soap and allied industries limited vs the minister of lands housing and human development 2 others 2022 tzhclandd 12712 1 december 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 464 OF 2022 BETWEEN SOAP AND ALLIED INDUSTRIES LIMITED......................................... APPLICANT VERSUS THE MINISTER OF LANDS, HOUSING AND HUMAN DEVELOPMENT.............................................................................. 1STRESPONDENT DISTRICT EXECUTIVE DIRECTOR OF MKURANGA DISTRICT........................................................................................ 2ndRESPONDENT THE ATTORNEY GENERAL OF TANZANIA......................................................... 3rdRESPONDENT RULING Date of last Order: 24/11/2022 Date of Ruling: 01/12/2022 A, MSAFIRI, J. The applicant in this matter has filed this application under Order IX Rules 5 & 6 (a), Sections 68(e) and 95 of the Civil Procedure Code Cap 33. R.E 2019. He is praying for the orders that; 1. This Honourable Court be pleased to set aside dismissal order entered on 28th July 2022 and appoint a day to proceed with the suit on merit. 2. That the cost of the case abide the event. 1 3. Any other relief(s) as the Court may deem fit to grant. The application was supported by the affidavit of one Elinihaki Kabula, who was introduced as the applicant's legal counsel. The respondents did not file their counter affidavits. On 24/11/2022, the application was set for hearing. The applicant was represented by Mr. Musa Maghimbi, learned advocate while the respondents were represented by Thomas Mahushi, learned State Attorney. Mr. Mahushi informed the Court that the respondents are not contesting the application and that is the reason why they have not filed the counter affidavits. Mr. Maghimbi, submitted to the Court that the main reason for filing this application was that the non-appearance of the applicant when the matter was set for hearing was caused by the sickness of the advocate who was handling the matter one Mr. Elinihaki Kabula. He said that the evidence of the claim of sickness is attached to the affidavit as annexure SA 11. That, due to that reason, the said advocate failed to appear in Court to attend the matter. AfHr 2 He prayed for the Court to grant the prayers for restoration of the main suit and each party to bear their own costs. Having gone through the affidavit supporting the application and the attached annexures, the issue here is whether there are sufficient grounds advanced by the applicant for his absence on 28/7/2022 when the Land Case No. 255 of 2021 was scheduled before the Court. In the affidavit of Elinihaki Kabula, who was the applicants advocate, he stated that he was engaged by the applicant to represent her in Land Case No. 255 of 2021. That on 28/7/2022, the matter was scheduled before the Court for mention. On that day, Mr. Kabula stated in the affidavit that he was very sick and could not attend the case. That he was admitted to the hospital on 26/7/22 and discharged on 28/7/2022 at midday and was given instructions for bed rest. Mr. Kabula stated that on same date 28/7/2022 he got information that the case has been dismissed and immediately through his legal officer on 29/7/2022, wrote a letter to the Court requesting to be supplied with the order of dismissal. That the requested copy of order was obtained on 05/8/2022 and he prepared this application to restore the said case. fMln - 3 He stated that the non-appearance was never due to negligence nor the lost of interest on the case but due to unforeseen circumstances as pleaded. The applicant attached the Medical sheet which shows that Mr. Kabura attended the hospital on 26/7/2022 and was given two (2) days excuse from duty. I find the reason advanced by the advocate for the applicant, Mr. Kabura in his affidavit to be sufficient. Also, for the interest of justice, leniency call for Court's consideration of the advanced reason because of the plaintiff/applicant whose right to be heard will be prejudiced if the application will not be granted. Having stated that, I allow this application and set aside the dismissal order of land Case No. 225 of 2021 dated 28/7/2022. The same shall proceed on merit. 4