Thabitha Masanja v Sophia Msuke Madilisha Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA MISC. LAND APPLICATION NO. 25807 OF 2023 (Arising from Land Appeal No.44 of 2023 of the High Court of Tanzania at Shinyanga) THABITA MASANJA ………………………….…………………………… APPLICANT VERSUS SOPHIA MSUKE MADILISHA…………………………….....…..…… RESPONDENT RULING Date of Last Order 15.07.2024 Date of Ruling: 23.08.2024 MWAKAHESYA, J.: This is an application for setting aside a dismissal order of this court made on 06.11.2023 in Land Appeal No. 44 of 2023. The applicant is prosecuting the same through one Majora Robert Kalemani who has been granted a specific power of attorney due to the applicant’s incapacity. The application has been brought under Order XXIX (Sic) rule 19 of the Civil Procedure Code (the CPC) and is supported by the affidavit of the said Majora Robert Kalemani. The respondent, resisting the application filed a counter affidavit sworn by herself. 1 The brief background of events leading to the present application is that, when Land Appeal No. 44 of 2023 came for hearing before this court on 06.11.2023 neither the applicant nor Mr. Kalemani were present, prompting the trial judge to dismiss the appeal for want of prosecution. In his affidavit in support of the application, from paragraph 4 to 7, Mr. Kalemani has cited the reasons for the non-appearance on 06.11.2023 as: “4. That the non-appearance of the applicant through his above mentioned attorney on the 06 th November, 2023 which led to the dismissal of the Land Appeal No. 44 of 2023 is not owed to the applicant’s fault, negligence or deliberate acts or omission, but the non appearance was caused by reasons which are and were not within the applicant’s control, as the applicant’s attorney, the Deponent, on the 05 th day of November, he fell ill and had to attend Magembe Maabara for medical check up, and thereafter to Community Wazazi Dispensary for medical treatment; 5. That at Magembe Maabara the deponent was found suffering from acute Malaria, whereby he attended the Community Wazazi Dispensary for medical treatment as mentioned above, the Dispensary prescribed the Deponent’s medical treatment in the form of cylinder injection for six days consecutively, that is from 05th November up to 10th November 2023, at 12:00 noon hours; 6. That after completion of his medical treatment on the 10 th day of November 2023, the Deponent made follow up of the status of the Land Appeal No. 44 of 2023 with Registry Officers of this honorable 2 Court, whereby he was informed that the same has been dismissed on the 06 th day of November 2023 for non appearance of the appellant; 7. That pursuant to what is stated in paragraphs 4 to 5 above, the appearance of the applicant through his attorney before this honorable Court on the 06 th day of November 2023 in which the mentioned Land Appeal above was dismissed was impracticable, because on the very same date the applicant’s Attorney was attending the Community Dispensary in Kahama for medical treatment.” In her counter affidavit, resisting the application, the respondent is of the view that Mr. Kalemani was negligent and the medical certificates appended to his affidavit are forgeries. At the hearing of the application Mr. Kalemani appeared for the applicant while the respondent appeared in person and was assisted by a translator of her choice, one Sylvester Mabula, who translated from Kiswahili to Kisukuma and vice versa, having first been sworn by the court to translate truthfully. Arguing for the application, Mr. Kalemani briefly submitted that, on 05.11.2023 he fell ill with malaria and so he went to Magembe Laboratory and then Wazazi Community Dispensary for treatment. He was prescribed injections for six days (from 06.11.2023 to 10.11.2023). The said injections being administered each day at noon time. It was only after he had finished the course of his treatment that he came to court, on 13.11.2023, to realize that the case he was overseeing was 3 dismissed for non appearance on 06.11.2023. He urged the court to allow the application and restore Land Appeal No. 44 of 2023. In reply, the respondent submitted that, Mr. Majora was not sick on the material date but rather chose to ignore the court date. She submitted further that Mr. Majora has a brother and other close relatives who could have entered appearance and inform the court that he was sick. In rejoinder, Mr. Majora was adamant that he was sick and that the people who could have come to court and inform it about his sickness were all involved in taking care of him in different ways. Having gone through the application, the affidavits of the parties and the oral submissions in support and against the application, I am now in the position to determine this application. As stated earlier, this application has been brought under Order XXIX rule 19 of the CPC. However, this is a wrong and non-existent provision, the proper provision being Order XXXIX rule 19 of the CPC which reads: “When an appeal is dismissed under sub-rule (2) of rule 11 or rule 17 or rule 18, the appellant may apply to the Court for the re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing 4 when the appeal was called for hearing of from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.” [Emphasis added]. Rule 17 of Order XXXIX reads: “17. -(1) Where on the day fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (2) N/A. The citing of Order XXIX rule 19 of the CPC seems to be inadvertent as there is no rule 19 in Order XXIX, moreover Order XXIX itself deals with suits by or against firms and persons carrying on business in names other than their own. On the strength of the Court of Appeal decision of Bin Kuleb Transport Company Limited v. Registrar of Titles and 3 others, Civil Application No. 522 of 2020 despite the error and bearing in mind that this court has the requisite jurisdiction to entertain the application (under Order XXXIX rule 19 of the CPC) I shall proceed to deal with the application. The threshold that has been set by the CPC before an appeal that was dismissed for non-appearance of the appellant is set aside is that of 5 establishing that there was a sufficient cause that prevented the appellant from appearing on the hearing date. As to what amounts to “sufficient cause” has not been defined in Order XXXIX of the CPC. Thus, I find it prudent to borrow the wisdom of the Courts in explaining the term “sufficient cause” when dealing with applications such as ones for extension of time. In Tanga Cement Co. Ltd. v. Jumanne D. Masangwa and another, Civil Application No. 6 of 2001, CAT – Tanga (unreported), it was held that what amounts to sufficient cause has not been defined, however a number of factors have to be considered. In the instant application, the applicant has been able to show that Mr. Kalemani fell ill on the eve of the hearing date and that he was prescribed injections on the material date and a further five days, thus he was not able to attend the hearing and upon recovering he learnt of the dismissal order. In his affidavit in support of the application Mr. Kalemani annexed a laboratory request form dated 05.11.2023 from Magembe Maabara as well as a chit from Community Wazazi Dispensary showing that he was suffering from malaria and was prescribed medication from 05 – 10.11.2023. In as much as the respondent tried to counter the submission of Mr. Kalemani and was adamant that he was 6 not sick on the material date and that the medical receipts appended by the applicant were forgeries she did not prove the same. Therefore, this Court is of the view that on the balance of things the applicant has been able to demonstrate that the non-appearance of 06.11.2023 was beyond the control of Mr. Kalemani due to illness. I therefore, allow the application, and proceed to restore Land Appeal No. 44 of 2023. Due to the nature of the application, and the respondent bearing no fault whatsoever, I make no order as to costs. N.L. MWAKAHESYA JUDGE 23/08/2024 7