mohamed iqbal haji another vs john binder 2023 tzhclandd 16815 22 august 2023

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPLICATION No. 213 OF 2023 (Originating from the Order of the High Court of Tanzania Land Division (Dar es Salaam) in Misc. Land Application no. 732 of 2022) MOHAMED IQBAL HAJI......... .................................................1st APPLICANT ABBASI MOHAMED JUMA.............................. .............. 2nd APPLICANT

VERSUS JOHN BINDER.............. ............................................................. RESPONDENT

RULING Date of last 0rder:31/07/2023 Date of Ruling: 22/08/2023 K. D. MHINA, J. By a chamber summons taken under Order IX Rule 3 of the Civil Procedure Code, Cap 33 R: E 2019 (''the CPC"), the applicants, Mohamed Iqbal Haji and Abbasi Mohamed Juma, instituted this application against the respondent, John Binder. The applicants, inter-alia, are seeking the following orders: - i. This Court may be pleased to set aside the dismissal order in Misc. Land Application No. 732 of2022 between Mohamed Iqbal Haji and Abbasi Mohamed Juma versus John Binder. i //' This Court be pleased to grant any other order (s) that it considersjust and convenient to grant. The grounds for the application were expounded in the affidavit, which Yusta Peter Kibuga, the advocate of the applicant, swore in support of the application. The grounds are found in paragraphs 4, 5 and 6 of the affidavit that on the material date, together with another advocate named Caritas Malawa from Leo Attorneys, she was at the Advocates waiting room waiting for the matter to be called. At 09:15 hours, she approached the Court Clerk, who informed them that the matter was already dismissed for non-appearance. She also averred that they did not hear when the court clerk called the case. Therefore, there was no negligence. The hearing proceeded by way of written submissions. Ms. Yusta Kibuga represented the applicants while the

respondent was absent. The efforts to secure his attendance proved futile even after substituted way by way of publication in Mwananchi newspaper dated 27 July 2023. Therefore, the application proceeded ex parte against the respondent. 2 In supporting the application, Ms. Kibuga briefly submitted that in paragraphs 4,5 and 6 of the affidavit, the applicants had shown sufficient reasons for this Court to set aside the dismissal order. That on the date of dismissal, the advocate for the applicants was present but did not hear when the matter was called on for hearing. Therefore, she submitted that there was no negligence on the part of the applicants. Hence, she prayed for the prayers to be granted. Having heard the counsel for the applicants and scrutinize the affidavit, the main issue for determination is whether the applicant has shown sufficient cause for this court to grant his application for restoration. This should not detain me long because, having gone through the applicants' affidavit, I find it quite clear that the counsel demonstrated that she was at the Court on the material date, but she did not hear when the case was called on for hearing. Further, in the circumstances of this matter where there is an affidavit of advocate Caritas Malawa whom she was mentioned in the applicants' affidavit that she was together with the applicants' affidavit, the

applicants deserved to be granted the prayers they sought. That affidavit also proved 3 that the counsel was at the court but did not hear when the case was called on for hearing. Also, the facts indicated that there was no negligence on the part of the respondents because the counsel was at court at the time scheduled for the hearing but, unfortunately, did not hear when the matter was called. In such circumstances, the applicants deserve to be granted the orders they sought in the chamber summons. Consequently, I grant the application by setting aside the dismissal order dated 17 November 2022 and ordering the restoration of Misc Land Application No. 732 of 2022. No order as /o costs. I order accordingly. K, D. NA

JUDGE 22/08/2023 4