PROSPERITY REAL ESTATE COMPANY LIMITED scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISCELLANEOUS LAND APPLICATION NO. 28030 OF 2024 (Arising From Land Case No. 357of2023) PROSPERITY REAL ESTATE COMPANY LIMITED...... APPLICANT

VERSUS THOMAS THOMAS MGENDERA....................... 1st RESPONDENT CRUCIAL INVESTMENT LIMITED.....................2nd RESPONDENT

RULING 12/02/2025& 18/02/2025 A. MSAFIRI J. This is an application to set aside an order to strike out a written statement of defence (WSD) and counterclaim which was issued by this court in Land Case No. 357 of 2023 on 24/10/2024. On that date, the said land case was set for First Pre-Trial Conference. The applicant who was the 2nd defendant in the suit was absent without notice. The court proceeded to strike out his defence and the counterclaim he has filed and ordered the proceedings to proceed in his absence. The applicant was aggrieved hence he filed the current application. The application was made by way of chamber summons supported by an affidavit deponed by William Yohana Fungo, learned Advocate for the. i applicant. The application was opposed by the counter affidavit of Mr. Cleophas James, learned Advocate for the 1st respondent. The hearing was oral. On the date of the hearing, Mr William Fungo appeared for the applicant, Mr. Cleophas James, learned advocate acted for the 1st respondent, while Mr. William Fungo held brief for Mr Paul Mganga for the 2nd respondent. In support of the application, Mr. Fungo, on his oral submission before the court, said that sickness was the reason for his non-appearance in court on the date when the matter was scheduled for First Pretrial Conference. That he was suffering from High Blood Pressure as per the medical report attached

with the affidavit as annexure PR 01. To cement his claims the counsel cited the case of Loshiru Karaine & Others vs Abraham Melchizedek Kaaya, Civil Appeal No. 534 of 2020. In reply, Mr. James for the 1st respondent did not contest the issue of the applicant's sickness, but stated that the medical report shows that the one who attended in hospital on a particular date was William Y.Fungo while the affidavit in support of the application was deponed by William Yohana Fungo. According to Mr James, William Y. Fungo and William Yohana Fungo are two different people. He further stated that the affidavit of names dated 01/12/2023 which is attached in the reply to counter affidavit ought to exist since the applicant filed the application. And that, filing the affidavit regarding names at the stage of replying to counter affidavit is an afterthought. To bolster his point, he cited the case of Adam Wamunza vs Kinondoni Municipal Council & Another, Civil Appeal No. 424 of 2020 whereby the Court of Appeal of Tanzania held that if the names are used interchangeably, it must be shown in evidence. Concluding his submission, he urged the court to dismiss the application. In rejoinder, Mr. Fungo stated that the case cited is distinguishable from this instant case. He insisted that the affidavit of names is used to clarify which names were correct. Mr Fungo further argued that the counsel

for the 1st respondent did not clarify if the attached and filed affidavit has any legal defects or not. He reiterated his submission in chief and prayed for the court to allow the application. The 2nd respondent did not file a counter affidavit as she was not contesting the application. I have carefully considered the submissions by the parties as well as perused both affidavits and counter affidavit by the parties. Under Order VIII Rule 20(2) of the CPC, this Court has discretionary powers to set aside its order of 24/10/2024 striking out the applicant's WSD and counterclaim, upon him demonstrating good reasons, which the court will consider to be just. The said Order VIII Rule 20(2) of the CPC provides: - 3 20(2)- An order made by the court in the absence of a party concerned or affected by the order may be set aside by the court, on the application of that party within fourteen days from the date of the order, on such terms as it considersjust... In discharging his duty of demonstrating good reasons for his non- appearance in court on 24/10/2024, the applicant advanced single reason; that is of sickness. He stated that on the date scheduled for first pre-trial conference, suddenly he felt ill with dizziness to the extent that he was taken to the nearby hospital at Hindu Mandal Hospital whereby he was diagnosed with a High Blood Pressure. That, as per the

doctor's recommendation, he was admitted at the said hospital on that day hence failed to enter appearance in court. The applicant supported his claims by medical forms named as annexure PR 01, which are copies of the Medical Certificate and ED sheet. The counsel for the 1st respondent did not contest about the purported sickness of the applicant but rather contested about the names difference appearing in the affidavit and the medical forms. The counsel for the 1st respondent argued that in the counter affidavit, the medical report dated 24/10/2024 shows that the one who attended the hospital was William Y. Fungo but the affidavit in support of the application was deponed by William Yohana Fungo. He was of the view that, the act of the applicant 4 to attach affidavit of names in reply of the counter affidavit is an afterthought as it ought to be attached in the affidavit in support of the application. Regarding the issue of the affidavit of names, I find that the affidavit of names is properly attached since the reply to counter affidavit is also an affidavit which contains evidence, and the applicant has proved that William Y. Fungo and William Yohana Fungo are the names which are used interchangeably. Since there is evidence which shows that the two said names are used interchangeably, then this court is satisfied that William Y. Fungo and William Yohana Fungo are the names

of the same person. Concerning the reason for sickness, I find it a genuine reason for the applicant's failure to appear in Court when Land Case No. 357 of 2023 was scheduled for the First Pre- Trial Conference. In addition, this ground of sickness is not contested by the counsel for the 1st respondent. It is a settled principle that health matters, when sufficiently established have been held to constitute good cause, on the ground that in most cases, sickness is not the choice of human being, hence a blame cannot be shouldered on the party when it strikes. In the decision of the Court of Appeal of Tanzania in the case of Emmanuel R. Maira vs. The District Executive Director, Bunda 5 District Council, Civil Application No. 66 of 2010, (CAT- unreported), and John David Kashekya v. The Attorney General, Civil Application No. 107 of 2012 (unreported), it was held that: "Sickness is a condition which is experienced by a person who is sick. It is not a shared experience. Except for children who are yet in a position to express their feelings, it is the sick person who can express his/her conditions whether he/she has the strength to move, work and do whatever kind of work he is required to do..." In the event, this court is satisfied that the applicant has demonstrated sufficient and justifiable reason for non-appearance in Court on 24/10/2024 when the main suit was set for the First Pre trial Conference. The application is therefore allowed and the order of this Court in Land Case No. 357 of 2023 dated 24/10/2024 striking out the applicant's WSD and counterclaim is hereby set aside and the said WSD and counterclaim are hereby restored. The Application is granted. Costs shall be in the cause. A. MSAFIRi: JUDGE 1 18/02/2025 6