reginald martin mushi vs sijali jafari and 2 others 2021 tzhclandd 682 18 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 141 OF 2017 (Originating from Land Case 252 of 2014) REGINALD MARTIN MUSHI APPLICANT VERSUS SIJALI JAFARI 1®^ RESPONDENT JUMA DINTO Z"" RESPONDENT RAMADHANI UPO 3"" RESPONDENT HAMISI HARUNA 4™ RESPONDENT HERIKI MREMA 5™ RESPONDENT SAIDI KITELEKO 6™ RESPONDENT MDINI KASIMU 7™ RESPONDENT HAJI SAIDI 8™ RESPONDENT RAMADHANI JAFARI 9^" RESPONDENT ABDALLAH HUSSENI 10™ RESPONDENT JOSEPH DATI 11™ RESPONDENT MSHAM MUSA 12™ RESPONDENT HARUNA CHANDE 13™ RESPONDENT HAMADI HADI 14™ RESPONDENT RAJABU ABDULA 15™ RESPONDENT FELIKISI MRIGO 16™ RESPONDENT YASINI SILANDA 17™ RESPONDENT MWANAISHA MOHAMED 18™ RESPONDENT SALMA SHOMARI 19™ RESPONDENT SAIDI MACHO 20™ RESPONDENT SAIDI MBEGU 21®t RESPONDENT NURU ALLY 22'''> RESPONDENT Date oflast Order: 21/04/2021 Date ofRuling: 18/06/2021 RULING MANGO,3. The Application at hand is for setting aside dismissal order issued by this court in Land Case No. 252 of 2014 on 21^ February 2017. The application is by way of Chamber Summons made under Order IX Rule 9(i) and section 95 of the Civil Procedure Code Cap. 33 R. E. 2002], supported by affidavits sworn by the applicant and his advocate, one Amini Ndama Mziray. The respondents contest the application and they filed a joint counter affidavit to that effect. The respondents were represented by Mr. Omega Y. Semmy,learned advocate. By consent of the parties, the application was argued by way of written submissions. According to the affidavits filed in support of this application and the submission filed by the applicant's advocate the reason that caused non- appearance of the applicant and his advocate was sickness. The applicant's advocate is diabetic and he has low blood pressure challenge. On the date the dismissal order was issued his health was not good while the applicant was feeling sick though his efforts to be medically examined were unsuccessful. In his reply submission, the respondents' advocate argued that, the alleged sickness of the applicant and his advocate is not proved by medical chits thus, it cannot be considered to be a sufficient reason for their non-appearance when the matter was dismissed for want of prosecution. He also highlighted the fact that the court issued a last adjournment order on the prior date thus, it was justifiable for the court to dismiss the case. He argued further that, the applicant and his advocate were not attending court proceedings regularly. In his rejoinder the applicants advocate reiterated his submission in chief and submitted further that, it is true that their sickness is not proved by medical evidence because they did not consult medical doctors. They had their diseases treated at home. On the last adjournment order, he submitted that the same was issued against the respondents who were not attending court sessions regularly. He added that, the applicant and his advocate were regularly attending court proceedings except on the date when the dismissal order was issued. I have considered submissions by both parties and court record. According to court record it is true that the applicant and his advocate has been attending court proceedings in Land Case No. 252 of 2014 regularly. In case of their absence, they always notified the court on their absence. The record reveals further that the last adjournment order was issued against the defendants' counsel on 27*'' September 2016. The order reads; "Counselfor the defendantsis given the iast adjournment opportunity to appear and prosecute this matter. Finai PTC to be on 23/11/2016. The Defendants to notify their counsel accordingly". On the 23'" November, 2016 Final PTC was conducted in present of both the applicant's counsel and the defendants counsel, then the matter was scheduled for hearing on 21^ February 2017. The appiicant and his advocate did not appear on the scheduled date and the matter was dismissed for want of prosecution. The law, Order IX Rule 9(1) of the Civil Procedure Code, [Cap. 33 R.E 2002] requires the applicant in an application to set aside dismissal order issued for want of prosecution under order IX Rule 8,to advance a sufficient cause for his non- appearance when the suit was called on for hearing. The applicant advanced his sickness and his advocates sickness as the reason for his non-appearance on 21^ February 2017 when his case was dismissed. I agree that the applicant and his advocate did not attach any medical chit to their affidavits as a proof of the alleged sickness. However, the fact that the respondents did not adduce any fact that tend to counter the sickness of the applicant and his advocate makes this court consider the facts adduced by the applicant and his advocate to be true on balance of probabilities. Affidavit being evidence, its contents is countered by a counter affidavit. The respondent ought to have deposed in their counter affidavit, facts that tend to contradict what is contained in the affidavit or pray to cross examine the deponent of the affidavit as affidavit is taken to be evidence in lieu of evidence in chief. The respondents merely disputed the contents of the affidavit regarding the sickness of the deponents without stating facts that contradicts the contents of the affidavit. In such circumstances this court considers the applicant and his advocate's sickness to be true. In holding so I have also considered the circumstances of this application, especially the record of attendance which establishes that the applicant and his advocate has been attending court proceedings regularly. Sickness has been considered to be a sufficient ground for setting aside dismissal order in among other cases the case of PIMAK PROFESYONEL MUTFAK LIMITED SIKETI VERSUS PIMAK TANZANIA LIMITED AND FARHA ABDULLAH NOOR MISC. COMMERCIAL APPLICATION NO. 55 OF 2018, HIGHCOURT OF TANZANIA, COMMERCIAL DIVISION. I also consider the Applicant's and his advocate's sickness to be a suffice ground to set aside the dismissal order in Land Case No. 252 of 2014. The dismissal order in Land Case No. 252 of 2014 is hereby set aside. Given circumstances of this case I award no costs. Each party should bear Its own costs. Ot o m Z D. MANGO JUDGE X 3. /0^2021 > iAHD