national furnitures safii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 1095 OF 2025 NATIONAL FURNISHERS LIMITED.................................................. APPLICANT VERSUS EXIM BANK TANZANIA LIMITED.................................................. RESPONDENT RULING 26.02.2025& 02.04.2025 N.E. MANDIA, J This ruling emanates from an application to set aside the dismissal order issued on 17.12.2024 in Misc. Land Application No. 24417 of 2024. The application is preferred under section 95 and Order IX Rule 6(1) and (2) of the Civil Procedure Code [Cap 33 R.E 2019]. The applicant is seeking for the following orders: 1. That this Honourable court be pleased to set aside the dismissal order dated 17th December, 2024, in Misc. Land Application No. 24417 of 2024 between National Furnishers Limited versus Exim Bank Tanzania Limited 2. That the Honourable Court be pleased to appoint a day for proceedings of hearing ofMisc. Land Application No. 24417 of 2024 between National Furnishers Limited Versus Exim Bank Tanzania Limited 3. Costs of this application to be in the main cause 4. Any other relief that the Honorable Court deems fit to grant. 1 Brief fact of this application as gathered from the record is that: Mr. Tazan Keneth Mwaiteleke, learned advocate, was representing the applicant in Misc. Land Application No. 24417 of 2024. The matter was scheduled for hearing on 17.12.2024 and Mr. Mwaiteleke failed to appear and no reason was adduced for such nonappearance. The counsel for the respondent prayed for the matter to be dismissed for want of prosecution. The prayer was granted hence, this application. The application was heard by way of written submission as ordered by this court and adhered by both parties. Mr. Nabory Mdemu, learned advocate represented the applicant whereas the respondent enjoyed the legal services of Mr. Gasper Nyika and Mr. Iddrisa Juma, learned advocates. In support of the application, Mr. Mdemu prayed to adopt the content of his affidavit and that of Tazan Keneth Mwaitekele to form part of his submission in chief. He submitted that the main reason for failure of advocate Mwaiteleke to appear for hearing of Misc. Land Application No. 24417 on 17.12.2024 is illness. That Mr. Mwaiteleke who was responsible to prosecute the said application was sick and in that particular date he attended at Kinondoni Hospital. That due to the said illness, Mr. Mdemu was instructed to appear and hold brief for Mr. Mwaiteleke. He submitted further that sickness or illness is acceptable as good cause or sufficient reason for non-appearance in court for purposes of setting aside the dismissal order. He cited the case of RAMADHAN GiAMISI SOTERI VS. WILSON MWEMVULA MPEKA, ZAINABU RAMADHANI SOLANGA, Misc. 2 Land Case Application No.340 of 2019, where it was held that: Admittedly, the position of the law is that sickness accompanied by proof or attachment of medical report is a sufficient cause or good cause for re-admission ofAppeal dismissed for non-appearance". That it is apparent from the record that he had two matters at the same time and in the same court hence, he first appeared in Land Appeal No. 12932 of 2024 before Hon. Gwae, Judge as a result he was unable to attend in Misc. Land Application No. 24417 of 2024. That he was late for ten minute and as he entered appearance, the dismissal order had already been sought and granted by the court. That the applicant stands to suffer irreparable loss if the dismissal order is not set aside as the matter involves substantive rights which require a full hearing. It is also apparent on record that the applicant has always been appearing to prosecute his application. He was of the view that setting aside the dismissal order will not prejudice the respondent as the matter will proceed to full hearing and will enable the court to adjudicate on the merits of the application inter parties. Mr. Mdemu prayed for the court to grant the prayers in the chamber summons and the dismissal order dated 17.12.2024 in Misc. Land Application No. 24417 of 2024 be set aside. In reply, Mr. Nyika prayed to adopt the contents of their counter affidavit. He submitted that it is a well-established rule that in order for the court to grant an application to set aside a dismissal order, the applicant must give sufficient reason (s) for his non-appearance. He cited the case of PIMAK PROFESYONEL 3 MUTFAK LIMITED SIRKETI VS. PIMAK TANZANIA LIMITED & ANOTHER Misc. Commercial Application No. 55 of 2018 (unreported) where this court held that: "It is a trite law that the Applicant must advance sufficient cause for the Court to set aside the dismissal order. What amounts to a sufficient cause has not been defined by law..." That in the case of YUSUFU SAME & ANOTHER VS. HADIJA YUSUFU, Civil Appeal No. 1 of 2002 (unreported) the Court of Appeal of Tanzania interpreted the word "sufficient cause" as follows: "It should be observed that the term 'sufficient cause' should not be interpreted narrowly but should be given a wide interpretation to encompass all reasons or causes which are outside the applicant's power to control or influence resulting in delay in taking any necessary step" He contended that the applicant did not provide explanations for his non- appearance on 17.12.2024. That illness was the main reason for his non- appearance however, the medical chit attached in the applicant's affidavit revealed that Mr. Mwaiteleke was an outpatient because he was not admitted nor excused from his responsibilities; instead he was merely prescribed some medications hence, he was able to carry out his responsibilities, which included being in court or sending a notice of absence. Therefore, the medical chit provided does not give a sufficient reason for failure to appear in court on 17.12.2024. He cited the case of ATHUMAN MTUNDUNYA VS. THE 4 DISTRICT CRIME OFFICER RUANGWA & OTHERS, Civil Reference No. 15/20 of 2018 (unreported) where the Court of Appeal upon examination of the medical proof had this to say in relation to un hospitalized patient: “ That apart, even if they are genuine, still the applicant was attending the dispensary as outpatient. He was not hospitalized. The medical chits show on several occasions, the applicant attended the Dispensary as outpatient... we fully agree with the single justice that the medical chits do notjustify the reason for delay..... " That it is crystal clear that Mr. Mwaitekele was able to control things and ensure the attendance and or notice of his absence is communicated before the court. That even on assumptions that he instructed advocate Mdemu to hold his brief knowing that he had other matter to attend, he was able to make follow-up and contact any director of the applicant to attend and give notice of his absence. Hence, the medical grounds put forward by the applicant is insufficient to justify the failure to appear on the material date. He was of the view that the case of RAMADHAN HAMIS SOTERI (supra) cited by the applicant was decided under different circumstances and is distinguishable to the matter at hand because, one, in the said case the applicant was a natural person and not a company two, in Ramadhani's case the medical proof presented in court indicated that the applicant was hospitalized. Also that the case of LONGINO LAZARO @ KASONTA VS. MOHAMED SUMAR, Misc. Civil Application No. 198 of 2023 cited by the applicant's counsel is distinguishable to 5 the matter at hand because, one, the applicant in Lazaro's case was a natural person unlike in this case where the applicant is a company with directors, two, in Lazaro's case the issue of sickness was not opposed by the respondent as they did not file counter affidavit to oppose the ground of sickness and the medical proof in support of the sickness thereof. That even if Mr. Tazan was unwell, his sickness cannot be used as a reason for setting aside the dismissal order since they have admitted that the matter was assigned to Mr. Mdemu. Thus, it is immaterial if Mr. Tazan was sick or not. That the argument that Mr. Mdemu who was instructed to hold brief of Mr. Mwaiteleke had two matters at the same time in the same court and that he first appeared in Land Appeal No. 12932 of 2024 is unfounded. That the decision in Land Appeal No. 12932 of 2024 does not support the argument that Mr. Mdemu was present when the decision was made nor does it support the claim that the matter was called concurrently. Such facts are not indicated or suggested by the aforementioned ruling. That as the case was in the same court, Mr. Mdemu had the chance to inform the court or the respondent's counsel of the circumstances, but he decided not to do so. That this does not adequately account for the applicant's nonappearance on 17.12.2024. That the respondent took liberty to verify with the Advocate's Register at the front desk and noted that on 17.12.2024 Mr. Mdemu never entered the Land Court premises. He cited the case of LAZARO @ KASONTA (supra) to bolster his argument. That if at all Mr. 6 Mdemu was in the same court attending another matter he neglected to inform the court or the respondent's counsel of his whereabouts hence, his late arrival in court, if at all, should not be condoned as it would encourage laxity and negligence. Mr. Nyika prayed for the court to dismiss the application with costs. In rejoinder, Mr. Mdemu maintained the position that the application has merits. He reiterated his submission in chief and the prayers made in the application. That the respondent does not dispute that Mr. Mwaiteleke was sick rather that he was not admitted in hospital and he was outpatient who was able to attend the hearing of the matter. He conceded to the argument and re-joined that it is clear that Mr. Mwaiteleke attended hospital on 17.12.2024 which was exactly the same date when the matter was fixed for hearing hence, it was impossible for him to be in the court unless hearing of the matter was on different date. That the medical chitty attached to the application gives sufficient reason for failure to appear in court on 17.12.2024. Mr. Mdemu rejoined that the argument that the respondent has taken liberty to verify with the advocates register at the front desk is a new evidence and is wrong because submission is not evidence. That the respondent has not attached the alleged copy of the register for parties to read and be sure of the alleged register. He cited the case of LUSHUMBO INVESTMENT LIMITED VS. NATIONAL BANK OF COMMERCE LIMITED, BUNDA OIL INDUSTRIES 7 LIMITED, MOUNT MERU MILLERS LIMITED, Civil Appeal No 503 of 2020, to bolster the argument that written submission and its annexures are not intended to submit new facts or evidence. That the advocate register book is not conclusive evidence of appearance of advocate in court rather court proceedings. That the cited case of PIMAK PROFESYONEL MUTFAK LIMITED SIRKETI (supra) is in all fours with the instant application and that sickness is a sufficient reason as explained in the case of JOHN DAVID KASHEKYA VS. THE ATTORNEY GENERAL, Civil Application No. 1 of 2012. Also that the applicant accepts the principle in the case of YUSUFU SAME & ANOTHER (supra) but is distinguishable in the sense that it was about extension of time, not setting aside dismissal order. Again that the case of ATHUMAN MTUNDUNYA (supra) is distinguishable from the instant application as it was for extension of time. He was of the view that the issue of contacting the director of the applicant is an afterthought and it is not in the counter affidavit. He prayed that the application be granted as prayed. Having careful examined the submission of the parties, the vital question for my determination is whether the applicant has adduced sufficient cause to warrant this court to set aside the dismissal order issued on 17.12.2024. At the outset, it is trite law that illness or sickness accompanied by proof or attachment of medical report is a sufficient cause or good cause for setting aside a dismissal order issued for non-appearance. It is on record that Mr. Mwaiteleke 8 who was in charge of prosecuting Misc. Land Application No 24417 of 2024 was sick on the day the application was set for hearing. It is also undisputed that Mr. Mwaiteleke attended the hospital as an outpatient as he was not hospitalized. Bearing in mind that his application was coming for hearing, Mr. Mwaiteleke requested Mr. Mdemu to hold brief on his behalf, something which was not done. Mr. Mdemu argument is that he was appearing in another matter before the same court and at the same time which failed him to appear and hold brief for Mr. Mwaiteleke. I had an opportunity to go through the record and proceedings of the said Land Appeal No. 12932 of 2024 between ZAINABU DIWANI BUNGIRE VS. NATIONAL MICROFINANCE BANK PLC & 2 OTHERS which was before Hon. Gwae, Judge and realized that on the said date, the appellant appeared in person and was represented by Mr. Adrian Mhina, learned advocate and the respondent were absent. There is nowhere in the said proceedings has Mr. Mdemu be recorded as appeared for either of the parties. No wonder Mr. Mdemu has been so furious on the issue of Advocates Register which was taken as just part of the record although admittedly, it is not a conclusive evidence of advocates attendance in court. I am persuaded by the decision of this court in LAZARO @ KASONTA that: - "...the Applicant has alleged that the advocate Mr. Andrew Chima who was sent by the Applicant's undisclosed former advocate to hold his 9 brief, was late to arrive in Court. In my considered view, this is not a good cause for non-appearance in Court or for setting aside dismissal order under Order IX Rule 3 of the Civil Procedure Code [Cap 33RE 20219]. It would encourage laxity and negligence on the part of the counsel..." From the foregoing holding and in as much as i agree that Mr. Mwaiteleke was sick, despite that he was not hospitalized, it is evident to me that he truly attended to the hospital and hence, could not attend the hearing as scheduled. However, it is on record that Mr. Mdemu who was assigned to hold brief for Mr. Mwaiteleke was not only honest to his fellow counsel but to this court as well. The fact that he lied to this court, makes this application baseless as well. His action and, or inaction should not be left to benefit the applicant because doing so is to condone the behavior. The law is very clear on what to do with such kind of behavior however, as it is the first time for Mr. Mdemu to do so before me personally hence, i refrain from taking action. In the circumstance, I do not intend to condone the action by the applicant which would otherwise encourage laxity and negligence on the part of the counsels. Having said so, I hereby dismiss the application with costs. It is so ordered. io