ramadhani almas korongo 3 others vs leonald florine sakumo another 2023 tzhclandd 17224 18 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 620 OF 2023 (Originated from Land Case No. 279 of2022) RAMADHANI ALMAS KORONGO........................................................... 1stAPPLICANT FATMA MOHAMED RAFIKI HAJINURU................................................. 2ndAPPLICANT

MOHAMED OWEIZ MOHAMED RAFIKI HAJI MOHAMED.................................................... 3rdAPPLICANT

VERSUS LEONALD FLORINE SAKUMO.......................................1st RESPONDENT SOSPETHER CLAVERY KAMUGISHA............................ 2nd RESPONDENT

RULING 3CD November, 2023 & l$h December, 2023 L HEMED, J. This ruling is in respect of both the preliminary objection against, and the Application itself. It should be noted that behind the instant matter, there was Land Case No. 279 of 2022, which was called for hearing on 06th September, 2023. On the particular date, the applicants herein who were the defendants in the said Land Case did not enter appearance. The plaintiffs (respondents herein) opted to withdraw their suit with liberty to i refile. The fact that the applicants herein were not present on the said date to address the court on the fate of their counter claims, this court opted to dismiss it for want of prosecution. Aggrieved by the dismissal order of the counter claim, the applicants rushed to this court with the instant application looking to set aside the said order. The Application was supported by the Affidavit of REGINALD SHIRIMA, advocate of the applicants. The respondents challenged the application vide the counter affidavit of one LUSAJO WILLY, advocate of the respondents. Mr. Lusajo Willy also raised a preliminary objection on point of Law thus: " i. The applicant's application is bad in law and incurable defective as it offends Order IX Rule 6(1) of the Civil Procedure Code, Cap 33 R.E 2019 and conflict with the Order of this Honourable High Court in Land Case No. 279 of2022 dated

06/09/2023...." Both, the application and preliminary objection were argued by way of written submissions. The applicants were represented by Mr. Reginald Shirima, advocate, while the respondent enjoyed the service of Mr. Lusajo Willy, learned counsel. Submissions were promptly filed as directed by the 2 court. Let me start with the preliminary objection. Having gone through the written submissions of both parties, rival to each other, I realized that, the basis of the objection is the prayer in the chamber summons where, the applicants appear to move this court to restore the counter claim in Land Case No. 297 of 2023 instead of Land Case No. 279 of 2022. It was also stated that the provision used to move this court to set aside the dismissed order, that is, Order IX Rule 6(1) of the Civil Procedure Code, [Cap 33 RE 2019], is inapplicable in the circumstance of this case. The learned advocate of the respondents was of the view that the provision cited, applies only when there are multiple defendants, one attends and others disappear. He asserted that in the instant matter, all applicants (who were the defendants) did not appear on the fateful date. In fact, I have noted existence of such anomalies. The applicants are seeking to set aside the counter claim in Land Case No. 297 of 2023 which is quite different from Land Case No. 279 of 2022. I am at one with the counsel for the

respondents that the present parties have never been parties to Land Case No. 297 of 2023. I have also noted that the provision used to move this court to act on the prayers sought are not relevant. 3 In his reply submissions, the counsel for the applicants stated that the number of the case cited was a topographical error which cannot be the basis of the objection. As to the wrong citation of the enabling provision of the law, he stated that there is no wrong citation as submitted. The question is whether the two anomalies are fatal! As to the number of Land Case, I am of the firm opinion that it is curable as it was a slip of a pen. I am holding so because all parties and the court are aware that the counter claim which was dismissed was in respect to Land Case No. 279 of 2022. I am thus of the firm view that the error is curable. With regard to wrong citation of the enabling provision, I feel apt to apply the oxygen principle as provided under section 3A of the Civil Procedure Code, [Cap 33 R.E 2019], that requires the court to avoid technicalities in dispensation of justice. In my firm opinion, as long as this court has jurisdiction to grant the prayer sought, wrong citation of the enabling provision cannot warrant the court to strike out the application. From the foregoing, the points of objection seem to be valid, but the anomalies pointed out are curable under the oxygen

principle. Let me now turn to the merits of the Application itself. In the instant 4 matter as aforesaid, the applicants are seeking to set aside the dismissal order of the counter claim in Land Case No. 279 of 2022, dated 6th September 2023. According to Order IX Rule 3 of the Civil Procedure Code, [Cap. 33 RE 2019] a suit (counter claim inclusively) can be restored if: - "... the plaintiff....satisfies the court that there was a good cause for his non-appearance....." The question is whether the applicants have demonstrated good cause for their non-appearance on 6th September 2023. I have gone through the entire affidavit deponed to support the application to find out if there are reasons stated therein. I also read thoroughly the applicants submissions filed to support the application with the same motive of finding the amplified cause(s) for the non-appearance of the applicants on the fateful date. In fact, I could not find any cause stated by the applicants for their non- appearance on the 6th September, 2023. What I have observed from both, the affidavit deponed by Reginald Shirima and the submissions of the applicants, are blames. The counsel for the applicants has leveled blames against the court for calling the matter on 06th September 2023 instead of 7th September 2023. The said blames forced me to revisit the proceedings of Land Case No. 279 of 2022 and found that on

16th August 2023, Mr. Reginald Shirima, advocate 5 of the applicants herein did not appear, instead he sent one Hemed Nassoro, advocate to hold his brief. The proceedings of the said date unequivocally show that the matter was adjourned and fixed to proceed for hearing on 6th September 2023. Therefore, going through the proceedings of 16th August 2023 and 6th September 2023, Land Case No. 279 of 2022 was in a proper track. It is my firm view that since the applicants appeared on 16th August 2023 through Mr. Hemed Nassoro, learned advocate they were aware of the matter to come for hearing on 6th September 2023. The applicants deliberately or negligently opted not to appear on the fateful date. Therefore, the negligent action of the applicants of disappearing on 6th September 2023, cannot in anyway salvage the applicants from suffering the consequences thereof. The applicants have also asserted that the dismissal of the counter claim on 6th September 2023 was done prematurely. In their view the court ought to have adjourned the matter and fixed the counter claim to be heard on another date. It should be noted that appearance of the applicants on 6th September 2023 was paramount as their presence would have helped the court to make 6 directives on how the counter claim would have been determined following the original suit being withdrawn. In fact, it is also well known to the

parties, that, the original suit and the counter claim were to be determined concurrently/simultaneously, that is why even the issues were framed to cater for both the original suit and the counter claim. This being the case, on 6th September 2023 was the date fixed for hearing of both the main suit and the counter claim. Therefore, the non-appearance of the applicants on the fateful date entitled the court to draw inference that the applicants had no intention to prosecute their counter claim. The counter claim was thus properly dismissed as the applicants failed to appear. Besides, this is not an application for review, rather an application to set aside the dismissal order. The only thing ought to be done by the applicants as per Order IX Rule 3 of the Civil Procedure Code (supra) is to show good cause for their non-appearance on 6th September 2023. In the instant case, the three applicants also did not appear on 6th September 2023, however, there is no affidavit whatsoever deponed to state what prevented all three applicants from appearing on the said date. Additionally, even in the affidavit of Mr. Reginald Shirima, it has not been categorically stated as to why the advocate of the applicants failed to 7 attend the matter on the fateful date. In the entire affidavit, he has raised arguments and blames against the court. In the final analysis, I find no good cause having been demonstrated to warrant this court vacate the dismissal order in Land Case No. 279 of 2022. I hereby proceed to dismiss the entire application with costs. It is so ordered. DATED at DAR ES SALAAM this 18th December 2023. 8