rehema john vs andrea jeremiah karume 2018 tzhclandd 566 29 november 2018

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION N0.345 OF 2022 (Originating from Misc. Land Appeal No. 118 of 2022) REHEMA JOHN .APPLICANT VERSUS ANDREA JEREMIAH KARUME.... RESPONDENT RULING Date ofLast Order: 09.11.2022 \ Date ofRuling: 29.11.2022 T. N. MWENEGOHA,J. 1 On 30"^ May 2022, Honourable Mwenegoha J dismissed the applicant's case; vide Misc. Land Appeal No.118 of 2022, for want of prosecution. The said appeal followed the decision of the District Land and Housing Tribunal for Kinondoni, vide Land Appeal No. 46 of 2020, upholding the decision of Wazo Ward Tribunal, against the appilcant here in above. Now, the applicant wants this Court to set aside dismissal order and accordingly restore the said case (Misc. Land Appeal No.118 of 2022). The application came under Section 51(1) of the Land Disputes Courts Act, Cap 216, R. E. 2019 and Order IX Rule 4 of the Civil Procedure Code, Cap 33 R. E. 2019. It was accompanied by the affidavit of Rehema John the appilcant herself. The same was heard by way of written submissions. The applicant appeared in person, while the respondent enjoyed the legal services of Advocate Cleophas Manyangu. However, I was composing this ruling, I noted the enabling provisions used by the applicant in this application, do not proviso for the reliefs sought by the applicant. They address something else, different from the prayers of setting aside a dismissal order as sought by the applicant in her chamber summons. The parties were notified and ordered to address the court on this issue. Both complied with the order. I have seen and read carefully the submissions of the parties in respect of the issue raised by this court, though I will not reproduce the same In my ruling for obvious reasons that they all lead to the conclusion that the application at hand is incompetent. Let me however, reproduce the provisions of Section 51(1) of the Land Disputes Courts Act, Cap 216, R. E. 2019 and Order IX Rule 4 of the Civil Procedure Code R. E. 2019. Starting with Section 51 (1) of the Land Disputes Courts Act, Cap 216, R. E. 2019 51.-(1)In the exercise ofitsJurisdictions, the High Court shaii appiy the CiviiProcedure Code and the Evidence Act and may, regardiess of any other iaws governing production and admissibiiity of evidence, accept such evidence and proof which appears to be worthy ofbeiief. As for Order IX Rule 4 of the Civil Procedure Code R. E. 2019, It says 4. Where the court has adjourned the hearing ofthe suit ex-parte and the defendant at or before such hearing, appears and assigns good cause for his previous non- appearance, he may, upon such terms as the court may direct as to cost or otherwise, be heard in answer to the suit as if he had appeared on the date fixed for his appearance. On my part, as I have stated here in earlier, upon looking the provisions quoted here in above and the application at hand, I failed find their relevancy as far as an application for setting aside a dismissal order is concerned. In other words, the applicant has moved the court under wrong provisions of laws. Hence, this Court cannot proceed to determine anything contained in this application as the same is incompetent for the reasons I have wondered to give, see Edward Bachwa &3 Others versus The Attorney General & Another, Civil Application No. 128 of 2008,(unreported). Eventually the application is struck out with costs. No order as to costs. \3RT Op O ❖ o c U T^^rHW^EGOflA 5 n 16. JUDGE r* Si /<■ 29/11/2022