MISCELLANEOUS LAND APPLICATON NO 49 OF 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA MISCELLANEOUS LAND APPLICATION NO. 49 OF 2023 STEWART ERNEST ZINDUTSE APPLICANT VERSUS THE REGISTERED TRUSTEES OF BARAZA KUU LA WAISLAM TANZANIA (BAKWATA) 1 ST RESPONDENT KASULU TOWN COUNCIL 2ND RESPONDENT ATTORNEY GENERAL 3Ro RESPONDENT (Arising from Land Case No. 25/2021, Misc. Application N. 25/2022 and 11/2023 of the High Court of Tanzania at Kigoma) RULING Date: 11/07 & 14/08/2024 NKWABI, J.: On 25/07/2022 this Court dismissed Land Case No. 25 of 2021 because mediation session could not be conducted due to the absence of the plaintiff before the mediator judge. According to the ruling of this Court, the applicant failed to appear for mediation on two consecutive dates which are 21/07/2022 and 25/07/2022 for undisclosed reasons. He is before this Court with the aim of being availed with below mentioned orders: 1 1. That this honourable Court be pleased to restore Land Case No. 25 of 2021 dismissed on 25/07/2022. 2. That, costs of the application be borne by the respondents. 3. That, this honourable Court be pleased to grant any other reliefs that may deem fit to grant. The chamber summons is supported by the affidavit of the applicant. All the respondents duly filed counter-affidavits. When the application was called on for hearing orally, the applicant was represented by Mr. Eliutha Kivyiro, learned counsel. The pt respondent was represented by Mr. Sadiki Aliki, learned counsel. For the 2nd and 3rd respondents, Mr. Selestine Ngailo, learned State Attorney, appeared. I am indebted for their rigorous submissions. Mr. Kivyiro was the first to break the silence in submission in chief. He mentioned that paragraph 3 of the affidavit indicates that the suit was for mediation. He then elaborated that on the fateful day, the applicant failed to appear for being sick. He went on to state that, the counsel of the plaintiff asked the counsel for the respondent to hold his brief as per paragraph 7 of the affidavit. 2 He also contended that thereafter, the applicant filed an application for restoration of the land case in Misc. Land Application No. 25 of 2022. The same was withdrawn with leave to refile. Extension of time was granted by this Court to file this application. Mr. Kivyiro stressed that the applicant was not negligent in failure to appear. He beseeched, for justice to be served, this application be granted. No party will be prejudiced by the respondents, rather if the application will be refused then prejudice will be occasioned to the applicant, pressed Mr. Kivyiro. Mr. Aliki was the first to respond saying they object the application. He prayed that the application be dismissed with costs. He elaborated his stand view that the submission of the counsel for the applicant based on the justification of failure to appear on the mediation date, is sickness. He contended that that is not sufficient ground for none appearance of the applicant. Mr. Aliki added that the right to be heard has to abide by the law including the orders that are issued by the court of law. He further stated that the center of the contention ought to be the reasons for failure to appear on the date the suit was dismissed for non-appearance. Mr. Aliki backed his argument by the case of Nasibu Sungura v. Peter Machumu [1998] T.L.R. 501 where the Court said that the relevant issue 3 was for the applicant to explain why the applicant failed to appear on the date the suit was dismissed adding that it is the affidavit which is evidence which has to be considered by the Court. He expounded that the affidavit ought to be credible and the claim of being sick ought to have been proved by medical evidence, but there is none. It is also the view of the counsel for the 1st respondent that the 7th paragraph does not mention the counsel who communicated with advocate Edna Aloyce to hold her brief. He stressed the same has no relevance because, they are not supported by the makers' affidavit, so they are mere hearsay. Regarding the application which was withdrawn by advocate Msasa, Mr. Aliki stated that they have not been told why they were withdrawn, even the time given by the Court lapsed. Though they were granted, the pt respondent was not included in that application. Thus, the applicant is negligent. He further explained that with the presence of suits, the respondents have to engage advocates who he has to pay instruction fee. He prayed the application be dismissed with costs. Mr. Ngailo did not sit and watch. He was kin to be heard. He clearly stated that he objects the application and prays it be dismissed with costs. He 4 explained his stand point that there is no sufficient ground that has been assigned. He strongly disputed the ground assigned on paragraph 6. He reiterated that there is no proof of the sickness that assailed the applicant and failed to appear. He referred me to the case of Ezekiel Mhoja Administrator of the Estate of the late Mhoja Doto v. Salu Samwel Malehiwa, Misc. Land Application No. 4 of 2021 HC at Tabora. He added that he who alleges must prove and cited the case of Martin Manya v. Stephen Mwita, Misc. Land Application No. 224 of 2021 HC at DSM. Mr. Ngailo went on to submit that under paragraph 7, there is a claim that even the counsel for the applicant was not disclosed in the affidavit. The whole paragraph is hearsay, the counsel ought to have sworn an affidavit. Both advocates ought to have sworn affidavit. Mr. Ngailo parroted the case of Sabena Technics Dar Ltd v. Michael Luwunzu, Civil Application No. 451/18 of 2020 CAT, at DSM. He insisted that the Court was justified to dismiss the suit. He prayed the application be dismissed with costs. In rejoinder submission, Mr. Kivyiro maintained that they explained under paragraph six the reason for failure to appear. He pointed out that the respondents have not disproved that the applicant was not sick and 5 explained that they did not say that the applicant went to hospital where there would be need for proof of medical chits. Mr. Kivyiro acceded that right to be heard should abide by the orders of the Court. He also stressed that they indicated that the applicant used to appear, save on the fateful date when the applicant fell sick. He also underlined that the applicant, the applicant would suffer more loss if the application is not granted than the respondents if the application is granted. Mr. Kivyiro too argued that the case of Muhoja Doto, cited by Mr. Ngailo concerning medical report to be accompanied is distinguishable because the applicant therein said he was admitted in hospital. The same applies to the case of Martin. He explained that it is not every sickness would make a person to attend hospital. Regarding the 7th paragraph about the affidavits of other persons named in the affidavit in support of the application, Mr. Kivyiro accepted that the major reason is why the applicant did not appear, which is captured in paragraph 6. He added that Paragraph 7 is just to show that the applicant did not sit back but he took action. He pressed that the application is merited, if it is rejected, the applicant will suffer more loss than if it is granted where both parties will be heard. 6 In this application, the applicant and his counsel clearly admit that the applicant did not appear on 25/07/2022 when the suit was dismissed. They also do not dispute that the applicant did not appear on 21/07/2022 where on both days the suit was fixed for mediation. The applicant and his counsel too do not dispute that under the law, the consequence of non-appearance by the plaintiff on a mediation date is dismissal of the suit. All what they say is that the applicant has assigned good cause for non-appearance which entitles him to have the dismissed suit being restored and proceed for hearing on merit. No doubt that the applicant and his counsel accept the position of the law that states that the parties to a suit or application have to act diligently as stated in Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002. They also accept the position of the law that orders of the Court as well as laws have to be respected and failure observe one has to get adverse consequences as stated in Olam Tanzania Limited v. Hawala Kwilabya, Civil Appeal No. 17 of 1999 HC (unreported) and in The Concern for Development Initiative in Africa (For DIS) & Buberwa Kaiza v. Ambero Consulting (Gesellschafts mnH) & Another, Civil Application No. 18/01 of 2021, CAT, where it was stated: 7 ''I would wish to start by stressing two principles/ that court orders must be obeyed and that there has to be substantial material placed before the court to allow the grant of the application before ,t " The question to be answered in this application is whether the applicant has provided sufficient ground for this Court to restore the dismissed land case. I should make it clear from the outset that the answer to this question must come from the affidavit itself and annexures if any and nowhere else. Unfortunately for the applicant, he miserably failed to prove by bringing any material to prove that indeed he was suffering from hypertension by bringing medical chits to prove that truly he was sick. Hypertension is no one of health frailty which cannot get medical attention in hospitals. Also, there is no affidavit from the advocate who instructed another advocate hold his brief and he one who held such brief. Despite it was stated in a different circumstance, the position was clearly stated in Ramadhani J. Kihwani v. Vocal Networks Ltd, Civil Application No. 28 of 2008, CAT (unreported) where it was stated that: "The requirement to file an affidavit of a person whose evidence is to the matter in dispute cannot be over- 8 emphasized here. It is of paramount importance. Failure to file such an affidavit cannot help a party concerned. as in the instant application. On account of the above discussion, I am of the firm view that this application is unmerited. I dismiss the application with costs. It is so ordered. DATED at KIGOMA this 14th day of August, 2024. 9