MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 675 OF 2023 (Arising from Land Appeal No. 341/2023) MSAMA PROMOTIONS...........................................APPLICANT VERSUS THE REGISTRAR OF TITLES..............................RESPONDENTS RULING Date of Last Order:06/05/2023 . Date of Ruling: 31/5/2024 , S.D. MWAIPOPO, J: The Applicant herein, Msama Promotions has filed an Application against the Registrar of Tittles, the Respondent, praying for the court to; a) set aside the dismissal order made on 29th day of September 2023 by Hon. Mhina, J in Land Appeal No. 341/2023. b) order restoration of the Application and appoint a date to proceed with the case on merit. c) order that costs be in due cause. d) Issue any other orders/reliefs that this honorable court may deem fit to grant. The Application has been brought under order IX Rule 5, Sections 68 i (2) (e) and 95 of the CPC Cap 33 RE 2019. The same has been taken out at the instance of the Applicant and is supported by an Affidavit of Alex Mashamba Balomi, learned Advocate for the Applicant and opposed by the Counter Affidavit of Frida Peter Nlollel, learned State Attorney from the office of the Solicitor General. The hearing of the Application was done by way of written submissions pursuant to the timetable drawn by the court. At the commencement of hearing, the Applicant was represented by learned Advocate Alex Balomi and the Respondent was represented by learned State Attorney Frida Mollel. Arguing in support of the Application the Applicant contended that the Application is made under the certificate of extreme urgency for the reasons assigned in the certificate and is made under Order IX Rule 5, Sections 68 (2) (e ) and 95 of the Civil Procedure Code Cap : I 33 RE: 2019. The Applicant is seeking for an order to set aside the dismissal order made on 29th of September 2023 by Hon. Mhina J, in Land Appeal No. 341/2023 and an order for restoration of the Application, costs I I and any other reliefs the court may deem fit to grant. The Applicant also began submitting his case by praying to the court to adopt the contents of the Affidavit in support of the Application, specially para 2, 3, 4, 5, 6, 7, 8 and 9. He contended that these paragraphs have been paraphrased to include sufficient reasons indicating that the non appearance of either the representing counsel or the Applicant on the aforesaid date arose from the fact that the matter was initially assigned to Hon. Mhina J, and was called for the first time before his Lordship on the 15th of September 2023. The learned counsel contended that, on the material date the Respondent did not appear despite the fact that he was duly served upon with the land appeal papers. That the learned Advocate appeared before his Lordship, the trial Judge and for avoidance of doubt and in order to meet the ends of justice, he prayed to the court for the matter to stand adjourned till on the 28th of September 2023 at 10:30 a.m. That on the. material date, beyond the learned counsel's control, it was a public holiday i.e. Maulid and the case automatically stood adjourned at the instance of the law and it could not proceed. The learned counsel contended that the matter was again called on the subsequent day i.e. on the 29th of September 2023 and that he could not appear as he was already summoned before the Tanzania Court of Appeal in Civil Application No. 531/16/2023 between Mohamed Said Kiluwa suing in the name of Kiluwa Steel Group Company Ltd and Wang Shengju and Another.The matter was before a part of Hon. Justices of Appeal, Koroso, Rumanyika and Mgonya. The learned counsel for the Applicant argued further that before the scheduled date, the counsel for the Applicant was pressed in order to meet the preparations for the called upon matter in the Court of Appeal on the 29th of September, 2023. He stated further that on the 28th day of September 2023, which was a public holiday, the court registry was also closed and therefore the Applicant's counsel could not have the notification filed in court and he honestly believed that the Applicant would follow up on the next date fixed and it turned out to be a gazetted public holiday and after the Applicant's counsel has sorted out the tight Court of Appeal Session. He went on submitting that on Friday 29th day of September of 2023 he made a follow up after the Court of Appeal session but it appeared to be a tight Friday as he could not easily trace the court clerk to his Lordship. It was until on 3rd day of October 2023, his legal assistant one Samwel Shiminde, on follow up, was only informed by the clerk of his Lordship that the matter was dismissed on the 29th day of September 2023 for want of prosecution, hence this Application. The Learned counsel argued that he was not negligent but faced with the above mentioned circumstances. That the previous conduct of the Applicant on appearance is very clean except for the unforeseen event which changed the court schedule hence non appearance was with sufficient reasons assigned in the supporting Affidavit. He contended that the Application has been made without due delay, and it seeks to ask the court restore the matter and appoint the date to hear it on merit. That if the Application is not restored and determined on merit the Applicant is likely to be condemned unheard while he has sufficient interest in the pending main Land Appeal in which he is the Appellant. That the Applicant has a prima facie case to be entertained in this Application sought to be restored and determined on merit. That the Applicant has acted with due diligence and prays for the dismissal order to be set aside so that he can be heard on merit as there are serious issues for determination by the court. That the Applicant will suffer irreparable loss if he is not given the right to be heard while there is a serious commercial and procedural law dispute to be settled. This will be contrary to the provisions of Article 13(6)(a) of the Constitution of the URT as amended. Finally, the learned counsel argued that, the Respondent has filed a Counter Affidavit in opposition which technically has not opposed the actual sufficient cause assigned by the Applicant therefore the same be disregarded and the Application be allowed. He also prayed for the court to let the costs to be in due cause in the best interest of justice. Submitting in rebuttal, the learned counsel for the Respondent opposed the Applicants Application for setting aside a dismissal order in Land Appeal No. 341/2023 made on the 29th September 2023 by Mhina,J and an order for restoration. The Respondent also prayed to begin by adopting the Counter Affidavit sworn by Ms. Frida Peter Mollel, learned State Attorney filed on 22nd February 2024 to form part of the written submissions. The Respondents main reason for opposing the Application is based on the reason that the Applicant has failed to demonstrate sufficient I reasons for the court to be satisfied to grant the Application. The learned State Attorney, argued that, in determining an Application for setting aside a dismissal order, the legal test is for the court to be satisfied that the non appearance by the Applicant on the date of the dismissal was justified as per Order IX Rule 6 (1) of the CPC Cap 33 R.E 2019. The learned State Attorney also referred the court to the case of Nasibu Sungura vs Peter Msechu Civil Appeal No. 24/2017 where the Court of Appeal observed that: In an application to set aside the order dismissing the suit for non-appearance, the important question is not only whether the case for the Applicant is soundly maintainable and meritorious but whether the reasons furnished are sufficient to justify the Applicant's non appearance on the date the suit was dismissed. She argued that in this matter on the date of dismissal the Applicant was not present in the court premises as he claimed to be a public holiday, which was a Maulid day. The case was automatically adjourned to the next day and on the next day he appeared in the Court of Appeal hence failed to appear before the High Court and his f4V- i j r I Appeal ended being dismissed by the court. The learned State Attorney submitted that the reasons adduced by the Applicant are not sufficient reasons for this court to be satisfied to restore the dismissed case. The Applicant's counsel being an officer of the court he ought to have known all the procedures to be followed or done when he fails to appear in court. She further contended that, the Applicant's counsel negligence in not attending to his client's case resulted to its dismissal hence not a sufficient reason for restoration. The Applicant's counsel was supposed to act diligently and inform his client to appear before the court to seek for adjournment since it is the client's case. She contended further that, the Applicant's counsel had another option to either send another advocate from his law firm for representation or any other fellow advocate to appear before the court, however all these were not done. Similarly, the learned State Attorney argued that, the Applicant's counsel as a legal practitioner is familiar with court procedures and was required to submit a letter attached with the summons for his appearance at the Court of Appeal requesting for the court's adjournment of the case however he failed to do so. That being the case, she argued that the reasons adduced by the Applicant are neither strong nor sufficient for the court to grant an order setting aside its previous order and restore the case. The Respondents counsel submitted that the Applicant just relied on mere explanations rater than proving the circumstances which prevented him to appear before the court. All what is demonstrated in the circumstances at hand, is extreme negligence on the Applicants counsel and the Applicant himself which cannot be termed as sufficient reasons for this Application to granted. The learned State Attorney asserted that as a matter of general principle, It is in the discretion of the court to restore the matter which was dismissed for want of prosecution but such discretion has to be exercised judiciously and according to rules of reasons and justice and not according to one's private opinion or arbitrariness. That once a case is dismissed for non-appearance, the order can be set aside upon the Applicant showing good cause to the satisfaction of the court to do so. However, the Applicant in the matter at hand, has failed to demonstrate good cause warranting the court to exercise its power to set aside the dismissal order The Applicant was supposed to give sufficient reasons to the satisfaction of the court for failure to prosecute his case, failure of which the court cannot grant the order as prayed. This position was illustrated in the case of Jamal S. Mkomba and Abdallah Issa Namangu & 359 Others vs. Attorney General Civil Application No. 240 of 2019 CAT at Dar es Salaam (unreported) She contended that based on the above reasoning, the Respondent is of the view that, what the Applicant has submitted is an afterthought as the Applicant is trying to bring a new case hence precluded from the same. She further cited the case of Sadru Mangaji vs. Abdul Aziz Lalani and 2 others, Commercial Application No. 126 of 2016 High Court of Tanzania Mwanza Registry (unreported) and the case of Mwidini Hassan Shila and 2 others vs. Asinawi Makutika and 4 Others Land Appeal No. 4 of 2019 High Court [unreported] to drive her point home, that the Applicant has failed to furnish sufficient reasons to the satisfaction of the court to enable it set aside the dismissal order and restore his Application hence she prayed for the Application to be dismissed with costs for short of sufficient reasons to the satisfaction of the court. Having gone through the rival submissions of the parties, the broad question to be determined is whether the Application has merit or whether the Applicant has furnished sufficient reasons to enable the court to set aside the dismissal order and have his client's Application restored for hearing. Upon my careful perusal of the record, I have observed that the Applicant filed an Application for setting aside a dismissal order made on 29th day of September 2023 by Mhina J. The said Appeal was dismissed due non-appearance of the Appellant and his Advocate. In his Application, the Applicant has also prayed for an order for the restoration of the Application and hearing of the matter to proceed. It is trite law that the court is bestowed with discretion to set aside a dismissal order. However, that discretion must be exercised judiciously upon the Applicant furnishing sufficient reasons for non­ appearance on the date the matter was fixed by the court. See the case of Sadru Mangaji vs. Abdul Aziz Lalani and 2 others (supra) In the Application at hand, the Applicant in the Affidavit sworn by his Advocate, Alex Mashamba Balomi has furnished two reasons for non appearance on the 29th of September 2023. One that he was attending another matter before the Court of Appeal in Civil Application No. 531116/2023 between Mohamed Said Kiluwa suing in the name of Kiluwa Steal Group Company Ltd and Wang Shengju and Another which was before Mgonya J.A. That the matter was originally fixed on 28th of September 2023 upon his own request at 10:30 a.m. and that the said day turned out to be a public holiday, that is Maulid day and when the matter was called on the subsequent day i.e. 29th of September 2023, the [earned counsel for the Applicant had already been summoned to appear in the matter mentioned herein above. That on the 28th of September since the registry was closed; he could not file the notification in court. He came to be aware that the matter had been dismissed on 3rd of October 2023, through his Legal Assistant one Samuel Shiminde who was informed by the court clerk of Hon Mhina, J about the same. Thus, he was prevented by the circumstances beyond his control and that he was not negligent. Similarly, the learned counsel contended that he would like to be heard since he has sufficient interest in the main case Land Appeal in which he is the Applicant and has a prima facie case. On their part, the counsel for the Respondent has objected to the Application considering that the Applicant has not furnished good reasons for non-appearance. She also stated that the reasons advanced constitute an afterthought. With regard to whether the Applicant was presented to attend in court on 29th of September 2023 because he was summoned to appear before the court of Appeal, I have perused the summons issued by the Court of Appeal indicating that the said matter was scheduled on the 29th of September 2023 at 9:00. The said summons was received on 14th of September 2023 by the learned counsel as indicated in his address appearing on the summons. Therefore the learned counsel was aware that the matter, which was dismissed, had been fixed on the said date since 14th of September 2023 and had received service of the summons already in his hands. Therefore, as per the procedure, whenever the matter is fixed on a Public holiday it normally proceeds on the next working day, then the counsel for the Applicant ought to have sent the Applicant or his Legal Assistant or fellow Advocate to notify the court on his reason for non-appearance including submitting in court a copy of the summons indicating that he was also appearing before the Court of Appeal on the material date, and therefore could not appear before Mhina J. However, based on the record, this was not done. Neither the learned counsel for the Applicant nor the Applicant appeared in court on the material day. Further none of the Advocate or the said Legal Assistant was sent in court to notify it about the absence of the learned counsel. I must also state that the summons issued by the CAT which has been attached at this stage, is as an afterthought. It ought to have been attached earlier on. In this regard and based on the reasons above, I agree with the learned counsel for the Respondent that the reasons adduced by the Applicant are not sufficient to warrant this court to restore the dismissed case. The Applicant's counsel being an officer of the court ought to have known well the procedures to be followed whenever he fails to appear in court. He has thus acted negligently and not diligently in attending his client's case and resulting into its dismissal. Time without number, the court has held that, negligence of the counsel is not a good ground for setting aside a dismissal order. In the case of Said Seleman Mamoja, vs. Commissioner for Lands and Others Misc. Land Application No. 79/2023 High Court Dar es salaam, the court emphasized on the need for the client to follow up his case and appear on every session of the court. See Order IX Rule 1 of the CPC. In the current matter, neither the Applicant nor his Advocate appeared in court before Hon. Judge Mhina which led to the dismissal of the matter. In the case of Power and Network Backup Ltd vs Olafsson Sequeira, Civil Application No. 307118 of 2021 CAT Dar es Salaam, the court emphasized on the need of the Applicant to attach Affidavits of the persons he mentions in his Affidavit to prove his case. In this case the Applicant never attached any Affidavit of the Legal Assistant or the clerk to prove his assertions. In the cited case above of Power and Network Backup Ltd (supra) the court held that: It is a settled position of the law that if an affidavit mentions another person, that other person must swear an Affidavit otherwise it will be hearsay. See also the case of NBC Ltd vs Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 131/2002, Benedict Kimuaga vs. Principal Secretary Ministry of Health, Civil Application No. 31/2000 both (unreported) and John Chuwa vs Anthony Ciza (1992) TLR 233. In the former case it was held that; An Affidavit which mentions another person's is heresay unless that other person swears as well. Therefore, it is my settled view that whatever arguments or statements of the Applicant, mentioning third parties, contained in the Affidavit remain to be hearsay. Therefore based on the analysis and reasons above, this court has found that the Applicant has failed to advance any sufficient cause for the restoration of his Application as required by the law. Hence, this court cannot grant the order as prayed. This position was also illustrated in the case of Jamal S. Mkuba and Abdalla Issa Namangu & 359 others (supra) cited by the Respondent, where it was held that: - In the end, we find and hold that the Appellant has neither shown sufficient cause for the non appearance nor a point of law of sufficient importance to persuade us to exercise our discretion to restore the appeal. We find this Application with no iota of merit and we dismiss it with costs. The second ground advanced by the Applicant in his Affidavit is that if the Application is not restored and determined on merit, the Applicant is likely to be condemned unheard while he has sufficient interest in the Land Appel. That he has a prima facie case and would like to be heard on merit as there are serious issues for determination by the court and the Applicant will suffer irreparable loss as there is a serious commercial and procedural law dispute to be settled. If the Application will not be restored the Applicant will be condemned un heard contrary to Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. l I With regard to issue of the right to be heard, in the serious commercial and procedural dispute as claimed by the Applicant and his counsel, I am of the settled view that the right to be heard is subject to the laws of the land. A party cannot claim that he was not afforded the right to be heard while he chose not to prosecute his case when the matter was fixed for hearing. There must be procedural compliance as per the court orders issued by the courts. See the case of John Simon vs. Siya Simon Misc. Civil Application No. 59 of 2023 HTC at Mwanza. The fact that the Applicant has a prima facie case is not a sufficient reason to justify the Applicant's non­ appearance on the date the suit was dismissed. See the case of Nasibu Sungura vs. Peter Msechu Civil Appeal No. 24 of 2017 CAT. In the case of Mwidini Hassan Shila and 2 Others (supra), the High court held that, the powers to set aside dismissal orders are in the discretion of the court, however the Applicant should furnish sufficient reasons to enable the court exercise its discretionary power. In the upshot, this Application must fail as the Applicant has failed to demonstrate sufficient reasons for non-appearance to enable this court to grant the AppNcation. The Application is thus dismissed with costs. Order accordingly. Dated at Dar es salaam this 31st Day of May 2024 S. D. MWAIPOPO JUDGE 31/5/2024