Samamba Peter Masasi (Administrator of the Estate of the Late Chausiku Masasi) v Ibrahim Emmanuel Dabuya and others

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA MISCELLANEOUS LAND APPLICATION NO. 000022486 OF 2025 SAMAMBA PETER MASASI(ADMINISTRATOR OF THE ESTATE OF THE LATE CHAUSIKU MASASI), .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS IBRAHIM EMMANUEL DABUYA, JOHN SOLOLO@JOHN JUMANNE YAMLINGA (ADMINISTRATOR OF THE ESTATE OF YAMLINGA KAHILI), NGASA JUMANNE YAMLINGA , LUCAS JUMANNE YAMLINGA , GRACE JUMANNE YAMLINGA, JOHN JUMANNE YAMLINGA , PRISCA JUMANNE YAMLINGA, ALFRED JUMANNE YAMLINGA, MANYAMA JUMANNE YAMLINGA , MARIA JUMANNE YAMLINGA, BULUGU JUMANNE YAMLINGA, .............................. RESPONDENT / DEFENDANT RULING ROBERT, J The applicant has moved the Court under Order XXXIX rule 19 and section 105 of the Civil Procedure Code, Cap. 33 R.E. 2023 (the CPC), seeking to set aside the order dated 28 August 2025 which dismissed Miscellaneous Land Appeal No. 10392 of 2025 for want of prosecution, to re-admit the appeal for hearing on the merits, and to make costs abide the cause. The application is supported by the applicant’s affidavit. In substance, he states that service was entrusted to an official court process server; that summons were re-issued at his request; that affidavits of service were filed before the hearing date; that several Page. 1 respondents were served or appeared; that others could not be traced; and that the ninth respondent was reported to have died. He maintains that those circumstances were beyond his control and constitute sufficient cause for restoration. The application was argued by written submissions. The applicant reiterated that the process server attempted service and filed eleven affidavits. He placed particular reliance on the proviso to Order XXXIX rule 18 of the CPC, arguing that dismissal was unavailable because the first, second, sixth, seventh and eighth respondents appeared when the appeal was called. He further submitted that the reported death of the ninth respondent called for substitution rather than dismissal and invoked the constitutional right to be heard. The first respondent opposed the application. He contended that the applicant was seeking to re-argue the correctness of the dismissal order instead of establishing sufficient cause under rule 19. According to him, failure to serve the appeal documents, to seek substituted service, to prove the ninth respondent’s death and to commence substitution proceedings were omissions within the applicant’s control. He consequently prayed that the application be dismissed with costs. No substantive response by the other respondents appears in the material placed before the Court. The sole issue is whether the applicant has established a sufficient legal basis for setting aside the dismissal order and re-admitting the appeal. Order XXXIX rule 19 permits an appellant to seek re-admission where an appeal has been dismissed under rule 11(2), rule 17 or rule 18. Upon proof that the appellant was prevented by sufficient cause from appearing when the appeal was called for hearing or from depositing the required sum, the Court is required to re-admit the appeal on such terms as to costs or otherwise as it considers fit. Section 105 preserves the Court’s inherent power to make orders necessary for the ends of justice or to prevent abuse of its process. The applicant appeared on 28 August 2025 and was represented by counsel. Strictly speaking, therefore, this is not the ordinary rule 17 situation of an appellant who failed to appear. Nor does the dismissal ruling contain a finding that the applicant failed to deposit the sum fixed for service. This matters because rule 18 is not a general sanction for every instance of incomplete service. It applies Page. 2 where notice has not been served in consequence of the appellant’s failure to deposit, within the prescribed period, the sum required to defray the cost of service. The applicant is correct that the proviso to rule 18 forbids dismissal under that rule in respect of a respondent who appears when the appeal is called, notwithstanding non-service of notice. The appearance of the first, second, sixth, seventh and eighth respondents therefore could not, by itself, sustain dismissal under rule 18. Their appearance did not, however, cure non- service upon the third, fourth, tenth and eleventh respondents, who were absent. Neither did it dispense with the need to regularise the position of the ninth respondent if he was indeed deceased. The applicant’s argument on the proviso is consequently sound only to that limited extent. I also accept the first respondent’s submission that an application under rule 19 is not an appeal from the dismissal order. This Court should not sit on appeal over its own reasoning. Nevertheless, in determining whether restoration is justified, the Court must examine the circumstances that produced the default and the nature of the order sought to be set aside. That examination is not a disguised appeal; it is the very inquiry required before the Court exercises its restorative and inherent powers. The record discloses positive steps by the applicant. He caused summons to issue, sought their re-issuance when service remained incomplete, engaged the official process server and placed affidavits of service before the Court. Five respondents attended. Those facts are inconsistent with total abandonment of the appeal. They demonstrate an imperfect attempt to prosecute it, not a complete want of interest. At the same time, the applicant and his advocate were not free from fault. Once the affidavits disclosed that some respondents could not be traced, they ought promptly to have sought substituted service. Once the death of the ninth respondent was reported, they ought to have produced reliable proof and taken the steps required by law to determine whether, and against whom, the appeal could continue. The fact that service was undertaken by a court process server did not relieve the appellant of the ultimate responsibility to ensure that his appeal was procedurally ready for hearing. Those omissions must, however, be considered proportionately. They were capable of being cured Page. 3 by directions on substituted service, proof of death and, where legally necessary, substitution. They did not make a fair hearing impossible, nor is any irremediable prejudice to the respondents shown. The original appeal concerns an order extending time for restoration of a land application. A dismissal which finally shuts out that appellate challenge, despite the applicant’s documented efforts and the curable nature of the defects, would be disproportionate to the default. The right to be heard does not excuse non-compliance with procedural rules. Equally, procedure exists to facilitate fair adjudication and should not impose a terminal sanction where a lesser and effective order will secure compliance. Article 13(6)(a) of the Constitution and the decision in Mbeya-Rukwa Autoparts and Transport Ltd v Jestina George Mwakyoma [2003] T.L.R. 251 underscore the centrality of a fair hearing. In the present circumstances, that principle supports restoration subject to strict case- management directions; it does not validate the applicant’s earlier omissions. I therefore find, from the cumulative circumstances, a sufficient basis to invoke Order XXXIX rule 19 read together with section 105 of the CPC. This conclusion is confined to restoration. It expresses no view on the merits of the appeal, on whether the ninth respondent is deceased, or on whether substitution is legally required. Those matters must be regularised and, where disputed, determined in the restored proceedings. Accordingly, the application is allowed on the following terms: 1. The order dated 28 August 2025 dismissing Miscellaneous Land Appeal No. 10392 of 2025 for want of prosecution is hereby set aside. 2. Miscellaneous Land Appeal No. 10392 of 2025 is re-admitted for hearing and shall resume from the stage immediately preceding its dismissal. 3. Parties shall be notified on the date of appearance before the presiding Judge. 4. Costs shall be in cause. It is so ordered. Dated at MWANZA this 11th of September 2026 . Page. 4 K. N ROBERT JUDGE OF THE HIGH COURT Page. 5