yahaya ramadhani administrator of estates of the late said abdallah vs siwajui juma 14 others 2021 tzhclandd 6822 24 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC LAND APPLICATION NO. 486 OF 2021 (Original from Misc. Land application No. 606/2020 before Hon. Mango, J in the High Court of Tanzania, Land Division at Dar es Salaam) YAHAYA RAMADHANI (The Administrator of the estate of the late SAID ABDALLAH)................................................................APPLICANT VERSUS SIWAJUI JUMA........................................................ 1st RESPONDENT HAMIS OMARY RAJABU.......................................... 2nd RESPONDENT HAMIS OMARY RAJABU.......................................... 3rd RESPONDENT HAMIS NASORO ............................................................ 4th RESPONDENT JAMES MKUDE NGUBI 5th RESPONDENT ALEX KIKWAJU.......... 6th RESPONDENT ATHANASI YUSTIN .... 7th RESPONDENT DARU DANYERI......... 8th RESPONDENT RAISI SAIMON.......... 9th RESPONDENT CLEMENCE ALEX KIKWAJU....................... ........... 10™ RESPONDENT ABIAS KAUONJE.................................................... 11™ RESPONDENT GODWIN SAID.............................. 12™ RESPONDENT JUSTIN MAIKO..................................................... 13™ RESPONDENT JOHN KOJONGO....................................... ........... 14™ RESPONDENT ....... i cTH D«=«?r*o^in>ciMrr 1'1 VI mri utz tj.1 Lizm w ■ • >• .. •• .. • •• aw .%>_w> 1 Date: 24/11/2021 Coram: Hon. A. Msafiri, J For Applicant: Mohamed Habib Nyundo, Advocate For 1st - 15th Defendant: Daniel Oduor, Advocate RM A: Agnes Mr. Nyundo, Advocate I have been instructed today to represent the applicant and I didn't have time to peruse the file. However, I have discovered that the applicant filed an affidavit and reply to the counter affidavit in which he has raised a Notice of objection against the joint counter affidavit of the respondents. However, I have noticed that even the applicant's affidavit have some defects along with the chamber summons which the prayers has no merit to the applicant. For that purpose, I pray to withdraw this application with leave to refile with no costs. That is all. Sgd: A. MSAFIRI, JUDGE 24/11/2021 Mr. Oduor for respondents: This matter was coming for hearing due to the last order dated 10/11/202L On 10/11/2021, the applicant was absent, on notice that he is sick he is paralyzed. The court ordered that he should appear in court and prove that with necessary documents. 2 On the prayer for withdrawal, on 22/11/2021,1 was phoned with counsel for the applicant and introduced himself notifying me that they had a document to serve me. Unfortunately, that was not done i.e. I was not served with that document. It is only today that I have been served with the Notice of objection with reply to counter affidavit. These documents shows that they have been filed since 16/11/2021. Even if the counsel has been instructed today, the applicant himself would have been prompt and diligent to serve the respondents with the filed Notice of objection. Therefore, I see this that this is deliberate attempt of the applicant and his advocate to surprise us with the Notice of preliminary objection. It is also a deliberate attempt to surprise us with the application to withdraw the application yet on 16/11/2021 they filed the document against our counter affidavit. If they knew that they wanted to withdraw, they should have done so within an ample time so as to give us time to reply on the application. Furthermore, the oral application of withdrawal is bad in law as it infringe Order 43 Rule 2 of the Civil Procedure Code. For those reasons we submit that we object this prayers for withdrawal and even if it is proper before this Court, the prayers should be done by a substantive application upon which we will have ample time to prepare ourselves and put up a legal defense and not be taken by surprise. 3 Mr. Nyundo, Advocate On the order about the sickness of the applicant, I have been engaged today and I have not been able to peruse the file to see whether there was any court order. On the advocate who phoned the advocate for the respondent by the name of Chundo on 22/11/2021, those are mere allegations, because I have engaged today. Furthermore, the advocate for the respondents have not proved those allegations. The Rejoinder and Notice of Objection has been filed by the applicant in person therefore it proves that I have no knowledge of these documents/pleadings. On Order XLII Rule 2 of Civil Procedure Code, it does not bar the oral applications made before this Court, so the allegations by the Court for the respondents are devoid of merit. From all the above, I object that I have never phoned him, I object the allegation that we did not comply with Order XUII, whereby by the proviso, the oral application can be entertained. For those reasons we pray for this Court's order to withdraw this application with no costs. 4 That is all. Sgd: A. MSAFIRI, JUDGE 24/11/2021 RULING This matter was coming for hearing today on 24/11/2021. The Counsel for the applicant addressed the Court that he has been instructed today to represent the applicant. That he didn't have time to peruse the case file. However, he had discovered that the applicant has filed a reply to the counter affidavit and no Notice of objection against the joint counter affidavit of the respondents. He submitted further that he has noticed also that there is defects in the applicant's chamber summons with the affidavit which could have no merit to this application even if there was no preliminary objection raised against the same. He prayed to withdraw the application with leave to refile with no costs. Vehemently objecting, Mr. Oduor for the respondents submitted that first, there was an order dated 10/11/2021, on the same date, the applicant was absent reported sick on paralysis. The Court ordered that he should appear in Court and prove that with necessary documents. He prayed that this order should be complied with. 5 Second; on the prayer for withdrawal, Mr. Oduor submitted that are 22/11/2021 he was phoned with counsel who introduced himself as Mr. Chundo as counsel for the applicant and stated that he wanted to serve him with some documents. That was not done. That they have been served today with the Notice of Objection and reply to the Court affidavit which wa filed since 16/11/2021. Mr. Oduor objected to this stating that it was b deliberate attempt of the applicant and his advocate to surprise them. Thait if they knew that they wanted to withdraw the matter, they should have done so within the reasonable and ample time to give the respondents time to respondent to the matter. Third; That the oral application was bad in law as it infringe order XLII rife 2 of the Civil Procedure Code. He prayed that the court should not grant the prayers as they should be done by substantive other party by surprise. On rejoinder, Mr. Nyundo vehemently denied the allegations/submissions bf the counsel for the respondent and reiterated his submissions in chief afe prayers therein. Having heard the submissions by both parties, the issue herein is whether the prayers of withdrawal by the applicant is proper before this Court. This application was filed on 13/9/2021 and as per the chamber summons and affidavit, it was by the applicant himself (in person). 6 On 10/11/2021, the applicant was absent but the respondents were represented by Mr. Oduor. On the part of the applicant, appeared one: Zainab Said Abdallah whom the Court ordered to be served with the counter affidavit on behalf of the applicant. The applicant has engaged the advocate who is praying for withdrawal so as to go through the file and refile the application as he has discovered defectiveness in the pleadings without costs. Mr. Oduor is objecting that they should have been given ample time to reply to the withdrawal as the^ have legal defence against it. I am of the view that since it is the applicant who is praying the withdraw^, and there is no any raised preliminary objection against the application: pending before this Court, then the application/prayers for withdrawal fc proper before this court. I have read carefully Order XLIII Rule 2 of the Civil Procedure Code. Tte same give room for the Court to entertain an application made orally. Hr. Odvor did not argue on the issue of costs, I am satisfied that the applicate's counsel under the circumstances has given or submitted ample reasons for this Court to grant his prayers. Those reasons were shown in his submissions that this application was fifed by an applicant a layman, who has now engaged an advocate who has discovered defectiveness which has not yet been discovered or pointed (Mt 7 by the respondents; and he wants to withdraw the application. I am of the view that it is just that the applicant be allowed to withdraw the same with liberty to refile if he wishes so. I hereby grant the prayers of withdrawal as prayed, without costs. The application is hereby marked withdrawn. It is so ordered. Sgd: A. MSAFIRZ, JUDGE 24/11/2021 Order: Application is hereby marked withdrawn without costs. A. MSAFIRI, JUDGE 24/11/2021 8