Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM MISC.LAND CASE APPLICATION NO. 1439 OF 2024 (Originating from Land Case No.26062 of2023 of the High Court of Tanzania, Land Division at Dar es Salaam, Hon. Mwaipopo, J) SWAIBU SALIM HOZA...........................................................................APPLICANT VERSUS EDWARD EUGEN MUSHI............................................................. 1STRESPONDENT ANNA HANGAYA @ JOSEPH LUVANDA..................................... 2ndRESPONDENT HELENA MUHACHA (as Legal personal representative of AMELINA MUHACHA) ................................................................. 3rd RESPONDENT KINONDONI MUNICIPAL COUNCIL.......................................... 4th RESPONDENT THE DAR ES SALAAM CITY COUNCIL......................................... 5th RESPONDENT THE COMMISSIONER FOR LANDS............................................. 6th RESPONDENT THE REGISTRAR OF TITLES....................................................... 7th RESPONDENT THE ATTORNEY GENERAL...........................................................8th RESPONDENT RULING Date of last Order: 13/09/2024 Date of Ruling: 30/09/2024 LA LTAl KA, J. The Applicant herein SWAIBU SALIM HOZA has moved this Court under Order VIIIB Rule 20(2) subject to Order XII Rule 2 and Section 95 of the Civil Procedure Code (Cap. 33 R.E. 2019) for the following orders: Page 1 of 18 1. That this Honourable Court be pleased to set aside its dismissal order dated 03/06/2024 against Land Case No. 26062 of2023. 2. That this Honourable Court be pleased to order the Land Case No. 26062 of2023 to proceed from where it reached basing on the orders made on 17th May 2024. 3. Costs be in due course. 4. Any other order (s) this Honourab/e Court deems proper and equitable to grant in the circumstances of this Application. When the Application was called for hearing on the 21/08/2024, representation by Counsel was as follows. Mr. Andrew Kannonyele, learned Advocate, appeared for the Applicant. Mr. Rajab Mrindoko appeared for the 1st Respondent while also holding brief for Ms. Pauline Mndendemi, learned State Attorney for the 4th to 8th Respondents. Ms. Farida Ibrahim, learned Advocate, appeared for the 2nd Respondent. Mr. Kannonyele submitted that there had been a court order to serve the 3rd Respondent by way of substituted service, which was carried out through an advertisement in the Mwananchi newspaper dated 13th July 2024. However, he acknowledged that they had not filed the supplementary affidavit as ordered by the court. He explained that when they were preparing the affidavit, the Applicant was not at his home in Dar es Salaam and was unreachable by phone. Page 2 of 18 Upon visiting the Applicant's home, Mr. Kannonyele averred, he was informed that he had travelled to Lushoto, his original home, and the time granted to file the affidavit had expired. While recognizing the importance of resolving the application, Mr. Kannonyele requested an extension of time, suggesting that three additional days would suffice, as he had recently received news that the Applicant was back in town (meaning the City of Dar-es-Salaam, Tanzania's commercial hub). The learned Advocate also requested that, should the extension be granted, the rival party be allowed to file their counter-affidavit after the supplementary affidavit, and that the proceedings be conducted ex parte against the 3rd Respondent. In response, Mr. Mrindoko, counsel for the Respondents, noted that there had been a previous court order directing the Applicant to file a supplementary affidavit, which had not been complied with. He emphasized that court orders must be obeyed. He recalled that during the hearing on 9th July 2024, the Applicant's counsel had requested a short adjournment, citing the Applicant's absence in Lushoto. Despite their objections, the court granted the Applicant time to file the supplementary Page 3 of 18 affidavit by 12th July 2024, and the Respondents were to file their counter­ affidavit by 26th July 2024, with the hearing scheduled for today. Mr. Mrindoko pointed out that over a month had passed since the order was made, and the Applicant's counsel was now repeating the same request, based on what he described as flimsy reasons that contradicted the previous explanations. He submitted that there was no valid justification for the noncompliance and urged the court to dismiss the prayer and proceed with the hearing based on the existing pleadings. Ms. Ibrahim, also representing the Respondents, supported Mr. Mrindoko's submission. She concurred that the court had previously ordered the Applicant to file the supplementary affidavit and suggested that counsel for the Applicant was using delay tactics. She joined her colleague in requesting that the court proceed with the hearing. In response to the objections, Mr. Kannonyele argued that the time initially granted to the Applicant, from 9th to 12th July 2024, was too short and that he had not anticipated the challenges his client would face. He noted that an affidavit is a form of evidence, and without it, the statements of counsel alone would be insufficient. He reiterated his request for the court Page 4 of 18 to grant an extension of time, stressing that it was in the interest of justice for the Applicant to have the opportunity to explain the reasons for the delay. The court observed that when it initially ordered the Applicant to file the supplementary affidavit between 9th and 12th July 2024, there had been no objection to the timeline. However, a month later, counsel for the Applicant was once again requesting an extension of time. Other than invoking the right to be heard, the court found no compelling reason for the delay. Nonetheless, as the matter was before the court for the first time, the court decided to grant the prayer for an extension, though it cautioned against counsel-centric litigation practices that may detract from focusing on the clients interests. The next part of this Ruling is a summary of submissions by both parties. Mr. Kannonyele submitted in support of the Applicant's Application, which was preferred under Order VIIIB Rule 20(2), subject to Order XLIII Rule 2 and Section 95 of the Civil Procedure Code (Cap. 33 R.E. 2019). He explained that these provisions empowered the court's jurisdiction to hear and determine the Application in the interest of justice, specifically to grant the prayers to set aside the dismissal order dated 3rd June 2024 against Land Case No. 26062 of 2023. Additionally, the Counsel sought an Page 5 of 18 order for the Land Case to proceed from where it left off, based on orders issued on 17th May 2024. He mentioned that the submissions were made pursuant to the order of the Court dated 21st August 2024. He emphasized that the essence of the Application was clearly presented in the Affidavit of Advocate Andrew Job Kannonyele and the Applicant’s Supplementary Affidavit. The Counsel prayed that these documents be adopted in their entirety to form part of the submissions. He further stated that the Application sufficiently complied with the provisions under Order VIIIB Rule 20(2), subject to Order XLIII Rule 2 and Section 95 of the Civil Procedure Code, granting the Court the discretionary power to consider setting aside the dismissal order issued under Order VIIIB Rule 20(1). Mr. Kannonyele referred to the provisions of Order VIIIB Rule 20(2), which allow the Court to set aside an order made in the absence of a concerned party within fourteen days on just terms. Acknowledging the discretion granted by this law, Mr. Kannonyele contended that this discretion must be exercised judiciously, considering the circumstances of non-appearance of a party, especially when represented by another person or advocate. He noted that, according to the Applicant’s Affidavit, the Land Case No. 26062 of 2023 had been dismissed for non­ Page 6 of 18 appearance on 3rd June 2024. The third-party Advocate, representing the 4th to 8th Defendants, had conceded to the Application for reasons of justice after reading the Applicant's Affidavit and acknowledging that sufficient grounds existed to proceed. The Counsel highlighted that paragraphs 3 through 10 of the Applicant's Affidavit provided an account of the Applicant's Advocate's conduct in attending the case and the circumstances surrounding his failure to appear in time. He referenced records in the Court file to support these claims. Citing the case of East African Cables (T) v. Spenneon Service Limited, Misc. Application No. 61 of 2016 (unreported), he noted the legal principle that dismissing an application based on insufficient grounds was improper when the evidence formed part of the court records. Mr. Kannonyele admitted that verifying the truth of the Affidavit facts might be difficult, but since they were made on oath, they should be believed as true. He called on the Court to assess their weight and grant the Application accordingly. Further supporting his argument, he cited cases such as Frederick Selene and Another v. Agnes [1983] TLR 99 and Mwanza Director M/S New Refrigeration Co. Ltd. v. Regional Manager of TANESCO Ltd. [2006] TLR 329, which emphasized that cases Page 7 of 18 should be determined on merit and that circumstances surrounding dismissal should be closely examined. He referred to additional case law, including Sadru Mungai v. Abdul Aziz Lalani and 2 Others, Misc. Commercial Application No. 126 of 2016 (unreported), where it was held that an applicant seeking to set aside a dismissal order must furnish sufficient reasons. In the case of Mwidini Hassani Shila and 2 Others v. Asinawi Makutika and 4 Others, Land Appeal No. 04 of 2019 (unreported), the Court reinforced that powers to set aside dismissal orders are discretionary but depend on sufficient reasons provided by the applicant. Mr. Kannonyele concluded by inviting the Court to consider the reasons demonstrated in the two Affidavits as sufficient for granting the Application in the interest of justice. He argued that the 1st and 2nd Respondents’ counter-affidavit did not plausibly rebut the Applicant's facts and merely demanded strict proof. Therefore, he urged the Court to act on the basis of the Affidavits and grant the Application. Finally, he emphasized that the Applicant would suffer irreparable loss and a violation of the principles of natural justice if the Application was not Page 8 of 18 granted, as the Land Case concerned the Applicant's property rights. Thus, the Counsel prayed for the restoration of the parent Land Case and its continuation. Ms. Ibrahim, Counsel for the 1st and 2nd Respondents, opposed the Applicant's chamber application for setting aside the dismissal order, stating that the Applicant had not provided sufficient grounds to justify the relief sought. She adopted the Counter Affidavit sworn by Anna Hangaya @ Anna Joseph Luvanda as part of her submission. Ms. Ibrahim argued that while the court has discretionary power to set aside a dismissal order, the Applicant must provide sufficient reasons to warrant the courts intervention. It was the Applicant's responsibility to demonstrate good cause for failing to appear on the scheduled hearing date. She proceeded to address the reasons given by the Applicant for non- appearance. First, she addressed the claim that the Applicant's Counsel, Andrew Kanyonyele, had been hospitalized from 1st June 2024 to 6th June 2024. Ms. Ibrahim pointed out that no admission or discharge form from the dispensary had been attached to the affidavit to substantiate this claim. The Page 9 of 18 sick sheet provided did not establish that the Counsel was admitted to the dispensary for six days, as alleged, and it appeared that the sick sheet and prescription were issued on 6th June 2024, rather than earlier. She further noted that since the Advocate was an outpatient, he had the opportunity to communicate with another advocate in his law firm to attend the hearing on his behalf or to ask the opposing counsel to hold a brief as a matter of courtesy. However, no evidence was provided to show that the Advocate had made efforts to mitigate the situation. Ms. Ibrahim emphasized that the Counsel was merely seeking sympathy from the court without justifying his sickness with adequate evidence. She referred to the case of Rui Wang v. Eminence Consulting (T) Ltd., Revision No. 306 of 2022, to support her argument. Second, Ms. Ibrahim addressed the Applicant's claim that he was out of the court's jurisdiction, attending to his sick son in Lushoto. She pointed out that the Applicant had not provided any evidence, such as a travel ticket, to prove that he had travelled to Lushoto and returned to Dar es Salaam before or after the 3rd June 2024. In the absence of such evidence, Ms. Ibrahim argued that there was no material proof that the Applicant had indeed travelled to Lushoto as claimed. Page 10 of 18 Ms. Ibrahim cited Section 110 of the Evidence Act (Cap. 6 R.E. 2019), which states that the burden of proof lies with the party making the allegation. She referenced the Court of Appeal's decision in Wambura NJ. Waryuba v. The Principal Secretary, Ministry of Finance and Another, Civil Application No. 320/01 of 2020 (unreported), to reinforce this point. She further argued that the non-appearance of both the Applicant and his Advocate on 3rd June 2024 demonstrated negligence and a lack of due diligence on their part. The Advocate, she contended, had a duty to inform his client but failed to do so, in violation of Regulation 57 of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. Similarly, the Applicant had a duty to follow up on his case, despite having hired an Advocate to represent him. Ms. Ibrahim stressed that negligence and lack of diligence do not constitute good cause, and court orders must be respected, citing Misc. Land Case Application No. 90 of 2020 between Buruhani Omari v. Victoria Revelian in support of this argument. Finally, Ms. Ibrahim submitted that the application lacked merit and prayed that it be dismissed. Page 11 of 18 Mr. Kannonyele, in his rejoinder submission, began by stating that, after reviewing the Respondents' submissions, he found that they did not contain any substantial arguments to counter the Applicant's submissions in chief. He considered the Respondents' arguments to be baseless and without merit. Mr. Kannonyele emphasized that there was ample justification for setting aside the dismissal order and allowing the main suit to proceed. He argued that dismissing the application and forcing the matter to be re­ instituted would burden the parties with unnecessary costs, which could easily be avoided. Addressing the Respondents' argument regarding the lack of evidence to support his claim of hospitalization, Mr. Kannonyele referred to Order VIIIB Rule 20(2) of the Civil Procedure Code, Cap. 33 R.E. 2019. He pointed out that this provision grants the court discretionary powers to set aside a dismissal order on terms the court considers just. He argued that the Applicant had submitted the application within the prescribed time and had demonstrated circumstances beyond his control that led to his non- appearance on the date of the dismissal. Page 12 of 18 In support of the application, Mr. Kannonyele referred to his affidavit, which included a medical sick sheet showing that he had been hospitalized and was therefore unable to attend the hearing on the dismissal date, which had been set for the 1st Pre-Trial Conference. He further noted that the Respondents, who opposed the application, were also absent on the same date, so they were not affected by his or the Applicant's absence. The learned Advocate contended further that the Respondents' objections were baseless, especially as they had questioned the credibility of the medical document without providing any substantive reasons. He asserted that the medical document was issued by a registered clinic and should be given due weight, and the lack of admission or discharge forms did not undermine the fact that he had been hospitalized and under observation. Mr. Kannonyele then addressed the Respondents' challenge regarding the Applicants claim of attending to a family emergency. He cited Section 110 of the Evidence Act, Cap. 6 R.E. 2022, which places the burden of proof on the party making an assertion. He explained that while the Applicant could not provide travel tickets to prove his trip, as he had driven to his home in Page 13 of 18 Lushoto, the court should consider the genuine nature of his affidavit, particularly given the unforeseen circumstances surrounding his family emergency. He also referenced Mwananchi Engineering & Construction Co. Ltd v. The Director of Public Prosecutions [2008] TLR 1, arguing that it is not always practical for a party to provide documentary evidence for every assertion. Responding to the Respondents’ claim that the Applicant's non- appearance demonstrated negligence and lack of due diligence, Mr. Kannonyele argued that diligence should be assessed based on the circumstances of each case. He referred to Suleiman v. A.G. [1992] TLR 137, where it was held that prompt action after becoming aware of a dismissal order could establish good cause for setting it aside. He noted that the Applicant had promptly filed the application after learning of the dismissal, demonstrating his seriousness in addressing the issue rather than abandoning the case. Finally, Mr. Kannonyele drew attention to Nyang'oro v. Mkuranga District Council [2008] TLR 132, which emphasized that setting aside orders should be guided by principles of fairness and justice, rather than strict adherence to procedural technicalities. He also cited Benson v. Page 14 of 18 Tanzania Cement Co. Ltd [2003] TLR 118, where the court held that dismissals should only occur in cases of wilful neglect or abuse of court process. He reiterated that courts should strive to ensure that cases are decided on their merits, rather than being dismissed on technical grounds. In conclusion, Mr. Kannonyele submitted that there were sufficient grounds to justify setting aside the dismissal order. He argued that both his hospitalization and the Applicant's family issues provided genuine reasons for their non-appearance. I have dispassionately considered the rival submissions in the light of the supporting and counter affidavit. The central issue for determination is whether sufficient reasons have been provided to justify the setting aside of the dismissal order. In deciding this matter, it is critical to emphasize two key principles: client-centric litigation and the need for strict compliance with court orders. Mr. Kannonyele referenced the provisions of Order VIIIB Rule 20(2), which grant the court discretion to set aside dismissal orders if sufficient reasons are provided. He further cited cases such as East African Cables (T) Ltd. v. Spenneon Service Ltd., Misc. Application No. 61 of 2016 Page 15 of 18 (unreported), and Frederick Selene and Another v. Agnes [1983] TLR 99, arguing that the Applicant’s failure to comply with the timeline should not result in the denial of justice. Respondents' Objections On the other hand, the Respondents, represented by Ms. Farida Ibrahim, strongly opposed the application. They highlighted the fact that this was not the first time the Applicant had failed to comply with court orders. The Applicant had been granted an adjournment on 9th July 2024, and the court had specifically ordered the supplementary affidavit to be filed by 12th July 2024. Despite the time granted, the Applicant failed to comply. The Respondents argued that this repeated non-compliance demonstrated a lack of respect for the court's authority and a pattern of delay tactics. They referenced Misc. Land Case Application No. 90 of 2020 (Buruhani Omari v. Victoria Revelian (Supra) to emphasize that negligence and lack of diligence do not constitute sufficient reasons for setting aside dismissal orders. Moreover, the Respondents underscored that the Applicant's counsel had not provided adequate evidence to support the claims of his client's unavailability or the reasons for the delay. Page 16 of 18 While courts have discretionary powers to set aside dismissal orders, such powers must be exercised judiciously, ensuring that the interests of justice are served. In this case, it is evident that the Applicants counsel has failed to prioritize his client's interests. Furthermore, while the right to be heard is a fundamental principle of justice, it must not be used as a shield to excuse non-compliance with court orders. Litigation should focus on serving the client's best interests, and delays like those demonstrated here only serve to prejudice the opposing parties and undermine the court's ability to efficiently manage its caseload. In this case, neither the Applicant nor his counsel has demonstrated the requisite diligence expected of them. The repeated failure to adhere to court orders indicates a lack of seriousness in pursuing the case, and this Court cannot condone such conduct. Litigation must be client-centric, focusing on resolving disputes efficiently and in compliance with court orders. The Applicant's failure to adhere to the timeline set by this Court cannot be overlooked, particularly considering Ms. Ibrahim's strong arguments. Accordingly, the application is dismissed. I choose to make no orders as to cost because the Applicant is only partly to blame and the process to Page 17 of 18 get the learned Advocate to clear the bill may take another half a year and precious resources of this court. Nevertheless, in other jurisdictions, Courts have started innovative ways of apportioning cost between a client and his Counsel (paid by an insurance scheme for practicing advocates) in case of dismissal for want of prosecution caused by any slight negligence on the side of the Council. It is so ordered. Court Ruling delivered this 30th day of September 2024 in the presence of Mr. Rajab Mrindoko learned Counsel for the 1st Respondent also holding brief for Ms. Farida Ibrahim, learned Counsel for the 2nd Respondent and in the absence of the Applicant and his Advocate. E.I. LALTAIKA JUDGE 30/09/2024 Page 18 of 18