serikali ya kjiji ya malangali vs kasim r kekena 2019 tzhclandd 20 27 september 2019

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 233 OF 2019 ,(Arising from the Misc. Land Appeal No 151 o f 2017, from Land appeal No.60 o f 2014 o f the District Land and Housing Tribunal o f Kilosa District, Originated from Land Case No. 22 o f 2014, from Tindiga Ward tribunal) SERI KALI YA KIJIJI CHA MALANGALI.........................APPLICANT Versus KASIM R. KEKENA............... ..................... ........... RESPONDENT Date o f Last Order: 2.9.2019 Date o f Ruling: 27.9.2019 RULING OPIYO J: The ruling results from an application by the above named applicant on the following orders as given in the chamber summons of the said applicant;- 1. That this court be pleased to re-admit Misc. Land Appeal No. 151 of 2017 which was dismissed for want of prosecution by this court on 9/6/2017. 2. Any other orders as this court will deem fit and just to grant. The application is brought under Order XXXIX Rule 19 of the Civil Procedure Code, Cap 33 R.E 2002. It was brought by Mr. Seleman Mapala, the principle officer of the applicant (village chairperson of the applicant village) whose affidavit was in support of this application. Briefly, the background of this appeal is as follows. This case started at the Ward Tribunal of Tindiga Ward in Kilosa District, between the applicant and the respondent. The Ward tribunal decided the case in favour of the applicant The respondent appealed at the District Land and Housing Tribunal for Kilosa District where he won the appeal. The applicant thereafter appealed to this Court in a Misc. Land Appeal No. 151 of 2017 which was dismissed for want of prosecution, following the applicant's failure to file written submissions as ordered (appellant by then). For that reason, the applicant sought for orders among others is a re-admission of the said dismissed case (Misc. Land Appeal No. 151 of 2017). Both parties argued in this application by written submissions. Submitting for the applicant, Mr. Daniel Mwamlima, a solicitor for Kilosa District Council, prayed to this court to readmit the Misc. Land Appeal No. 151 of 2017, because the mistakes done by the village chairman for not filling submissions as required is normal and common to a layman, considering the circumstances of the ignorance to court's procedures the layman always face such mistakes. These mistakes were done not by the applicant, but its representative who is completely layman. She contended that although the chairman was negligent, his negligence should not be used to injure the applicant. He insisted that, it will not be fair to punish the applicant for the mistakes done by the village chairperson who is completely a layman. Since the applicant still intends to pursue his appeal, it will be just and fair if the court will allow this application and then hear the parties on 2 merit and determine the appeal than denying the applicant this right absolutely. The conduct of the applicant should be taken into consideration as the applicant has been prosecuting this case from the beginning as decided in SADRU MANGAJI vs ABDUL AZIZ LALANI AND OTHERS, Misc. Commercial Application No. 126 of 2016. Mr. Daniel Mwamlima continued to argue for the applicant that, it is a principle that, ignorance of law has no excuse, but the applicant's case is a special case considering the fact that, it is an institution and not a natural person. The mistakes of the village chairman who appeared for the applicant in Misc. Land Appeal No. 151 of 2017 ought to be taken as an individual error and the applicant should not in any way be denied the right to appeal as it is a constitutional right given under Article 13 (6)(a), 107A(2) (e) of the Constitution of the United Republic of Tanzania of 1977. There is no need for the court to be harsh on laymen, his mistakes are excusable and the court should use its discretion properly to allow this application because the applicant has shown a sufficient cause for this application to be allowed. His submission was substantiated by the following cases;- Bahati Musa Hamisi Mtopa Vs Salum Rashi, Civil Application No. 112/2007 OF 2018. He further submitted that, in Yusufu Same And Another Vs Hadija Yusufu, Civil Appeal No. 1 of 2002(Unreported), it was held that, "It should be observed that, the term '!'sufficient cause"should not be interpreted narrowly but should be given a wide interpretation to encompass all reasons or causes which are outside the applicants powers to control or influence resulting in delay in taking any necessary step" 3 Also in Mwanza Director M/S New Refrigeration Co. Ltd v Mwanza Reginal Manager of Tanesco and Another (2006) T.L.R 335. It was decided in this case that, "what amounts to good cause for non-appearance depends on peculiar circumstances o f each case" He continued his submission by quoting the Kenyan Case decide by the Court of Appeal of Kenya in GrTHERE Vs KIMUNGU (1985) 1 EA lOl(CAK). "that where there has been a bona fide mistake, and no damages has been done to the other side which cannot be sufficiently compensated by cost, the court should learn towards exercise its discretion in such a way that no party is shut out from being heard; accordingly, a procedural error, or even a blunder on point o f law, on the part o f an advocate (including that o f his clerk), such as a failure to take prescribed procedural steps or take them in due time, should be taken with a humane approach and not without sympathy for the parties, and, in a paper case, such mistakes may be a ground to justify the court in exercising its discretion to rectify the mistakes if the interests o fjustice so dictate, because, the door ofjustice is not dosed merely because a mistake has been made by a person o f experience who ought to have known better, and there is nothing in the nature o fsuch a mistake to exclude it from being a proper ground for putting things right in the interests o fjustice and without damage to the other side. But whether the matter shall be so treated must depend upon the facts o f each individual case. That the relation o f rules to the circumstances to the administration o fjustice is intended to be that o f a handmaid rather than a mistress, and that the court should not be so bound and 4 tied by the rules, which are intended as genera! rules o fprocedure, as to be compelled to do that which will cause injuries in particular case, and this is a principle which a court must remember when judicially exercising its discretionary power." He also invited the court to look the decision of BAHA7I MUSA HAMIS MTOPA vs SALUM RASHID where it was held that, "...we like in the above case, think that, the error committed by the applicant learned counsel was purely a human error. We think that, if this application is granted serious damage no will be done to the respondent who, as the record loudly speaks out, was also not in attendance when the reference was dismissed." The learned counsel for the applicant continued to insist that, the records on the dismissed case show that, a rejoinder instead of submissions in chief was filed in court, this is a clear evidence of confusion by the representative of the applicant due to lack of legal knowledge, it cannot be termed as negligence. The court need to see this application with a public interest's eye, as the matter in dispute (land) is a public property belonging to the applicant, the village. The beneficiaries of the said land are the villagers of Malangali (the whole community). Above all, the principle of ignorance of law cannot be applied to the institution but to individual who appeared for the applicant, refereeing the court to the decision of JESSE KIMANI vs McCORNEL AND ANOTHER (1966). E.A 547. Other cases referred in the applicant's submission are PRINCIPLE SECRETARY MINISTRY OF DEFENCE AND NATIONAL SERVICE vs DEVRAM VALAMBIA, (1992) T.L.R 1, KALUNGA AND COMPANY ADVOCATES vs NATIONAL BANK OF COMMERCE LIM]JED(2006) T.L.R, also FREDRICK SELENGA & ANOTHER vs AGNES MASEKE (1987) T.L.R 99. Concluding his submissions for the applicant, the Mr Mwamlima insisted that, the circumstances of this case are sufficient for the court to invoke the application of Order XXXIX Rule 19 of the Civil Procedure Code Cap 33 R.E 2002. Therefore this application should be allowed. Arguing firmly in reply to the applicant's submissions, the respondent maintained that, the acts of the applicant in Misc. Land Appeal No. 151 of 2017 of failure to file a written submission amounts to disobedience of court rule and orders. It is a trite law that, court orders are to be followed. Failure to obey court orders attracts sanctions. The applicant's representative (Seleman Mapala) was aware of that, and has to face the consequences of his actions. The basis of the respondent's arguments are from the following cases;- one is the case of P.3525 LTCOL. IDAHYA MAGANGA GREGORY vs THE JUDGE ADVOCATE GENERAL COURT MARTIAL , Criminal Appeal No. 4 of 2002, where it was held that, "Court orders are binding and are meant to be implemented. They must be obeyed. I f such orders are disrespected, the system o fjustice wili be rendered useless and will create chiastic that everyone will decide to do anything that is convenient to him". TANZANIA HARBOURS AUTHORITY vs MOHAMED R. MOHAMED (2002) T.L.R 76. Held.... "the court is duty bound to make sure that rules if court are observed strictly and cannot aid any party to deliberately commit lapse" 6 The respondent maintained that, the applicant is a public institution, under local government authority, in particular the Kilosa District Council, which has solicitors who are knowledgeable in legal matters. Also as a government institution, the applicant needed a written approval of the Office of the Attorney General of Tanzania as per section 20(1) of the Office of Attorney General (Discharge of Duties) Act No. 4 of 2005, before allowing to represent it in legal matters, but allowed the village chairperson to represent it without following the required procedures so it should bear the consequences of its actions. He cited the decision by Maghimbi, J in MAUZI SISAL ESTATE LIMITED vs MALANGALI VILLAGE COUNCIL and Misc. Land Application No. 873 of 2016. The village chairperson knew what he was doing and the applicant should bear the consequences of his agent and not otherwise. The applicant's submissions have shown no sufficient reasons for re- admission of the Misc. Land Appeal No. 151 of 2017. This application should be dismissed for lack of merit with costs. I have considered the arguments of both parties for and against the application. It is a settled law that, an applicant seeking to set aside a dismissal order of the court dismissing any suit for want of prosecution he has to furnish the court with sufficient reasons for no appearance when the case was called for hearing as held in SADRU MANGAJI vs ABDUL AZIZ LALANI AND OTHERS, Misc. Commercial Application No. 126 o f 2016 (Supra). In his affidavit in support of this application, Seleman Mapala (chairman of the applicant village), he gave the reason for filling a rejoinder instead of submission in chief as ordered by the court in the case to be re- admitted 7 (Misc. Land Application No.51 of 2016), that, being a layman, he could not capture what was ordered by this Honorable Court. He filed the said Rejoinder believing that is what was required. He annexed the document (rejoinder) with his application as Annexure M l, filed on 5th May 2017. Putting on scales the arguments for and against this application as presented by parties, I now proceed to consider this application as successful. I have gone through the affidavit and satisfied myself that, there were efforts taken by the applicant's representative to abide by the court order of filling written submissions. The act of applicant's representative, of filling a rejoinder on 5th May 2017, within the time which he was supposed to file submission in chief is enough evidence showing his obedience to the orders of the court, but confused of what he was required to do. I agree with the arguments by the applicant's solicitor that, this was not a negligent act, but an act of a confused person who was trying his best to follow the rules and orders of the court. Actually, he did not sit idle but took steps to abide by the orders. Applying the decision of the Court of Appeal in the case ALHAJ MUSA HAMIS MTOPA vs SALUM RASHID, CivilApplication No. 112/07 o f2018 and Court o fAppeal o f Tanzania (Supra), I find the efforts by the village chairman of the applicant's village not to go unnoticed. The village chairman being a lay person without proper guidance, it is common for him to commit such mistakes and that constitutes a sufficient cause to set aside a dismissal order given in the former Misc. Land Application No. 151 of 2016. s Above all, even if the said case will be re-admitted, the respondent will not suffer irreparable loss or be prejudiced by allowing this application. The applicant is the one with a likelihood to suffer irreparable injuries considering the nature of the dispute, and the applicant being a legal person. For interest of justice, it is just and fair not to punish the applicant for mistakes done by his representative. Eventually, the present application is allowed. Miscellaneous Land Appeal No. 151 of 2016 is re-admitted as prayed and shall continue from where it ended before it was dismissed for want of prosecution. No order as to costs. Ordered Accordingly. M. P. OPIYO JUDGE 27/ 9/2019