mkongowo trading company limited two others vs azania bank limited 2023 tzhc 22541 31 october 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 91 OF 2023 (Arising from the High Court of Tanzania-Dar es Salaam District Registry, in Misc. Civil Application No. 328 of2022) MKONGOWO TRADING COMPANY LIMITED............................. 1st APPLICANT PETER RODRICK NGOWO............................................................. 2nd APPLICANT ISSA ALLY MCHERECHETA............................................................ 3rd APPLICANT VERSUS AZANIA BANK LIMITED................................................................... RESPONDENT RULING 31st July, & 31st October, 2023 BWEGOGE, J. The applicants herein above named instituted an application herein praying this court to set aside the dismissal order entered by this court on 09th February, 2023 in Misc. Civil Application No. 328 of 2022 and allow the i matter to proceed on merit inter-partes. The application has been brought under the provision of Order IX, rule 3 and section 95 of the Civil Procedure Code [Cap.33 R. E. 2019] and supported by the affidavits of Peter Ngowo, the 2nd applicant herein who is also the principal officer of the 1st applicant; Issa Ally Mcherecheta, the 3rd applicant herein and Ms. Catherine Lyasenga, the applicants' counsel. In substance, the affidavits deponed by the above-named deponents bear the facts as follows. The applicants herein through the service of Ms. Catherine Lyenga, learned advocate, filed an application for extension of time to set aside the exparte judgment delivered against them in Misc. Civil Application No. 328 of 2022 by this Court. The said application was scheduled for hearing on 12 December, 2022. However, the case could not proceed with hearing as the applicants informed the court that their advocate was on maternity leave. The case was adjourned for hearing on 9th February, 2023. On the respective date scheduled for hearing, the applicants and their advocate defaulted to appear in court. The grounds for non-appearance deponed in the affidavits filed hereto are that, the 2nd applicant was sick suffering from acute coronary syndrome and hepatitis; the 3rd applicant travelled to Lindi region to attend the burial proceedings of his father; and 2 the applicants' counsel, was still on maternity leave. Following the non- appearance of the applicants, the case was dismissed. Hence this application. The applicants herein were represented by Ms. Catherine Lyasenga, learned advocate, while the respondents enjoyed the service of Mr. Endael Mziray, learned advocate. This application was argued through written submissions. In substantiating the application herein, Ms Lyasenga amplified the facts deponed in the affidavits supporting the application herein. She submitted that she commenced maternity leave from 22nd December, 2022 to 22nd March, 2023. That the case was scheduled for hearing on 09th February, 2023 while she was still on maternity leave. Further, the counsel submitted that the 2nd applicant who used to attend court sessions, on particular date the case was brought for hearing he was seriously sick, suffering from acute coronary syndrome and hepatitis. Likewise, the counsel submitted that on the respective date set for hearing of the case, the 3rd applicant was bereaved of his biological father; hence, he attended the burial proceedings of the same. 3 On above accounts, the counsel asserted that the applicants were prevented to appear in court on the date scheduled for hearing for reasons beyond their control. Hence, this court should allow the application for restoration of the case. The counsel cited the case of Richard Mlagala & 9 Others vs Aikael Minja & 3 Others, Civil Application No. 160 of 2015 [2015] TZCA 260 to bring her point home. And, the counsel submitted that the provision of Order IX, rule 3 of the Civil Procedure Code, empowers this court to set aside dismissal order for non-appearance of the applicant, if good cause is furnished, the requirement which she has duly discharged. In reply Mr. Mziray vehemently contested the application herein. He submitted that, Order IX Rule 3 of the Civil Procedure Code invoked by the applicants, enjoins this court with discretional powers to set aside the dismissal order upon the applicants furnishing good cause for non- appearance. The counsel expounded that what amount to good cause is any reasonable cause which prevented the applicants from pursuing their action within the scheduled time. In buttressing his point, the counsel cited the cases; Kamwai Enterprises Limited vs. Kinondoni Municipal Council 4 (Misc. Civil Cause 638 of 2021) [2021] TZHC 6486 and lumanne Hassan Bilingi vs. Republic, Criminal Application No. 23 of 2013, CA (unreported). Further, counsel contended that the reasons advanced by the applicants as deponed in their affidavits are not sufficient cause to warrant grant of the restoration order. That all applicants herein have not brought convincing evidence to prove that their non-appearance were for reasonable cause. The counsel prayed this court to dismiss the application herein with costs. Now, the issue before this court is whether the application herein is merited. The court is enjoined with discretional power to set aside the dismissal order for sufficient cause in terms of the provisions of Order IX rule 3 of the Civil Procedure Code. In fact, furnishing sufficient cause for non-appearance is a sine quo non for grant of restoration order. See the cases; Sadru Mangaiji vs. Abdul Aziz Lalani & 2 Others (Commercial Application No. 126 of 2016) [2016] TZHCComD 34 and Mwidini Hassani Shila & 2 Others vs. Asinawi Makutika & 4 Others, Land Appeal No. 04 of 2019 [2021] 5 As aforementioned, it is deponed in the affidavits supporting the application herein that on the date fixed for hearing, the applicants' counsel, was on maternity leave which started from 22nd December, 2022 to 22nd February, 2023. On same vein, the 2nd applicant who is the principal officer of the 1st applicant failed to appear due to sickness; and the 3rd applicant was in Lindi region for burial ceremony of his father. Therefore, on the above premises, it was deponed that the non-appearance was outside the applicants' control. I have anxiously attended the affidavits and counter affidavits filed by the parties herein and arguments made in this court. It is common ground that the applicants were represented by an advocate who is an officer of this court. The same, it was deponed, had a maternity leave; hence, missed two hearing sessions. Strangely, she failed to file notice of her long absence in court. In the first session, this court was lenient to adjourn the case, but on the 2nd scheduled session, the non-appearance of all the applicants herein, constrained this court to invoke its control over the proceedings. It is strange that taking into consideration of the number of the applicants herein, the company inclusive, there was no mechanism set by the applicants for the follow up of the case. The notice of absence would have constrained this 6 court to adjourn the case. Adjournments are made for reasonable cause. On respective date, there was no reasonable cause to constrain this court to adjourn the case. It must be born in mind that the applicants were alive to the fact that the case was scheduled for hearing. I am alive with the fact that the applicants' counsel cited the case of Richard Mlagala & 9 Others vs. Aikael Minja & 3 Others (supra) to bolster her argument in that ill health is sufficient ground for setting aside the dismissal order. Upon scrutiny, I found that the respective case is distinguishable from this case. In that particular case, the court was satisfied that the appellant was prevented to file defence within time for reason of sickness. It is not the case herein. It suffices to point out that the circumstances of this case don't fit in the case invoked by the applicants' counsel to validate her argument. Therefore, in view of the foregoing, I am in all fours with the counsel for the respondent in that the applicants herein and their advocate failed to advance sufficient cause for their non-appearance in court on the date scheduled for hearing. 7 For the foregoing reasons, I find the application herein bereft of merit. Consequently, the application herein is hereby dismissed. I so rule. Dated at Dar es Salaam this 31sl October, 2023. 8