MSC

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 50 OF 2023 (Arising from Civil Case No. 39 of 2022) SITCHULA N. F. KAUZENI ………….………………………………………. APPLICANT VERSUS NATIONAL INSURANCE CORPORATION…….………………...... 1ST RESPONDENT TANZANIA ZAMBIA RAILWAY AUTHORITY……………………...2ND RESPONDENT ATTORNEY GENERAL ………………………………………………… 3RD RESPONDENT RULING 26th & 31th July, 2024 \ BWEGOGE, J. The above-named applicant instituted the application herein praying this court to set aside the dismissal order entered by this court in Civil Case No.39 of 2022 and restore the suit for the 1st pretrial conference. The application is brought under the provision of section 95 of the Civil Procedure Code [Cap. 33 R. E. 2019] and supported by the affidavit of Mr. Gabriel Simon Mnyele, the applicant’s counsel. 1 The facts of this case gleaned from the supporting affidavit are as follows: the applicant herein commenced civil proceedings (Civil Case No. 39 of 2022) against the respondent in this court. The case was scheduled for pretrial conference on 13th December, 2020 at 9:30 am before Hon. Justice Nkwabi in the presence of the deponent herein who was the plaintiff’s counsel but the defendant. On 13th December, 2020 the case was brought before the trial judge as scheduled, but no party appeared in court. Consequently, the case was dismissed for want of prosecution. Hence, this application. The applicant herein was represented by Mr. Gabriel S. Mnyele, learned advocate, and the respondents were represented by Ms. Adelaide Ernest, the learned state attorney. The application herein was argued by written submissions. In supporting the application herein, Mr. Mnyele argued that the plaintiff in the main suit has been religiously attending court sessions on the scheduled dates. That on 16th October, 2022, the case was brought before Hon. Justice Nkwabi for hearing of the preliminary objections advanced by the defendants. However, the defendants absconded to appear in court. Thereafter, the case was adjourned and scheduled for the First Pre-Trial Conference on 13th December, 2022 at 9:30 am. The counsel enlightened 2 this court that on the material date, he arrived in Court at around 09:00 am. On the respective date, apart from the suit (Civil Case No. 39 of 2022) which is the subject of this application, the counsel had another matter (Civil Appeal No. 55 of 2021 between Salma Mohamed Ibrahim vs. Mohamed Ibrahim Adam) before the same trial judge. And it happened that the latter case was called and the counsel duly made an appearance before the trial judge. Then, he waited for the case in question (Civil Case No. 39 of 2022) which was scheduled For the First Pre-Trial Conference to be brought before the trial judge. After waiting for a considerable period, the counsel inquired about his case and he was informed that the respective case had been brought before the trial judge at 9:00 am and dismissed for want of prosecution. The counsel argued that this court is vested with power, pursuant to section 95 of the Civil Procedure Code, to restore the case (Civil Case No 39 of 2022). The counsel asserted that if the application is not granted, the applicant’s right to be heard on merit will be infringed. He supported his point by citing the case of Attorney General vs. Maalimu Kadau & 16 Others, Civil Application No. 51 of 1996 (1997) TZCA 84. 3 Further, the counsel argued that it is law that for an applicant to be granted the prayer for setting aside the dismissal order, he must demonstrate that there is a sufficient cause to warrant the restoration of the suit [Sadru Mangalji vs. Abdul Aziz Lalani and 2 Others Misc. Commercial Application No.126 of 2016 [2017] TZHC ComD34]. The counsel explained that what happened on the material date was an inconvenience, as the counsel was in court premises since 9:00 am whereas he attended another case before the same judge and learned later on that the case was dismissed for want of prosecution. The counsel urged this court to take into consideration the applicant’s conduct before the dismissal order was entered whereas the counsel and his assistants had been all along religiously attending in court. The case of Sadru Mangalji vs Abdnf Aziz Lalani (supra) was cited to buttress the point. On the above premises, the counsel prayed this application to be granted. In reply, Ms. Ernest submitted that the act of the applicant’s counsel attending another case without notifying the court, cannot stand as sufficient cause for the court to restore the suit dismissed for want of prosecution. In making her point she cited the case of Bahati Matimba vs. Jagro 4 Enterprises Limited, Misc. Civil Application No.42 of 2022(2023) TZHC 17355. Further, the counsel contended that the applicant’s counsel ought to notify the court that he was attending another case and, or circumstances which would cause him not to attend the case as scheduled. The counsel opined that failure on the part of the applicant to notify the court cannot be regarded as an inconvenience. In the same vein, the counsel contended that the applicant’s counsel as an agent of the client had acted negligently, it follows that based on principal- agent relation, the applicant cannot disassociate from the negligence of his counsel. The cases: Mwakasege vs. Niko Insurance (T) Ltd, Civil Appeal No. 05 of 2017, HC (unreported) and William Shija vs. Fortuntus Masha [1997] TLR 213 were cited to reinforce the point. On the above premises, the counsel prayed this court to dismiss the application herein with costs for being devoid of merit. In rejoinder, Mr. Mnyele reiterated his submission in chief which I find needless to replicate. The point of determination is whether the application herein is merited. 5 It is the law of this land that when the suit is dismissed for non-appearance of the parties on the date scheduled for hearing, the applicant who seeks restoration of the case is obliged to furnish good cause for non-appearance in terms of Order IX, rule 2 and 3 of the Civil Procedure Code. The respondent’s counsel in contesting this application, contended that the applicant’s counsel ought to notify the court that he was attending another case and, or circumstances which would cause him not to attend the case as scheduled. Hence, the counsel opined that the failure on the part of the applicant’s counsel to notify the court in time pertaining to other cases he was obliged to appear; cannot be regarded as an inconvenience, and or sufficient cause for non-appearance. Primarily, I find it pertinent to put it clear that in substance, the applicant’s counsel has asserted that he was within the premises of this court waiting for his case to be announced but later on informed, on inquiry, that the case had been called and dismissed for his non-appearance. And, the applicant’s counsel had been clear in that he had two cases before the same presiding judge, namely, Civil Appeal No. 55 of 2021 between Salma Mohamed Ibrahim vs. Mohamed Ibrahim Adam and Civil Case No. 39 of 2022 6 between Sitchula Kauzeni vs. National Insurance Corporation and Others (supra). The latter case is the subject of this application. It is his submission that the earlier case was announced in his presence but the latter was not. Hence, he waited for a considerable period before he made the inquiry and was disillusioned to find his case was dismissed for non- appearance. Upon scrutiny, I found that it is on record that the relevant case was scheduled for the First Pretrial Conference at 09:30 am. Therefore, two propositions arise herein: One, the counsel arrived late in court premises to find his case already announced. Two, if the applicant’s counsel may be believed in that he appeared in court at around 09:00 am, then it follows that he might have not heard when the relevant case was announced. Unfortunately, the record of this court doesn’t disclose when exactly the case was brought before the trial judge. Be that as it may, I subscribe to the applicant’s counsel in that previously, they religiously attended the court sessions as scheduled. The plaint in the case sought to be restored entails that the applicant herein sought to recover his monthly pensions from his employer. The case was dismissed before he 7 was heard. Disallowing the application herein, in my opinion, would amount to undeserving punishment to the applicant for the conduct of his counsel [Abdallah Juma Kambale vs. Noradi Tiliko Mongelwa (Civil Appeal No. 231 of 2018) [2023] TZCA 17730. In fine, taking into consideration the circumstances of this case, I am constrained to allow the application herein in the interest of justice. The dismissal order entered by this court is hereby vacated. The proceedings in Civil Case No. 39 of 2022 are hereby restored. Order accordingly. DATED at DAR ES SALAAM this 31st July, 2024. O. F. BWEGOGE JUDGE 8