Ruling Miscellaneous Civil Application No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISCELLANEOUS CIVIL APPLICATION NO. 13238 OF 2024 (C/F Miscellaneous Civil Application No. 83477 of 2023 in the High Court of United Republic of Tanzania at Moshi) NMB BANK PLC…………………............................................ APPLICANT VERSUS UNFOSEEN FURAEL MUNISI……………………………….… RESPONDENT RULING 20th August & 23rd September, 2024 MONGELLA, J. The applicant herein has preferred this application under Section 95 and Order IX Rule 6(1) of the Civil Procedure Code R.E 2019. She seeks for this Court to issue an order to set aside the dismissal order it made on 28.04.2024 in Miscellaneous Civil Application No. 83477 of 2023 and restore the same. The applicant’s application is supported by the sworn affidavit of Mr. Sabato Ngogo, an Advocate that represented her in Miscellaneous Civil Application No. 83477 of 2023 and stands for her in this application. The respondent expressed his protest by the Page 1 of 6 sworn counter affidavit of one Gideon B. Mushi, an Advocate that represents the respondent in this application. The application was resolved by written submissions and as indicated, Mr. Ngogo stood for the applicant and Mr. Mushi for the respondent. Submitting in chief, Mr. Ngogo averred that an application to set aside will succeed if filed within time and the applicant adduces sufficient reason for non-appearance. He averred that as he deponed in his affidavit, Misc. Civil Application No. 83477 of 2023 was scheduled for hearing on 28.05.2024. That, on the fateful day, he appeared in Court and was waiting for the case to be called. However around 10:24hrs upon seeing the court clerk responsible, she informed him that his matter had been called and dismissed for want of prosecution. He argued that this was contrary to the schedule which required the matter to be heard at 10:30hrs. The learned counsel averred that he made efforts to file this application for restoration on the same day, thus acted promptly to remedy the dismissal. He was of the view that the fact that the case was called before time serves as sufficient reason for restoration of the case. He finalized by praying for the application to be granted with costs. In reply, Mr. Mushi raised an issue that Mr. Ngogo’s affidavit was defective as it contained hearsay information as it mentions persons that have not sworn an affidavit to support the deponed Page 2 of 6 facts. Pointing the defects, he referred to paragraph 4 and 5 of Mr. Ngogo’s affidavit contending that the mentioned persons ought to have sworn affidavits to support the averments. He supported his argument with the case of: Standard Goods vs. Harakchand Nathu and Company [1950] EACA 99; Sabena Technics Dar Limited vs. Michael J. Luwunzu (Civil Application No. 184/18 of 2022) [2023] TZCA 17852 (16 November 2023); Benedict Kimwaga vs. Principal Secretary Ministry of Health, Civil Application No. 31/2000, CAT at Dar es salaam(unreported); NBC Ltd vs. Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002 (unreported) and; Franconia Investment Ltd vs. TIB Development Bank Ltd (Civil Application 270 of 2020) [2021] TZCA 563 (30 September 2021). As to the application, Mr. Mushi alleged that in reference to proceedings of 28.05.2024, the dismissal order was issued around 10:25hrs and if Mr. Ngogo was indeed present in Court, he would have entered appearance. The Counsel further contended that the record shows that the applicant and her counsel never entered appearance in respect of Miscellaneous Civil Application No. 83477 of 2023 since it was scheduled for necessary orders for the first time. Hence, in that respect, he had the stance that the reason that the case was called before 10:30hrs was an afterthought. There was thus insufficient reason advanced worthy of granting orders sought in the Chamber summons. He prayed that for the application to be dismissed with costs. Page 3 of 6 I have considered the submissions of both parties. As clearly advanced in his chamber summons and supporting affidavit, the applicant herein seeks for this Court to set aside its dismissal order in Miscellaneous Civil Application No. 83477 of 2023. No doubt, the reason advanced pertains the time within which the application was dismissed. Prior to addressing the matter, I will address the issue raised by Mr. Mushi concerning there being hearsay evidence in Mr. Ngogo’s affidavit. Indeed, upon observing the Mr. Ngogo’s affidavit, at paragraphs 4 and 5 he did mention two persons, that is, Ms. Rehema Mjema, the Court Clerk and the presiding Judge. The two paragraphs state: 4. That. it was until 10:24 am when I asked the court clerk one Rehema Mjema if she was to call Misc. Application No. 83477 of 2023 because its scheduled time was approaching only to be brought to my attention that, she had already called the case before trial case. ! showed her via online Case Management System the case was scheduled @ 10:30 am and the time was not yet. She advised me to approach the trial Judge and express my concern. 5. That, immediately I approached trial Judge and brought to her attention my concern and told me that, it is true our matter was scheduled @ 10:30 am but unfortunately she had already issued dismissal order before scheduled time and she advised me to take legal cause to restore our application. The law is settled that where an affidavit mentions another person, such person must swear an affidavit otherwise such facts deponed Page 4 of 6 are deemed hearsay. This was expounded in Frady Tajiri Chawe vs. TANESCO (Civil Application No. 505 of 2019) [2023] TZCA 88 (6 March 2023) TANZLII, whereby the Apex Court stated: “As rightly argued by Mr. Kamihanda the law is settled that where an affidavit mentions another person, that other person must swear an affidavit otherwise the averment in which he is mentioned will become nothing but hearsay.” See also; Power & Network Backup Ltd vs. Olafsson Sequeira (Civil Application No. 307 of 2021) [2023] TZCA 80 (1 March 2023) TANZLII; Sabena Technics Dar Limited vs. Michael J. Luwunzu (supra); and; Franconia Investment Ltd vs. TIB Development Bank Ltd (supra). The effect of an affidavit containing facts mentioning other persons is not for the same to be rendered defective. Rather, the paragraphs will be ignored for being hearsay. In that regard, I will not pay attention to the two paragraphs. Moving on to the advanced reason, it is apparent that the same is founded on the dismissal order being issued prior the time scheduled for hearing of the dispute. In the premises, and for interest of justice, I took it upon myself to observe the e-case management system. It is apparent that indeed the case was fixed to be heard on 28.05.2024 at 10:30. While there is no indication on when exactly the matter was dismissed, i find it would be completely uncourteous for me to ignore such details just because he did not attach the affidavit of the presiding Judge or that of the court clerk. Page 5 of 6 It is evident that Mr. Ngogo also acted promptly after learning of the dismissal whereby he filed the application at hand on the same day his client’s matter, that is, Miscellaneous Civil Application No. 83477 of 2023, was dismissed. This also indicates that he indeed was in the Court precincts on that day. In the foregoing, I find the reason advanced being sufficient to dispose this matter in the applicant’s favour. I therefore hereby set aside the dismissal order issued in Miscellaneous Civil Application No. 83477 of 2023. I order Miscellaneous Civil Application No. 83477 of 2023 to be restored and determined on merit. Considering the nature of the matter, each party shall bear his/her own costs of this application. Dated and delivered at Moshi on this 23rd of September, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 6 of 6