ramadhani hamisi soteri vs wilson mwemvula mpeka and zainabu ramadhani solanga 2021 tzhclandd 205 28 may 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 340 OF 2019 (Arising from Land Appeal No. 152 of 2017) RAMADHAN HAMISI SOTERI.................................................APPLICANT VERSUS WILSON MWEMVULA MPEKA.......................... 1st RESPONDENT ZAINABU RAMADHANI SOLANGA....................2nd RESPONDENT RULING Date of Last Order: 30/03/2021 & Date of Ruling: 28/05/2021 S.M KALUNDE, J:- Aggrieved by the decision of the District Land and Housing Tribunal for Morogoro District at Morogoro ("the tribunal") in Application No. 143 of 2016 dated 20th July 2017, the applicant herein filed Land Appeal No. 152 of 2017 to this Court. On 13th May 2019, Land Appeal No. 152 of 2017 was dismissed for want of prosecution. The applicant intends to pursue his appeal andas such hefiled the present application, seeking for re-admission ofLandAppeal No. 152 of 2017 dismissed by this Court on 13th May 2019. The Application was brought under Order XXXIX Rule 19 of the Civil Procedure Code, Cap.33 R.E 2019 ("the CPC") and supported by the affidavit of Mr. Mashaka Edga Mfala, the learned counsel for the Applicant. 1 |P age Leave was granted for the hearing of the application to be conducted through written submissions. Submissions of the applicant were drawn and filed by Mr. Mashaka Edga Mfala, learned advocate and the respondents did not have any legal representation so they filed their joint submissions on their own. Inaccordance with Order XXXIX Rule 19 of the CPC an appeal dismissedmay be re-admitted if it is proved that the appellant was precluded by "sufficient cause" from appearing when the appeal was called on for hearing. The section reads, I quote: "Where an appeal is dismissed under sub-rule (2), o f rule 11 or rule 17 or rule 18, the appellant may apply to the Court for the re-admission o f the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit "[Emphasis added] In light of the above section, for the applicant to be successful in an application of this nature, he has to satisfy the Court that his or her non- appearance on the date of hearing was occasioned by "good cause". In his submission Mr Mfala submitted that, on 13th May 2019 when the Land Appeal No. 152 of 2017 was fixed for hearing he failed to appear because he was sick, instead he requested another advocate to hold brief for him. When the advocate appeared before the Judge he was granted a short adjournment to prepare himself and appear for hearing at 14:00hrs. Later, when the matter was called in for hearing at 14:00hrs the advocate did not appear; and since he was still sick, Mr. Mfala did not appear as well, as a result the appeal was dismissed. 2 |Page Mr. Mfala argued that, sickness, if supported medical chits was a sufficient cause for re-admission of an appeal dismissed for non- appearance. He thus requested for the Court compassion in re-admitting the appeal. In support of his argument he appended a National Health Insurance Fund Form dated 13th May 2019 witnessing that he was suffering from Dengue Disease and was prescribe for bed rest. In their reply, the respondents submitted that the reason that the counsel for the applicant was sick was not a sufficient reason to restore the case which was dismissed. They went further to state that the Law of Limitation Act Cap 89 R.E 2019 under Rule 9 of the Schedule provides re-admission of an appeal for want of prosecution is limited to thirty days. Therefore, they submitted that this application is out of time. They also stated that the record shows the counsel for the applicant has never attended to the court whenever the case was scheduled for hearing until when it was dismissed, he has been sending legal officers or advocate to adjourn the case without considering that the respondents reside out of Dar es Salaam. Admittedly, the position of the law is that sickness accompanied by proof or attachment of medical reports is a sufficient cause or good cause for re-admission of appeal dismissed for non-appearance. This view has been taken by the Court of Appeal in various decisions including in the unreported cases of Director Ruhonge Enterprises vs January Lichinga, Civil Application No 1 of 2006, CAT-DSM; Kalunga and Company Advocates vs National Bank of Commerce Ltd (2006) TLR 235; and John David Kashekya vs. The Attorney General, Civil Application No. 1 of 2012. However, for the 3 |Page above position to be considered the application must be filed within the prescribed period or leave must have been sought and granted for it to be filed out of the prescribed time limit. It is also true that an application for readmission of an appeal dismissed for want of prosecution has to be filed within thirty (30) days from the date of the dismissal order. It is on record that Land Appeal No. 152 of 2017 was dismissed on 13th May, 2019 as such the clock for filling the application to set aside the dismissal order started ticking on 14th May, 2019 and expired on 12th June, 2019. The present application was filed on 24th June, 2019 twelve days later. In his submissions Mr. Mfala did not provide any explanations on why he was late in filing the application. He also did not even attempt to explain for how long he was under bed rest. Obviously, he must have been notified by the advocate holding brief for him; and upon such notification, the counsel ought to have taken immediate steps or actions upon noticing that his client's case has been dismissed. He did not do so until the limitation period expired. That is a clear demonstration on negligence or sloppiness on the prosecution of this matter. It is not clear why the counsel failed to take necessary steps to peruse the application within the prescribed period. In the event that the applicant failed to explain why they did not pursue the application within the period prescribed by law, the medical report attached cannot be said to offer any plausible account of why they delayed in filing the application. In Ludger Bernad Nyoni vs National Housing Corporation (Civil Appl. No.372/01 of 2018) [2019] TZCA 154; (06 May 2019 TANZLII) the Court of Appeal held that: 4 |Page I would also agree with learned counsel for the " ... respondent that the three annexed medical reports make a blanket claim that the applicant was in bad health between December, 1999 and July, 2018. He might have been Hi as alleged and, indeed, at the hearing before me he was visibly frail and infirm. Nonetheless, it remains unclear why he was unable to take the necessary steps to pursue the intended revision if he was able to commute periodically to attend clinic at Amana Regional Hospital. In my view, these reports do not provide any detailed and plausible account of the delay." [Emphasis mine] It should be noted that, for applications of this nature to be merited the applicant must demonstrate diligence and promptness on his part; and not apathy, negligence or sloppiness in the prosecution of the action he intends to take. It was not sufficient for the counsel for the applicant to attach medical reports, he ought to have explained why it took him more than 40 days to file an application, when the law required him to file it within 30 days. Clearly, the present application was filed outside the time limit fixed under Cap. 89 and no explanation has been offered. For the foregoing reasons, the application is struck out with costs for being filed out of time and without leave of the Court. It is so ordered. DATED at DAR ES SALAAM this 28th day ofMAY, 2021. //* > ' / '-V.Y;/ V.'. t - •>. f/ < 7 ; iV - . Y . L ' f . "S.M. KALUNDE^W ,;; JUDGE divW"' 5 |Page