FORMER REGISTERED TRUSTEES VERSUS REV MWIRU RULING

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELLANEOUS CIVIL APPLICATION NO. 19701 OF 2024 BETWEEN THE FORMER REGISTERED BOARD OF TRUSTEES OF THE WORLD MISSIONARY FELLOWSHIP OF THE CHURCH OF THE GOD OF TANZANIA……………….APPLICANT VERSUS REV. JACOB MWIRU…………………………….1ST RESPONDENT REV JOHN MPFUMBUSA IBRAHIM…………2ND RESPONDENT THE NEW REGISTERED BOARD OF TRUSTEES OF THE WORLD MISSIONARY FELLOSHIP OF THE CHURCH OF THE GOD OF TANZANIA…..…3RD RESPONDENT RULING Date of last order: 05/09/2024 Date of the ruling: 12/09/2024 LONGOPA, J.: This is an application for setting aside and restoration of Civil Case No 15 of 2023 which was dismissed for want of prosecution vide an order dated 1st August 2024. Neither the applicant nor the counsel for applicant 1|Page appeared on the date set for hearing of the Plaintiff’s case. The applicant was the Plaintiff in the Civil Case No 15 of 2023. On 5th September 2024, the parties appear for viva voce hearing. The applicant enjoyed the legal services of Ms. Maria Ntui, advocate while the respondents enjoyed the services of Mr. Godwill Benda, learned advocate. In support of the application, The Counsel for applicant, Ms. Maria Ntui adopted the affidavit in support of the application to form part of the submission before this court. Ms. Ntui argued that the application is made under Order IX Rule 6 of the Civil Procedure Code, Cap 33 R.E. 2019. It was here submission that given the importance of the Civil Case No. 15 of 2023 between the parties which was dismissed by this Court through dismissal order for want of prosecution on 1st August 2024, the applicant preferred this application under Certificate of Urgency on 09/08/2024. It was submitted that it is true that when the Civil Case No 15 of 2023 was called for hearing on that material date the applicant and her advocate were not in Court. The reasons for failure to appear on part of the Counsel for applicant is that when the hearing was fixed on 25/07/2024, the Counsel for both parties forgot that on 01/08/2024 was scheduled for the Annual General Meeting of the Tanganyika Law Society (TLS) and before that set date of hearing the Counsel for Plaintiff noticed 2|Page the mistake and she took action to consult the Counsel for Defendant by calling to enquire whether he would attend the hearing or the attend the TLS AGM. The Counsel for the parties agreed that they shall attend the TLS Annual General Meeting on that material date. The counsel for applicant reiterated further that upon learning that the Counsel for the Defendant would not be in court and given the family challenges the Counsel for Plaintiff failed to file leave of absence thus instructed the representative of the Plaintiff one Reverend Philemon Mkumbo Matonya that he should appear before the Court to inform the Court on the absence of the advocates for the parties. Annexure F.1 which is a letter of the Chief Registrar of the Court and receipt for TLS Annual General Meeting are reflecting that counsel for the applicant was attending the TLS AGM. The payment was made physically at the Conference Centre where the AGM was being conducted. It is submitted that the person who had to appear Rev Philemon Mkumbo Matokya failed to appear as a result of road traffic as on that day there were Convoy of the Deputy Minister who was the Guest of Honour to that meeting. It is argued that there were a lot of motor vehicles on road belonging to the advocates who were attending the Annual General Meeting of TLS as the Conference Centre is nearby the Court. The same road in the Court's direction is used to approach the Conference Centre. 3|Page On arrival, the applicant's representative found that the case has been dismissed and he was informed that the same was dismissed. It is a Clerk of the Court who informed the representative of the applicant. This reason is covered on Paragraph 6-7 of the affidavit in support of the application. We pray that Annexure F.1 collectively be considered positively in determining the matter before the Court. As we have stated in Paragraph 7 of the affidavit that it was unfortunate for the applicant to fail to appear when the matter was scheduled for hearing of the Plaintiff's case. According to the applicant, it is on record that from the institution of the case to the date of dismissal, the Plaintiff and their advocate had not failed to appear before the Court. The applicant could not have failed to appear to court negligently. It was the applicant’s prayer that this Honourable Court be pleased to set aside dismissal order and restore the Civil Case No. 15 of 2023 as per grounds stated above on the matter. The case of Shabir Din versus Ram Parkash Arnand [1955] EACA 48-50, the Court noted about sufficient cause that the Court must have regard to all surrounding circumstances of the matter on alleged circumstances to constitute sufficient cause including the conduct of the applicant both in prior and subsequent and respective merits of the parties. In the case of Pithon Waweru Maina versus Thuku Mugira, the Court of Appeal of Kenya at page 9, reiterated possibility of granting the prayer on sufficient cause. 4|Page In the case of Alfred Kinswaga versus Hassan Nassoro Paschali and others, Miscellaneous Land Application No. 200 of 2022 at page 4 analysed the setting aside the dismissal order of the Court. Further, on paragraph 9 of the affidavit, the applicant had stated that he shall suffer irreparable loss. The nature of claims relates to the dispute of leadership. If the dispute is not heard on merits then the conflicts shall continue to exist without being resolved. In the case of TANESCO versus IPTL and 2 Others [2000] TLR 324, the Court of Appeal stated about factors to consider including whether the refusal is likely to cause irreparable loss on balance of convenience. It was prayed that this Court should agree with this application to resolve the dispute finally and conclusively. It was also prayed that restoration of the case is of importance, the Counsel for Defendant was not in Court as there was leave of absence. In Kambona Charles versus Elizabeth Charles, Civil Application No. 529/17 of 2019, at page 8, the Court noted that advocates are human beings subject to errors and mistakes thus should not be punished for their inequities. Thus, it was the applicant’s prayer that restoration of the Civil Case No 15 of 2023 be ordered and dismissal be set aside. 5|Page Mr. Godwill Benda, advocate opposed the application on behalf of the respondents. He adopted the joint counter affidavit for and its annexure that forms part of the counter affidavit to form part of the submission. It was his prayer that contents of the counter affidavit form the basis of the submission with regard to restoration of the Civil Case No 15 of 2023. It was submitted that with regard to lateness of Rev Philemon Mkumbo on that material date that could have made him fail to reach the court premises timely, the Counsel for the applicant failed to demonstrate at what location was Rev Mkumbo on before the time of appearance to Court. Otherwise, the assertion lacks substantiation. With regard to the cited cases, the Kenyan case is not relevant in circumstances of this application as the applicant has not stated whether or not the same relied on the provision of the Civil Procedure Code that is pari materia to the provision that was used by this Court to dismiss the matter for failure to appear on date set for hearing. For other cases, they seem to be correct some binding while others are persuasive in nature though its relevance to support for application is left to Court to determine. On leave of absence of the counsel for Defendants, it was submitted that when leave of absence is dully filed in Court it makes the party not appearing blameless as already the court has notice of the inability of that party to appear. 6|Page As the dismissal was in accordance with the law and the application herein is also in accordance with the law this court is entitled to make orders that are appropriate in accordance with the evidence on record whether to grant or otherwise. It is in the discretion of the Court. In short rejoinder, the Counsel for the applicant reiterated the submission in chief and invited the court to find that applicant demonstrated sufficient cause for the grant of the application. This court should determine the matter as per the submissions we have made and they are available in court record with no orders as to costs. Having heard both sides on merits or otherwise of the application, I have perused thoroughly the application and the affidavit in support or opposition to the application and oral submission. It is pertinent to this court to determine validity of the application or otherwise. The issues of appearance, effect of non- appearance and the steps thereto to address the matter once a matter is dismissed for want of prosecution at this Court in matters of civil nature is governed by the Civil Procedure Code. Order IX Rule 6 (1) of the Civil Procedure Code, Cap 33 R.E. 2019 is lucid on the procedure to challenge a dismissal order entered for non- appearance of the parties to a case when the same is called for hearing. It states that: 7|Page 6.-(1) Where a suit is wholly or partly dismissed under rule 5, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside and, if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. It is clear that Plaintiff may apply for setting aside the dismissal order. The law permits. However, there are criteria for such application to be successful. First, there must be sufficient cause for the non-appearance. Second, the Court if satisfied with the reasons for failure to appear may make an order setting aside the dismissal order on terms that court would deem fit. Thus, setting aside the dismissal order and restoration of the matter involves exercise of the discretion of the Court. The Court must be convinced that there is sufficient cause for the failure to appear. It is important to ascertain if the reasons advanced by the applicant disclose a sufficient cause to warrant this Court apply reason and justice rules. The affidavit in support of the application by Maria Seleman Ntui, reveals that: 8|Page 1. THAT, I was applicant's Counsel in Civil Case No. 15 of 2023 in which the said applicant was a plaintiff before this honorable court. 2. THAT, on 25th, July, 2024, both parties appeared before the court and scheduled the matter for hearing on 1 st and 2nd August, 2024. 3. THAT, when scheduling the hearing date on 25th, July, 2024, unfortunately, Advocates of both parties overlooked the issued notice by the Chief Registrar about Tanganyika Law Society Annual Conference and Annual General Meeting that would be held from 29th July to 3rd August, 2024. Leave is craved to refer annexure marked “F1" to form part of this affidavit. 4. THAT, following the overlook, and prior to the hearing date, the applicant counsel communicated with the respondent's counsel and both notified that they would be attending the TLS General Meeting (AGM) as such they agreed to inform the court accordingly. 5. THAT, following the agreement, applicant's counsel informed the applicant to enter appearance to the court and inform the court that she was attending the said General Meeting. 6. THAT, fateful enough, the Applicant was also late to appear before the preceding Judge, when the matter was called for hearing due to road traffic; as such the matter 9|Page was dismissed with cost for want of prosecution. Leave is craved to refer the dismissal order marked "F2" collectively to form part of this affidavit. 7. THAT, this was really unfortunate because both applicant and her counsel had never missed the court session since the matter was admitted as can be easily evidenced by the proceedings of the Civil case No 15 of 2023. 8. THAT, following the subject, on 3rd August, 2024 the applicant's counsel requested the copy of proceedings and dismissal order in which she was availed with the copy of the dismissal order of 7th August, 2024, hence this application. Leave is craved to refer request letter marked "F3"collectively to form part of this applicant. 9. THAT, for the interest of justice, this Application is of great importance as the applicant is not heard on merit of which if this application will not be granted the applicant shall suffer the irreparable loss. The reasons from the affidavit are mainly two. First, the counsel for the applicant was attending Annual General Meeting of Tanganyika Law Society (TLS AGM) on the material date scheduled for hearing. Second, the applicant’s representative was prevented by road traffic. These are reflected in Paragraphs 4-6 of the affidavit. 10 | P a g e For the first ground, it is lucid that the counsel for applicant knew of the existence of Tanganyika Law Society Annual General Meeting prior to the date of the meeting and took initiative to communicate with counsel for the respondent about the meeting. It is on record that both counsel for applicant and respondent agreed to attend the meeting while agreeing to inform the Court accordingly. It is on record that the Court was not informed of the non-appearance of the applicant’s counsel. It would appear that the learned advocate decided to take it for granted that attendance of the meeting was so important than complying with court order mutually agreed by the parties on 25th July 2024. I find there is nothing tangible to substantiate non- appearance of the applicant’s counsel as she never took any initiative to notify this court through notice of leave of absence to be blameless. Indeed, I find no merits on this first limb as the advocate failed to notify the court in writing just a simple notice of absence in Court on material date scheduled for hearing. It is record that the counsel for applicant made efforts to communicate with respondent’s counsel prior to hearing date. However, there was conspicuous absence of any leave of absence to court by the same advocate who informed this Court that she realized before hearing date that date scheduled for hearing was also fixed for TLS Annual General Meeting. Such deliberate choice of the counsel for the applicant should not be condoned thus should bear the consequences of laxity to take appropriate measures to inform the court on her absence. 11 | P a g e Regarding the second ground that applicant’s representative was prevented by road traffic on that material date, is also devoid of merits. First, the applicant does not disclose at what time did the representative arrived in Court. Also, it does not disclose from which direction was the applicant’s representative was arriving from on that day. Third, the neither the name of the Court Clerk who informed the representative of the applicant that the civil case had been dismissed for want of prosecution nor the said clerk has been made to affirm an affidavit that effect. In the case of Lim Han Yung & Another vs Lucy Treseas Kristensen (Civil Appeal 219 of 2019) [2022] TZCA 400 (28 June 2022) (TANZLII), at pages 20-21, the Court Stated that: We do not see any good reason of faulting the High Court which, in exercise of its discretion, found that the appellants failed to discharge their duty of giving sufficient reasons to justify their failure to file a written statement of defence as ordered on 30.11.2017. The arguments that the appellants were misguided and let down by their erstwhile advocates and also that they were not being updated on the progress of the case, are not only baseless but they are also unfounded. In the case of Barretto Hauliers T. Ltd vs Josephine E. Mwanyika & Another (Civil Application No. 27/01 of 2022) [2024] TZCA 12 | P a g e 178 (13 March 2024) (TANZLII), at page 6, the Court of Appeal reiterated that: I feel it is instructive, as a matter of general principle, to reiterate that whether to grant or refuse an application like the one at hand is entirely in the discretion of the Court. It bears reaffirming that, in exercising that discretion the court has to abide by the rules of reason and justice and that the discretion is judicial as such it has to be exercised judiciously. According to the principle in the cited case, exercise of the discretion of the Court should be governed by the rules of reason and justice. Such rules of reason and justice apply to circumstances of the case where the applicant has demonstrated sufficient cause. In the instant case, neither of the two grounds which form basis of the application has demonstrated that there was sufficient cause. There are therefore no tangible reasons to exercise the judicial discretionary powers to restore the dismissed civil suit. Without proof of the sufficient grounds to exercise judicial discretionary powers to restore the dismissed suit by setting aside the dismissal order, it will be abscondment of duty for the court to allow flimsy grounds without iota of proof for non-appearance of the applicant who was the Plaintiff and her advocate on the date set for hearing of the Plaintiff’s 13 | P a g e case. The Plaintiff, in the circumstances, must bear the consequences of their deliberate action to fail to comply with the court order to appear for hearing of the case. It is settled opinion of this Court that the application lacks merits thus I shall proceed to dismiss it for want of merits. Each party shall bear its own costs for this application. It is so ordered. DATED at DODOMA this 12th day of September 2024. E.E. LONGOPA JUDGE 12/09/2024. 14 | P a g e