21996 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM (Originating from Land Case No. 178 of2023, High Court, Land Division) MISC. LAND APPLICATION NO. 21996 OF 2024 YAHAYA MLOOGO NDYEMA........................................... APPLICANT VERSUS KAMAL ALLOYS LIMITED.......................................... RESPONDENT RULING Date of last Order: 12/11/2024 Date of Ruling: 05/12/2024 A. MSAFIRI, J The applicant has brought this Application under Order IX Rule 6 (1), (2), Order XLIII Rule 2 and Section 95 all of the Civil Procedure Code Cap 33 RE 2019(herein the CPC). He is seeking for the court order that the same be pleased to set aside the dismissal order dated the 26/6/2024 and restore Land Case No. 178/2023. The application was supported by an affidavit sworn by the applicant himself. The respondent did not file a counter affidavit despite the order of the court to do so by 28/10/2024. The application was argued by way of written submissions, wl q- i The submission in chief and rejoinder for the applicant was drawn and filed by Tenzi Anthony Nyundulwa, learned Advocate while the reply submission by the respondent was drawn and filed by Augustino Edwin Ndomba, learned Advocate. I have gone through the submissions by the counsels for the parties. Before determination of the application basing on the submissions by the parties, first I would like to address the fact that the respondent did not file a counter affidavit but have filed written submission to oppose the application. In the submission by the respondent through his advocate, he has claimed that this court has instructed the applicant to serve the respondent with the chamber application by 21/10/2024. That, however the applicant failed to effect service of chamber application and an affidavit as ordered by the court, but instead, the respondent was served on 29/10/2024 just one day after the deadline for the respondent to file a counter affidavit which was to be filed by 28/10/2024. The counsel argued further that as a result, the respondent failed to file a counter affidavit on time as she didn't have the chamber summons and an affidavit in support of application. Mi 2 The counsel for the respondent admitted that the respondent did not file a counter affidavit but she still has an avenue of contesting an application on points of law. That, this position was set in the case of Finn Von Wirden Petersen & Another vs. Arusha District Council, Civil Application No. 562/17 of 2017, CAT at Arusha (Unreported). In rejoinder, the counsel for the applicant contested the respondents' allegations and contended that the respondent has no room to bring those allegations now as she had room to appear before the court, and the court would have made necessary orders. That, however the respondent for the reasons known to herself, chose not to enter appearance in a date scheduled for the parties in application to appear before the court. The counsel for the applicant added that the respondent has now no room to bring those allegations. Indeed, the respondent did not appear in court on 14/11/2024 when the court made a reschedule order for the reservice, and she did not advance any reason for her absence in court. It is the position of law and procedure that when a party fails to file his counter affidavit, his right to argue the application on both law and facts is 3 waived. The only remedy the party has is to argue only on points of law as correctly observed by the counsel for the respondent. Following that position, the respondent has a chance to reply/argue on points of law only and not to go into the facts and evidence on the application as he himself has waived that right. Furthermore, before determination of the Application on merit, I will first determine the points of law which was raised by the respondent into his submission. Basing on the position that the respondent is allowed to argue only on matters of law since he did not file a counter affidavit, the respondent pointed out two points of law namely, first, the application is time barred and second; the application is incompetent for failure to join the necessary part to the application. On the first point of law, the counsel for the respondent submitted that on 25/6/2024, this court dismissed Land Case No. 178 of 2023. That Order IX Rule 6(1) of the CPC provides for an aggrieved party to make an application to set aside the dismissal order. That on the date that the suit was dismissed for want of prosecution, it was coming for Final PTC, and that under Order VIII Rule 20(2) of the CPC, when a suit is dismissed for non-appearance of the plaintiff, the aggrieved party may make an application for restoration within 14 days from the date of dismissal. 4 The counsel for the respondent pointed that the instant application is time barred as it was filed out of 14 days and even out of 60 days of general principle for making any application which time limit have not been covered by the law. Replying on this point in the rejoinder submission, the counsel for the applicant argued that the main case was not dismissed during First Pre-Trial Conference, but it was dismissed on the date set for Final Pre-Trial Conference and hearing, hence it does not fall under Order VIII Rule 20 (2) of the CPC as it was wrongly put by the counsel for the respondent. The counsel for the applicant argued that, under circumstances of the case, the Application is technically within time under the provisions of Section 19(5) of the Law of Limitation Act, as it was necessary for the applicant to obtain the proceedings or Ruling of the court to be aware with the status of the case and make a meaningful application. Having gone through the arguments by counsels for both sides in this point of law, the issue for determination is whether the instant Application is time barred. I agree with the counsel for the applicant that Land Case No. 178 of 2023 between Ramadhani Athumani Chande & Another vs Kamal Alloys Ltd was dismissed for want of prosecution with costs on 25/6/2024. On that date, 5 the suit was scheduled for Final Pre-Trial Conference and hearing on two consecutive days i.e, on 24/6/2024 and 25/6/2024. Neither of the plaintiffs appeared in court on both two scheduled days and there was no any notice advanced to the court by the plaintiffs to explain or notify the court on their absence. Therefore, the dismissal order in the instant matter does not fall under Order VIII Rule 20(2) of the CPC as this provides for the circumstances on failure to appear of one or more parties on the date set for First Pre-Trial Conference. But in the present matter, the suit was dismissed for want of prosecution on the date set for Final Pre-Trial Conference and hearing hence the circumstances falls under Order IX of the CPC. The cited provision provides the avenue for an aggrieved party to make an application to set aside the dismissal but subject to the Law of Limitation Act, Cap 89 R.E 2019. Part III Item 4 of the Schedule to the Law of Limitation Act provides the time limitation to set aside a dismissal of the suit to be thirty (30) days. The counsel for the applicant has stated that since it was necessary for the applicant to obtain the proceedings or Ruling of the court on dismissal, the instant Application is technically within the time as per Section 19(5) of the Law of Limitation Act. Section 19(5) provides as follows: - In • 6 19(5): Where the court to which an appeal or application for leave to appeal or application for review is made, is satisfied that it was necessary for the appellant or as the case may be, the applicant, to obtain a copy of the proceedings of the relevant suit or proceeding before lodging or making the appeal or the application, the court may allow to be excluded from the period of limitation prescribed for such appeal or application, the period of time requisite for obtaining a copy ofproceedings" (emphasis added). Indeed, Section 19(5) of the Law of Limitation Act provides the court with the powers to allow the exclusion from period of limitation the time or days which the aggrieved party was seeking to obtain a copy of proceedings and/or the impugned order. However, this does not come automatically as the applicant likes to believe. Reading carefully the wording of Section 19 (5) of the Law of Limitation Act, the court will allow exclusion of the said period from time limitation only if it is satisfied that it was necessary for the applicant to obtain a copy of the proceedings and order. It is the applicant who is to satisfy the court that the obtaining of the proceedings and order was necessary. In addition, the applicant has to satisfy the court that he indeed made effort to obtain the said copies of the requisite documents, the period he did so, and that he was delayed in getting 7 the documents and that was the reason of his delay to file the application within time. That is what is called technical delay (see the case of Alex Senkoro &3 others vs. Eliambuya Lyimo (as administrator of the Estate of Frederick Lyimo, Deceased), Civil Appeal No. 16 of 2017, CAT at DSM (Unreported). The applicant/aggrieved party will satisfy the court about the technical delay by filing the application seeking for extension of time and technical delay will be the reason advanced to the court so that, if it is a sufficient cause, then the court might grant the leave for an aggrieved party to institute the sought Application out of time. In the instant application, the impugned order of dismissal for want of prosecution was delivered on 25/6/2024, while the current Application was filed on 05/9/2024, about three months after the delivery of the impugned order. The Application is hopelessly out of time as it was supposed to be filed within thirty (30) days from the date of the delivery of the impugned order. The counsel for the applicant has told the court that, the application is technically automatic, but the position of the law is that the applicant has first to satisfy the court that his application is technically automatic. Hence, 8 he has first to seek for extension of time before seeking to set aside the dismissal order. Having made the above analysis, I find that this Application is time barred and I hereby struck it out with costs. It is so ordered. 05/12/2024 9