shukuru elias nyaringa vs albetina luis mwanalinze 2023 tzhc 19302 25 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPLICATION NO. 14 OF 2022 (Originating from the District Land and Housing Tribunal for Rukwa at Sumbawanga in Misc, Land Application No. 16 of 2021, Originated from Misc. Land Appeal No. 44 f 2020 High Court: of Tanzania at Sumbawanga) SHUKURU ELIAS NYARINGA ............................. APPLICANT VERSUS ALBETINA LUIS MWANALINZE .......... .................RESPONDENT 20/07/2023 & 25/07/2023 M RULING MWENEMPAZI, J: The applicant has made this application under section 6 of the Judicature and Application of Laws Act,- Cap 1 R.E 2002 and section 95 of the Civil Procedure Code, Cap 33 R.E 2022, He is applying for orders of this Court to restore Misc. Land Application No. 16 of 2021 which was dismissed for want of prosecution on the 30th May, 2022 by Hon. Nkwabi Judge and that the Court may issue any other reliefs it deems fit just and proper in the circumstances of this application to grant. i The application is being made at the instance of Budodi Advocates Zonal law chambers and it is supported by the affidavit of Shukuru Elias Nyaringa and Alexander Sichilima the applicant and Court clerk respectively. In the affidavit the applicant has deposed that he filed an appeal Land Appeal ■fe. No. 44 Of 2020 and to represent him, he instructed Mr. Heth Sombiro Mawalla - Advocate. The advocate assured him that the applicant's presence, is not necessary. The applicant therefore let the advocate proceed with full instructions in his absence and that the advocate had to update the applicant on final results. As a result, the applicant proceeded with other businesses leaving the case to be under care of advocate. The advocate kept assuring the applicant that everything was in order. Later in 2022 the applicant ..noted that the advocate named was un responsible to the calls. And' upon making follow up on the Court registry on 25th day of 2022. he was surprised to be informed that Land Appeal No. 44/2020 was dismissed for non-appearance and the advocate MaWalla, filed an application Misc. Land Application No. 16 of 2021 which was also dismissed on 30/05/2022. 2 In order to make good of the incidences the applicant sought advice from Mr. Deogratius Sanga, Advocate who advised him to file another application, hence this application. The fact that the applicant made follow up at the Court registry has been confirmed by Mr. Alexander Sichilima in his affidavit. In general, therefore the reason for dismissal of the appeal is the conduct of the former advocate, Mr. Mawalla; in no way the applicant contributed such omission and thus he doesn't deserve being penalized. -‘,7^. At the hearing, on the 17/07/2023, the applicant was present and the • ■•■•Ji. '" w .■ • '■ • ■•=•'■• ,-z ’• I "’: '•• ’ ■•>'■•'_••■•■ respondent was absent for being sick. Since she is a resident of Mpanda, arrangement were made to hear the application online through video conference. .. .,•< On the 20/07/2023 hearing was conducted through video conference and the respondent had to use facilities at the Resident Magistrates' Court of Mpanda. The applicant was represented by Mr. Mathias Budodi Advocate, who was also online. The advocate, prayed the application and affidavit be adopted as part of the submission. He then informed this Court that the reason to apply is the dismissal of the application No. 16 of 2021 for non-appearance which in turn 3 occurred as a result of the fact that his client was abandoned by his former advocate. As the application could be heard in absence of the applicant, the applicant did not-appear in Court believing his advocate made appearance. However, the advocate did not enter appearance hence dismissal of the application. it has been submitted praying that the application be granted and has cited the case of FelixTumbo Kisuma Vs. Tanzania Tele-Communication Co. Ltd and Another [1997] TLR 57. In that case the applicant lodged notice of appeal on time and engaged an advocate to pursue his appeal. The advocate apparently mixing politics and the legal profession; had failed to pursue the appeal and in fact lied to his client. As he was applying for leave to file appeal out of time, the Court held that the applicant had given sufficient reasons for delaying in lodging the appeal. He prayed this Court be inspired by the decision and allow the application. So that parties may be heard on merit. He pray cost to be waived. The respondent was brief that she wanted they be heard by the judge on merit. 4 I have read the application and the two supporting affidavit. Also, I have heard the applicants counsel and the respondent. I am satisfied that the circumstances of the case at hand shows the applicant has shown a good reason for the application to be restored. I therefore allow the application with no order as to costs. Application No. 16 of 2021 be restored and the same is scheduled to be heard on 23/08/2023. It is ordered accordingly. Dated and signed at Sumbawanga this 25th day of July, 2023. 5