msagala pagi zilihona vs pagi bujiku 2020 tzhccomd 27 29 may 2020

IN THE HIGH COURT OF TANZANIA (IN THE DISTRICT REGISTRY)

AT MWANZA HC MISC. CIVIL APPLICATION NO. 17 OF 2020 (Arising from Civil Appeal No.25 of 2019) MSAGALA PAGI ZILIHONA..................................... APPLICANT

VERSUS PAGI BUJIKU.....................................................RESPONDENT

RULING Last order: 25.05.2020 Ruling date: 29.05.2020 A.Z.MGEYEKWA, J This is an application for setting aside the dismissal order made by this court made on 27th February, 2020, and readmission of Civil Appeal No. 25 of 2019. The application is brought under Order XXXIX Rule 19 of the Civil Procedure Code Act, Cap.33 [R.E 2019]. The application is supported by an affidavit of Yonna Gervas Shekifu, learned Advocate for the applicant and contested by a counter affidavit of Erick Katemi Sakila, learned Advocate for the respondent. The application was argued by way of written submission whereas, the applicant filed his written submission 7th May, 2020, he complied with the court order but the respondent did not file a reply therefore this court proceeded to determine the application exparte against the respondent. It was Mr. Shekifu, learned counsel who started the ball rolling. Having adopted the affidavit supporting the application the learned counsel submitted that they have filed their application regarding dismissal order. He added that the when the matter was called for hearing on 27th February, 2020, both parties were present in court and he managed to prosecute the Land Appeal No,42 of 2019 before this court and when this matter in Civil Appeal No.25 of 2019 was called for hearing the learned Advocate for the applicant was with his client trying to explain his client what

transpired to keep him abreast with the events that had occurred before he arrived at the court premises. 2 He went on to state that he was in his chamber waiting for hearing Civil Appeal No.25 of 2019 but came to learn that the matter was dismissed for non appearance. The learned counsel for the applicant insisted that he was present in court corridors and did not hear when the matter was called up for proceedings before Hon. Rumanyika, J. He continued to submit that he has no record of absenteeism and was interested to prosecute the main appeal. He fortified his submission by referring this court to the case of Shocked & Another v Goldschmidt and Others [1998] 1 All ER372. He went on to state that it is the practice of the court that matters be determined on merits. To support his submission he cited the case of Fredrick Selenga & another v Agnes Masele [1983] TLR 99 and Mwanza Director MIS New Refrigeration Co. Ltd v Regional Manager of TANESCO Ltd & another [2006] TLR 335. He added that the respondent will not be prejudiced in any way if the appeal is readmitted and heard on merits. In conclusion, he prays for this court to set aside the dismissal order made on 27thth February, 2020, and restore the main appeal with respect to Civil Appeal No. 25 of 2019 and proceed to determine the same on merits. 3 I have considered the learned counsel for the applicant's argument for the

application. It is settled law that an applicant seeking to set aside a dismissal order of the court dismissing any suit, appeal or application for want of prosecution, he must furnish the court with sufficient reasons for nonappearance when the matter was called on for hearing. It is evident from the affidavit supporting this application that the learned counsel for the applicant's failure to appear when the matter was called on for hearing as a result of his absence; that he was in court premises but he had another matter before the same Judge in respect to Land Appeal No.42 of 2019 and the matter was heard and parties argued their appeal. Immediately thereafter he was informing his client what transpired in during hearing of the said appeal. He came to learn that the Civil Appeal No.25 of 2019 was dismissed for want of prosecution. I have weighed the submission for the application as presented to me by Mr. Shekifu. I think the applicant's counsel has sufficiently explained the reason for not appearing in court when his case was dismissed for want of prosecution. I have reached that conclusion having considered; among other things; the conduct before the 4 dismissal order, there is no record that the applicant's Advocate or the applicant missed any other court scheduling concerning Civil Appeal No.25 of 2019. In the case of Shocked & Another (supra) as cited by the learned

counsel for the applicant it was stated that the applicant's conduct before the alleged non-appearance should be taken into consideration in the application of this nature. I have also considered the fact that it is in the interest of justice and the practice of this court that, unless there are special reasons to the contrary, applications are determined on merits as it was held in the case of Fredrick Selenga & another (supra). I have also considered the fact that the respondent would neither be prejudiced nor suffer any irreparable injury by the grant of this application as it was held in the case Jesse Kimani v McCornel and another [1966] EA 547. In view of the above, on a balance of probabilities, I think the applicant has provided sufficient cause why counsel did not enter appearance when the case was called on for hearing. In the upshot, the Civil Appeal No. 25 of 2019 be restored to the register for continuation from where it stopped when it was dismissed for want of prosecution. For the avoidance of doubt, the circumstances of this application are such that there should be no order to costs. Order accordingly. Dated at Mwanza this date 29th May, 2020 A.Z.MGtYEKWA

JUDGE 29.05.2020 Ruling May, 2020 via audio teleconference, and both parties were remotely present. A.Z.MGtYEKWA

JUDGE 29.05.2020 6