaheshi nor his client entered appearance. This court adjourned the matter in anticipation that the Plaintiff would appear on the next day that is the 10th of September 2024. On the 10th of September 2024, Counsel representation was as follows: Mr. Richard Kimaro appeared for the 1st Defendant, the 1st Page 3 of 6 Defendant appeared in person. The 2nd Defendant enjoyed the legal services of Ms. Vaines Mola & Ms. Diana Jackson, learned Advocates. The expar-te order against the 3rd Defendant was maintained while the 4th Defendant enjoyed the legal services of Mr. Onesmo Stambuli, learned Advocate. Mr. Kimaro learned Advocate for the second Defendant, with concurrence of his fellow Advocates, informed the court that the suit had been scheduled for hearing and that the first, second, and fourth Defendants were all prepared. He referred to the records, which showed that the case was set for continuous hearing on the 9th and 10th of September. However, Mr. Kimaro pointed out, the plaintiff had not appeared and no information regarding their absence had been provided. He then prayed for the matter to be dismissed under Order IX Rule 5 of the Civil Procedure Code, Cap 33 R.E. 2019. This court is mindful of the principles underpinning Order IX Rule 5 of the Civil Procedure Code (supra), which permits the dismissal of a suit where a plaintiff fails to appear without sufficient cause on the scheduled date of hearing. In the present case, despite the court's indulgence in adjourning the matter to provide the Plaintiff with an Page 4 of 6 additional opportunity to appear on the second scheduled day, neither the Plaintiff nor his counsel attended the proceedings. Additionally, no reason or explanation has been submitted to the court for their absence. The diligent participation of the Defendants and their counsel, coupled with the lack of prosecution by the Plaintiff, leads this court to the conclusion that continuing to keep this suit active would be unjust to the Defendants who have been prepared to proceed. The Plaintiff's failure to appear on both scheduled hearing days amounts to a lack of interest in prosecuting the matter. In the often cited case of Tanganyika Motors Limited vs Transcontinental forwarder Limited (Civil Appeal 44 of 1995) [1996] TZCA 36 (30 May 1996). The Court of Appeal of Tanzania upheld this Court's decision (Mackanja J. as he then was) to dismiss the suit for want of prosecution. Considering the above, this court is satisfied that the requirements for dismissing the suit under Order IX Rule 5 of the Civil Procedure Code have been met. Accordingly, the suit is hereby dismissed for want of prosecution. Page 5 of 6 It is so ordered. Court: Ruling delivered this 10th day of September 2024 in the presence of Mr. Richard Kimaro Counsel for the 1st Defendant, Ms. Vaines Mola & Ms. Diana Jackson, learned Advocates for the 2nd Defendant and Mr. Onesmo Stambuli, learned Advocate for the 4th Defendant. Page 6 of 6