REGINA MADUKA Extension of time No good cause1 final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA MISC. LAND APPLICATION NO. 27521 OF 2024 (Arising from Land Appeal No. 19149 of 2024) REGINA MADUKA…………….…………………………APPLICANT VERSUS 1. LIMBU NTALIMA 2. ESTER KAPANDE ………………..……………RESPONDENTS RULING 13th January, & 7th February, 2025 MASSAM, J: - The applicant in this case filed this application pleasing this court to set aside dismissal order and re admit the same for hearing Land Appeal No. 19149 of 2024 which was dismissed for want of prosecution. The application is made by way of chamber summons made under Order XXXIX Rule 19 of the CPC Cap 33 R:E 2019, which accompanied by affidavit sworn by the applicant supporting the application and opposed by the counter affidavit dully sworn by 2nd respondent while the 1st respondent conceded the application. Both parties appeared in person unrepresented and the application was heard orally. Arguing in support of her application, the applicant prayed this court to re admit her case and proceed for hearing on merit 1 with her case because she was suffering from stomach and she sent Limbu Ntalima, (1strespondent) to inform the court on her absence. Similarly, 1st respondent prayed this application to be granted as the summons which was supplied to them has a different date with the one which appeared to the court records. He added that the summons which was given to them was written the wrong date and they attended the next date. Finally, he prayed this court to re admit their appeal which was dismissed. On her part, the 2nd respondent said that she received a summons which shows that the matter was coming for hearing on 26.9.2024, but the applicant forged the summons and insert a different date which is 27.9.2024. She added that applicant failed to brought a sufficient reason for readmission, as she failed to attend to the court on 26.9.2024. In the way of rejoinder, applicant had nothing to add. This court after having heard and consider the submissions by both parties, the issue left to consider is whether the application discloses sufficient cause for re admission. In accordance with Order XXXIX Rule 19 of the CPC an appeal dismissed may be re-admitted if it is proved that the appellant was 2 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), of rule 11 or rule 17 or rule 18, the appellant may apply to the Court for the re- admission of 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 nonappearance on the date of hearing was occasioned by "good cause". Coming to our case, the applicant adduced the reasons that she was sick, that why she didn’t appear to the court, and she sent 1st respondent to inform the court different from what she stated under paragraph 3 of her affidavit that ‘’the absence before the High Court on 26th day of September 2024 and days before when the matter was fixed for mention was not my default rather I was given a summons concerning my appeal and the same indicates that I was supposed to appear on 27th September, 2024 and not before’’. However, her reasons stated in her affidavit was conceded by the 1st respondent in his 3 submission while 2ndrespondent opposed the same that she received a summons which shows that the matter was coming for hearing on 26.9.2024, but the applicant forged the summons and insert a different date which is 27.9.2024. I have scanned submission from both parties and going through the court records. Indeed, the applicant adduced two reasons for readmission of her appeal which are sickness and the date fixed for hearing. Despite the fact that the reasons of sickness were not stated in her affidavit, but was adduced during hearing of application, I will respond the same for interest of justice. It is trite law 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. 4 Now, from the court records, the applicant did not prove that she was sick and there was no medical report attached so as this court should consider her sickness as sufficient cause for readmission of her appeal. In the premises, the reasons for sickness was not proved and cannot be considered as the sufficient reasons for readmission. On the issue of the date fixed for hearing. The applicant said that she received the summons indicated that the matter was fixed for hearing on 27/09/2024 but her appeal was dismissed on 26/09/2024. Likewise, the 1st respondent conceded with her submission while the 2nd respondent argued that the matter was fixed for hearing on 26/09/2024 but summons was forged and inserted that the matter was coming for hearing on 27/09/2024. I have considered submission from both parties and have plentiful time going through the court records. It is undisputed that her appeal was dismissed for want of prosecution on 26th September, 2024.The records show that the applicant did not appear before the court fourth times i.e on 12/8/2024, 2/09/2024, 17/09/2024 and 26/09/2024 when the matter was dismissed for want of prosecution. In Land Appeal No 19149 of 2024 the record shows that on 12th August, 2024 the summons was issued to the respondents and the matter was fixed on hearing on 5 2nd September, 2024 and the summons issued bears the signature of Deputy Registrar with court seal and rubber stamp both in original nature ”sahihi na mhuli mbichi”. However, the summons attached by the applicant to her affidavit (M1) so as to prove that the matter was fixed on 27th September, 2024 it shows that the summons was received by the 1st respondent on 20/09/2024, and the same was a photocopy and worse it was inserted a new date that the matter was fixed on 27th September, 2024 and was issued on 2nd September, 2024. Moreover, Annexure (M1) revealed that, the date 27th, 2nd and the word September were inserted different from the original summons. From that observations. I agree with the 2nd respondent that the summons was forged and inserted that the matter was coming for hearing on 27/09/2024 while the original summons issued on 12th August, 2024 shows that the matter came for hearing on 2nd September, 2024. In the premises I find that the applicant has not adduced sufficient reasons for readmission because the purported summons was forged and inserted the new date and month. Likewise, court proceedings are controlled by the presiding judge or magistrate, parties cannot decide to do contrary to the court's order. I warn the bad behavior showed by either litigant or 6 any other person to forge the summons issued by this honorable court to bear the date the parties so wishes. From observations above, the applicant has failed to show good cause for readmission of her appeal. I therefore dismiss this application with costs for want of merit. It is so ordered. Dated at Shinyanga this 7th day of February, 2025. R.B. Massam Judge 7