salima selemani

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO MISC. LAND APPLICATION NO. 14243 OF 2024 {Arising from the Judgement and Decree ofthe High Court in ofMorogoro in Land Appeal No. 2967of2024 dated 2^'^ April 2024) SALIMA SELEMANI (Administrator of the Estate of the late Selemani Juma) APPLICANT VERSUS ILUMINATA MUSHI ....1®' RESPONDENT HAFIDHI SELEMANI 2"'' RESPONDENT RULING 07/08/2024 & 22/08/2024 KINYAKA, J.: On 17^^ July 2024, the applicant moved this Court for readmission of her Land Appeal No. 2967 of 2024 which was dismissed for want of prosecution by this Court on 25^^ April 2024. The application is supported by affidavit affirmed by Ndanu Emmanuel, learned Counsel for the applicant. The grounds in support of the application are found In paragraphs 4, 5, 6, 7, and 8 of the affidavit where it was alleged that the applicant complied with the order of the Court by lodging her written submissions within 7 days on 2"^ April 2024 in the morning but the admission of the same was delayed 1 ^ until 3^^ April 2024 when the control number was generated and filing fees were paid. The applicant's learned counsel attached a print out from the electronic case management system hereinafter the "online system" appended to the affidavit as Annexure SSM-1 to substantiate that he lodged the written submissions on 2"^ April 2024. It was also contended in paragraph 7 that out of the seven days which ended on 2"^^ April 2024, the applicant could not lodge the written submissions prior to that date as the 29^^ day of March was good Friday and April 2024 was Easter Monday. It was contended in paragraph 8 of the affidavit that it was not in the control of the applicant to process the admission of the submissions in the online system though she complied with the requirement of the Judicature and Application of Laws (Electronic Filing) Rules, G.N. No. 148 of 2018 hereinafter, the "Rules". The 1^ respondent resisted the application in her counter affidavit by contending that the applicant failed to indicate at what time she lodged the written submissions in the online system. Similarly, the 2''^ respondent in his sworn statement opposed the application by contending that the applicant had fourteen days to file her written submissions but decided to file the same on the last date which demonstrates negligence on her part. On the hearing date, Ms. Mariam Kapama, learned Counsel appeared holding brief for Mr. Ndanu Emmanuel, learned Counsel for the applicant. Ms. Kapama informed the Court that she had instructions to proceed with hearing of the application. The respondent was duly represented by Mr. B.L. Tarimo, learned Counsel while the 2"*^ respondent appeared in person unrepresented. In support of the application, Ms. Kapama adopted the contents of the affidavit sworn by Mr. Ndanu Emmanuel In support of the application as forming part of the applicant's submissions in chief. She submitted that the applicant filed her written submission well within time ordered by the Court on 2"^ April 2024 but the same was not processed by the Court on the same date for filing until on 3^^ April 2024. She argued that the applicant had no control over the admission process on the online system but the Court. Ms. Kapama prayed for the grant of the application, costs and any other relief the Court would deem just to grant. Mr. Tarimo resisted the application by adopting the contents of the counter affidavit sworn by the respondent. He argued that in order for the applicant to shift the burden to Court, she ought to have stated the time when she filed her written submissions in the online system. She resisted 4:r the prayer for costs contending that It is her client who deserves costs in the circumstances. The 2"^ respondent had nothing much to say apart from adopting her sworn statement opposing the application where he contended that the applicant was negligent to file her written submissions on the last day while he had 14 days to file the same. In rejoinder, Ms. Kapama submitted briefly that it was stated in paragraph 4 of the affidavit that the applicant's written submissions were uploaded in the online system on 2"^ April 2024 in the morning. She reiterated that the delay was not caused by the applicant but the admission process on part of the Court which the applicant had no control of. Having heard the parties' submissions, and upon close scrutiny of the affidavit of the applicant, the counter affidavit of the 1^ respondent and sworn statement of the 2"^ respondent, I now turn to determine whether the present application is merited guided by the law as stipulated under Order XXXIX Rule 19 of the Civil Procedure Code Cap 33 R.E. 2019 which regulates re-admission of appeals dismissed for want of prosecution. The said provision states: "Where an appeal is dismissed under sub-ruie (2), ofruie 11 or ruie 17or ruie 18, the appeiiant may appiy to the Court for the readmission 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 shaii re-admit the appeal on such terms as to costs or otherwise as it thinks fit" [Emphasis added] I should state at the onset that contrary to the 2"^ respondent's averment that the applicant was given fourteen days to file her written submissions, the Court ordered the applicant to lodge the same within seven days. Be that as it may, I cannot hold the applicant negligent for filing her written submissions on 2"^ April 2024 considering that on 29^^ March 2024, it was a good Friday, 30^^ March 2024 was Saturday, 31^ March 2024 was Sunday, and April 2024 was Easter Monday. It means that four days within the seven days the Court ordered the applicant to file her submissions in chief, were public holidays. It is on record that the applicant duly lodged her submissions on 2"^ April 2024 well within the time ordered by the Court. This was not opposed by the respondents. The respondents did not dispute that the admission process and clearance of any document, be it a pleading or submission filed in the online system, is within the control of the Court and not the person who uploads the same. The respondent's opposition to the application on the ground that the applicant did not state time when she uploaded the written submissions in the online system is duly answered by the contents of paragraph 4 of the affidavit, that the same were lodged on 2"'^ April 2024 in the morning. Even if the same was filed after the Court's working hours, Rule 21(1)of the Rules provides that the time for filing a document in the online system is on that specific day up to midnight. East African time. Rule 21(1) of the Rules provides: '14 document shall be considered to have been filed if it is submitted through the electronic fiiing system before midnight, East African time, on the date it is submitted, unless a specific time is set by the court or it is rejected. Based on the above observations, the applicant managed to demonstrate sufficient cause warranting this Court to readmit her Land Appeal No. 2967 of 2024 which was dismissed by this Court on 25^^ April 2024 for want of prosecution. Regarding the prayer for costs, I do not agree with Ms. Kapama that under the circumstance of the present application, an order for costs is justified. Although costs are awarded to a party who wins a case, the same Is awarded at the discretion of the Court upon assessing the circumstance of a particular case. In deciding as to whether the Court should award costs of the suit to the appellant in the case of Nyakato Sadiki Mkama v. Frank Daudi (minor) (suing through His Next Friend Fatuma Maganga), Civil Appeal No. 30 of 2015 [2016] TZCA 234(27 April 2016), the Apex Court was inspired by its decision in the case of Mohamed Salmini v. Jumanne Omari Mapesa, Civil Appeal No. 4 of 2014 (unreported) where it was underscored that: "As a general rule, costs are awarded at the discretion of the court. But discretion is judicial and has to be exercised upon established principles, and not arbitrarily or capriciously. One of the established principles is that costs would usually follow the event; unless there are reasonable grounds for depriving a successfulparty ofhis costs." I subscribe to the line of reasoning in the above authority. Apparently, the present application was brought by the applicant upon the dismissal of her appeal for want of prosecution. It means that the present cause was invoked after the applicant's slippery to pay for filing fees one day after the last date of filing her submissions. Succumbing the respondents to costs will be punishing them for the mistake of the applicant who brought the present application seeking readmlssion of her appeal after the same was dismissed for want of prosecution. In the final result, I do not find an order for costs will be appropriate In the circumstance. On the merit of the present application, I hold that the applicant managed to demonstrate sufficient cause warranting this Court to readmit the applicant's Land Appeal No. 2967 of 2024. Consequently, I allow the application and set aside the dismissal order of this Court In Land Appeal No. 2967 of 2024. Considering that the present application was brought by the applicant after her Land Appeal No. 2967 of 2024 was dismissed for want of prosecution, and the present application is for re-admlsslon of the said appeal, I make no order as to costs. It Is so ordered. DATED at MOROGORO this 22"^ day of August 2024. H. A. KInVaKA JUDGE 22/08/2024 Court Ruling is ready and delivered In the presence of Mr. Gharle, Learned advocate for the applicant, both respondents in person and the Court Clerk. Right of Appeal Fully Explained. c LU S lawa X :rir EPUTY REGISTRAR 22/008/2024