rosebay elton mwakabuli vs aziza selemani 2018 tzhclandd 424 13 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 553 OF 2017 ROSEBAY ELTON MWAKABULI......................... APPLICANT VERSUS AZIZA SELEMANI.......................................... RESPONDENT Date o f last Order: 7/5/2018 Date o f Ruling: 13/7/2018 RULING MGONYA, J. The Applicant, ROSEBAY ELTON MWAKABULI through the services of Ms. Anna Marealle, Learned Advocate filed a Chamber Summons praying:- "That this Honorable Court be pleased to set aside dismissal order o f 5th November, 2014 in Land Case No. 171 o f 2012 High Court (Land Division) delivered by Mohamed J. and restore the same. " The Application is supported by an Affidavit sworn by ROSEBAY ELTON MWAKABULI the Applicant. When the Application came up for hearing on 7th May 2018, Ms. Marealle learned Counsel appeared for the Applicant while the Respondent appeared in person, unrepresented. Under the circumstances, Ms. Marealle prayed for an order that the Application be disposed by way of written submissions, the prayer which I accordingly granted. Before I venture to determine the merits of the Application, I wish to make an observation that; indeed it is trite Law that an Application for restoration is entirely in the discretion of the court to grant or refuse it. This discretion however has to be exercised judicially and the overriding is that there must be sufficient cause for so doing. I understand that it is difficult to attempt to define the meaning of the words "Sufficient Cause". However the Court of Appeal of Tanzania in the case of THE REGISTERED TRUSTEES OF THE ARCHDIOCESE OF DAR ES SALAAM VS. THE CHAIRMAN BUNJU VILLAGE GOVERNMENT & 4 OTHERS in Civil Appeal No. 147 of 2016 observed that:- "It is generally accepted however that the words should receive a liberal construction in order to advance substantial justice when no negligence or inaction or want o f bonafides is imputable to the Appellant". The crucial question is this matter is whether the Applicant has established "Sufficient Cause" to warrant this court to employ its discretionary power of grant an Application to set aside the dismissal order dated 5th November, 2014 by Hon. Mohamed, J. In the instant Application, the Applicant through her Advocate submitted that the reason for delay to file for an Application for setting aside the dismissal order within statutory time was contributed by the acts of the Applicants previous Advocate who was trusted to represent her before the court upon the very same Advocate advise that he will attend the matter accordingly and advise the client not to attend to court due to the Applicant's old age and sickness. Further, the said Advocate promised to update the Applicant accordingly on her case. The Plaintiff's Advocate further submitted that the said promise was not fulfilled and as a result the Applicant's case was dismissed due to the Advocate non-appearance to the court as clearly stated by Hon. Mohamed J. in his dismissal order dated 5th November, 2014. The Counsel further averred that the knowledge that the Applicant's suit was dismissed for want of prosecution took time since it was out of the Applicant's knowledge until when she became aware that the Respondent herein had sold the suit land to another person who proceeded to cut down trees, uproot food crops and constructing a house in a high speed. Her efforts to ask her Advocate to restore the Suit proved failure hence the application before the court under supervision and representation of the current Advocate. From the above enlightenment, Applicant pray the court to grant the order sought. Responding to the Application, the Respondent vigorously objected the Application and she was of the view that the Applicant's story is a cooked one and that it was the Applicant's negligence which resulted into dismissal order for want of prosecution. After the length submission countering the Application, the Respondent prayed this court to dismiss the Application with costs the Application in its entirety for lack of merit. 4 Generally speaking, an error made by an Advocate through negligence or lack of diligence is not sufficient cause for the court to grant the prayer for restoration as prayed, hence it was lack of diligence to the Applicant's counsel to pursue wrong remedies. However, there are times depending on the overall circumstances surrounding the case, restoration or any other order sought may be granted even where there is some element of negligence by the Applicant's advocate as was held in by the Court of Appeal of Tanzania in the case of FELIX TUMBO KISIMA VS. TTC LIMITED AND ANOTHER, Civil Application No. 1 of 1997. It should be observed that the term "Sufficient Case" should not be interpreted narrowly but should be given a wide interpretation to encompass all reasons or causes which are outside the Applicant's power to control or influence resulting in delay in taking any necessary step. In the instant case, the Applicant had done all that she could leaving the matter to the hands of his Advocate. In the circumstances, while accepting that there are some element of lack of diligence by her counsel in the circumstances of the case, I join hands with my learned brother Mfalila JA in the above cited case cited (Supra) and hold that the learned counsel's lack of diligence constituted sufficient reason for the court to grant an order sought. Now in our instant Application is to set aside the dismissal order dated 5th November 2014. On the other hand, with due respect, I tend to differ with the Respondent's views that the reason advanced for this Application is a cooked story since she has failed to prove the same under the circumstances. Since I have been of the view that the delay was with sufficient cause, for the reasons stated, the Application to set aside order dated 5th November 2014 is hereby granted. I make no order as to costs. L. E. MGONYA JUDGE 13/7/2018 COURT: Ruling delivered in the presence of Advocate Michael for Applicant and Respondent in person and Ms. Theresia B/c on this 13th day of Julyf 2018 in chamber No. 16 L. E. MGONYA JUDGE 13/7/2018 7