oc 16 BOIRI OMMY CIVIL APPEAL NO

IN THE HIGH COURT OF TANZANIA (TEMEKE SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 26597 OF 2024 (Originating from Misc. Civil Application No. 7852 of2024 of District Court of Temeke at One Stop Judicial Centre) ZAINABU FADHILI BORI................................................... APPELLANT VERSUS SAID HUSSEIN MTITWA.............................................. RESPONDENT JUDGMENT Date of last order: 03/01/2025 Date of Judgment: 29/01/2025 OMARI, J. Zainab Fadhili Bori, the Appellant herein is aggrieved by the decision of the District Court of Temeke at the One Stop Judicial Centre Temeke in Misc. Civil Application No. 7852 of 2024. She has filed this appeal parading five grounds as follows: 1. That, the trial magistrate erred in law and fact by refusing to grant the Appellant's prayer of setting aside the dismissal order, finding that the Appellant has not advanced sufficient reason, while supporting the reason advanced by the Appellant for restoration. Hence creating a confusing decision. 2. That, the trial magistrate erred in law and fact by trying to edit the medical sick sheet, hence failing to understand what the doctor on the sick sheet meant. 3. That, the trial magistrate erred in law and fact by holding that counsel for the Appellant failed to state how long it took her to get strength to appear in court on the same day, hence doubting the sickness of the counsel. 4. That, the trail magistrate issued ruling and drawn order which are contrary to the provision of Order 20 Rule 7 of the Civil Procedure Code, Cap 33 R.E 2019, hence dispensing unlawful decision. 5. That, the trial magistrate erred in law and fact by disregarding the sufficient reason for restoration/setting aside dismissal order. On the strength of the above grounds the Appellant prays inter alia for this court to reverse the Ruling and Drawn Order of the district court and grant the Appellant's Application for setting aside the dismissal order. Said Hussein Mtitwa, the Respondent herein appeared to contest the Appeal. When the appeal was called for hearing the Appellant was represented by Apis Maigwa whereas the Respondent had the services of Agness Uisso, both are learned advocates. Submitting in support of the grounds of appeal, Ms. Maigwa began with a brief background of how the parties ended up in court, sought to abandon the second ground of appeal and to jointly submit on the first and third grounds of appeal as well as the fourth and fifth grounds of appeal. Arguing on the first and third grounds of appeal, Ms. Maigwa commenced with an elaboration that, what amounts to sufficient reason in law defined in Black's Law Dictionary as what is enough to substantiate something; while what is good cause is defined as substantial reason that affords a legal excuse. She went on to state that while the law is silent on what can prevent an advocate from attending a matter in a prescribed time, the same is provided for in case law and one of those reasons is sickness. Ms. Maigwa argued that the condition for using sickness as a reason is the production of proof that the person was truly sick at the material time. She cited the cases of Richard Mlagala & Others v. Aikael Minja & Others (Civil Application No. 160 of 2015) [2015] TZCA 544, Leonard Magesa v. M/S 01am T. Ltd (Civil Appeal No.117 of 2014) [2015] TZCA 101 and Cyprian John Mushi v. TPB Bank PLC & 2 Others (Land Appeal 305 of 2021) [2022] TZHCLandD 261 all of which recognize sickness as a good cause. To augment her point of view that the district court erred, she narrated what transpired on the material day the case was dismissed. She fell ill at around 0500HRS as she was preparing to go to court, she was sent and admitted to a health facility. When she regained strength, she went to court in the afternoon only to find the matter she was to attend was dismissed for want of prosecution. According to counsel, she immediately files an Application for restoration. Ms. Maigwa was adamant that she had failed to attend the hearing due to sickness, the district court in its Ruling agreed that sickness is a ground for a person who has failed to take an action in reasonable time and even cited the Court of Appeal decision of John David Kashekya v. the Attorney General, Civil Application No. 107 of 2012 and Richard Mipawa Manara v. FINCA TZ Limited and another, Land Appeal No.15 of 2021 which recognize sickness as a good cause. Yet, the learned magistrate dismissed the Application for restoration after raising doubt on the condition of the advocate. This, according to counsel caused confusion. She argued further that having produced the medical chit, the counsel had advanced sufficient medical grounds. She thus, urged this court to find that the advocate was prevented by good cause and accord the Appellant the right to be heard. On the remaining grounds of appeal, Ms. Maigwa averred that the record of the district court depicts that the Drawn Order is dated and signed on 08 October, 2024 and the Ruling is dated and signed on 09 October, 2024. This, according to counsel is contrary to Order XX Rule 7 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) which makes it unlawful to have that descripancy and more so because the Ruling was delivered on 10 September,2024 and not 08 or 09 October, 2024. Counsel opined that this casts a doubt on the existence of the Ruling at the time it was delivered. She concluded on her submission with prayers that the appeal be granted, the Ruling be revised and Civil Appeal No. 27511 of 2023 be restored so that the Appellant can be heard on merit. When it was her turn Ms. llisso took the floor and argued against the grounds of appeal. She commenced on the first and third grounds of appeal as were jointly submitted by the Appellant's counsel. Ms. Uisso explained that it is clear in the Ruling that the magistrate did not dispute that sickness is a ground rather she had doubts about the sickness thus, refrained to exercise powers to grant powers sought. Counsel went on to explain that the sick sheet attached to the Affidavit had a different ailment than what counsel had described in the Affidavit, thus, she relied on facts not in the Affidavit. She cited the case Maulid Mohamed Mafanya (Next Friend of Yusuf Kassim Yusuf) vs Mohamed Eidha Awadh & 5 Others (Misc. Land Application No. 768 of 2023) [2024] TZHCLandD 135 to augment her contention that the inconsistentinces created doubt. Concluding on on these two grounds she prayed that the appeal be dismissed since the appellant failed to act diligently in adducing sufficient cause. Ms. Uisso submitted on the fourth ground of appeal stating that the Appellant cited Order 20 in the memorandum of appeal which is a non-existent Order as the Orders in the CPC are in Roman numerals and not the Arabic numeral cited by the Appellant. Counsel then went on to state that the intended Order XX Rule 7 provides for Decrees and Judgment and not Ruling and Drawn Order. This, according to counsel means that the magistrate did not dispense an unlawful decision. She cited the case of Integrated Property Investment (T) Limited and Others v. The Company for Habitat and Housing in Africa (Shelter Afrique) (Civil Application No. 162 of 2015) [2016] TZCA 204 to reinforce her argument stating that if the substance of the Drawn Order complies to what is in the Ruling then they are not defective. She further submitted on the fifth ground of appeal stating that the Appellant failed to show good cause to convince the court to set aside the dismissal order. The facts of the illness in the Affidavit being different from the medical chit raised doubts and the magistrate being guided by Order IX Rule 3 of the CPC which requires an Application of that nature to be granted upon there being good cause being demonstrated. Ms. Uisso cited the case of Bahati Mussa Hamisi Mtopa v. Salum Rashid (Civil Application No. 112/7 of 2018) [2019] TZCA 69 which interprets good cause and went on to elucidate the Affidavit in support of the Application lacks that. She then argued that the counsel did not make any effort between 0500HRS and 0700HRS including informing the client if she did not have contact with opposing counsel. Ms. Uisso then concluded her submission with a call for the appeal to be dismissed for lack of merit as they failed to substantiate good cause for non- appearance. By way of a brief rejoinder Ms. Maigwa refuted Ms. Uisso's submission stating that the learned magistrate agreed with the sickness with doubt only being cast on the time she managed to go to court. She explained that being exempted from duty does not mean one is not supposed to work. Ms. Maigwa also went on to distinguish the cases cited stating they are different from what is in Order XX Rule 7 and insisted that the court erred. She concluded that the appeal be granted in the interest of justice as the matter involves children. I have examined the record of the lower court and considered the grounds of appeal and counsel's submission for and against of appeal and discerned that there is only one issue for the determination of this court; that is whether the appeal has merit. The question that needs answering is if the Appellant herein showed good cause and reasons for setting aside the dismissal order and restoration of Civil Appeal No. 27511 of 2023. I shall commence with the first, third and fifth grounds of appeal. On this I would like to address the doubts casted by the learned magistrate; first, the discrepancy in the illness and secondly the timing and manner of the advocates appearance. On the first one, it is undisputed that Civil Appeal No. 27511 of 2023 was dismissed on 3 April, 2024 for want of prosecution. Upon that realization the Appellant vide a Chamber Summons and Affidavit of one Apis Maigwa an advocate sought for the trial court to restore and set aside the dismissal order. Paragraph 4 of Ms. Maigwa's Affidavit contains averments that on the material date of the dismissal she fell sick as she was preparing to go to court. She described having "terrible" stomach pain and diarrhoea, which led to the loss of fluids thus, necessitating being sent to the health centre for first aid. As a result, she was admitted for some hours for treatment after having been diagnosed with "food poisoning." She annexed a medical sheet from the facility where she was treated. In Paragraph 5 of the Affidavit, Ms. Maigwa stated that she was prevented from attending the hearing by sufficient cause, that is sickness. This is so because she had no way of informing the court, the Respondent's advocate or his office as the matter was fixed for hearing at 0700HRS she had the case file and did not have the opposite counsel's mobile number. This, is in my view the crust of the matter; the essence of the question as to whether a good cause has been established. The material that the court was provided to work with is a sick sheet dated 03 April, 2024 which indicates the learned advocate was attended on 03 April,2024 because of abdominal discomfort and excused from duty for one day from the same date. The learned magistrate after considering the Affidavits and submission by both sides. Like me, she concerned herself with the question as to whether the Appellant had advanced good cause to convince this court to restore and set aside the dismissal order. In doing so she sought guidance in the case of John David Kashekya v. the attorney General (supra) where the Court of Appeal held that: "Sickness is a condition which is experienced by a person who is sick. It is not a shared experience. Except for children who are yet in a position to express their feelings, it is the sick person who can express his/her condition whether he/she has the strength to move, work and do whatever kind of work he is required to do." I should at this juncture state that the above observation describes sickness as a good or sufficient cause. And, what is at issue is not whether the learned advocate was ill. It is whether the sickness she averred in the Affidavit is what prevented her to attend the hearing on the prescribed date. In other words, what the learned magistrate also had issues with is the discrepancy in the Affidavit and submission by the learned advocate. The contents of the medical chit that was annexed to the Affidavit caused the learned trial magistrate to poke holes into the sickness and raised a doubt; as was in the case of Maulid Mohamed Mafanya (Next Friend of Yusuf Kassim Yusuf) vs Mohamed Eidha Awadh & 5 Others (supra) cited by the Respondent's counsel. The medical chit annexed had only "abdominal discomfort" yet the learned advocate stated in the Affidavit she was diagnosed with "food poison" (sic) something not in the medical chit something that the trial magistrate did not find plausible. This, in my opinion is why the learned magistrate also resorted to citing the Richard Mipawa Manara v. FINCA TZ Limited and another (supra) case wherein the Court of Appeal recognized sickness as a sufficient cause/ good ground for failure to file written submission however also observed as follows: "The reasons given for non-compliance of Rule 106(1) are that of the Applicant's Advocate, Mr. Ntonge was seriously ill and the other advocate Dr. Lamwai was already committed in other courts. The issues which stem from the above is whether the applicant's advocate has advanced good cause to warrant the calling in aid ofRule 106(19) ofthe Rules. I have no doubt in my mind that sickness of an Advocate or commitment of an Advocate is another court, if backed by concrete reasons can amount to sufficient cause/good ground for failure to file written..." From the above, it is clear it is not enough for one to state they are sick they have to provide backing which in a case of sickness is medical chit. In the instance case the Appellant's counsel in convincing the district court attached a medical chit. However, the trial magistrate was not convinced. The second doubt cast by the learned magistrate is that the learned advocate who was ill to the extent already explained managed to go to the court to follow up on the same day; while she was given a day of bed rest. The learned magistrate was weary as to how she got the strength thus, cast doubt as regards the seriousness of the illness. This, I shall not belabour on since as the authorities cited above sickness is a condition which the bearer knows better. All the same what the Appellant needed to prove was that there was a sufficient cause for the absence that led to the dismissal of the appeal. She, seeking to rely on sickness as a reason attached a medical report, only that the said report does not tally with the facts she deposed in the Affidavit. Having failed to back her absence with concrete reason(s), the Appellant failed to provide sufficient cause. It is for that reason that I hold the first, third and fifth grounds of appeal are without merit. As to the legitimacy of the Ruling which is dated 09 October, 2024 however, the same was delivered on 10 September, 2024 making it a violation of Order XX Rule 7 of the CPC which is what the fourth ground of appeal pivots on. I have gone through the record. The Ruling and Drawn Order that is eCMS generated filed in the memorandum of appeal are dated 09 October,2024 and 08 October, 2024 respectively. The two are appearing in the digital case file with the 08 October, 2024. The Drawn Order states: "The matter was coming for ruling before Hon. E.A.Mwakaiinga-PRM this 10/09/2024 in the presence ofAdvocate for the Applicant, Applicant and Advocate for the Respondent" Further to the above the proceedings show that on 08 October, 2024 the magistrate entered the following into the record: "Court- the Ruling was delivered on 10/09/2024 but due to technical error it was published today" This means there was a technical error that led to the discrepancy in the date of delivery vis a i//sthe publication. In my view, this does not make the Ruling unlawful. The technical error could have been dealt with in a myriad of ways to avoid the discrepancies as regards the dates. The Appellant is not contravening that on 10 October, 2024 the Ruling was delivered in their presence. That it was from the learned magistrate's head or there was no Ruling is pure conjecture. The court record is that the Ruling was delivered on 10 September,2024. Court records have to be held with the sanctity they deserve as was held in the case of Halfan Sudi v. Abieza Chichil [1998] TLR 227. Having documented there was a technical error that led to the delay in publication. One of the consequences of the delay is distortion or discrepancy of the dates however, it does not invalidate the Ruling and Drawn Order. Thus, this ground also fails and is dismissed. I am therefore satisfied that the district court performed its judicial duty of going over the material it was provided with and came up with a decision. Consequently, the appeal is dismissed. Due to the origin of this appeal, I make no orders as to costs. It is so ordered. A.A. OMARI JUDGE 29/01/2025 Judgment dated and delivered on 29th January, 2025 in the presence of Apis Maigwa and Agness Uisso advocates for Appellant and the Respondent respectively. A.A. OMARI JUDGE 29/01/2025 IN THE HIGH COURT OF TANZANIA (TEMEKE SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 26597 OF 2024 (Originating from Misc. Civil Application No. 7852 of2024 of District Court of Temeke at One Stop Judicial Centre) ZAINABU FADHILI BORI................................................... APPELLANT VERSUS SAID HUSSEIN MTITWA.............................................. RESPONDENT JUDGMENT Date of last order: 03/01/2025 Date of Judgment: 29/01/2025 OMARI, J. Zainab Fadhili Bori, the Appellant herein is aggrieved by the decision of the District Court of Temeke at the One Stop Judicial Centre Temeke in Misc. Civil Application No. 7852 of 2024. She has filed this appeal parading five grounds as follows: 1. That, the trial magistrate erred in law and fact by refusing to grant the Appellant's prayer of setting aside the dismissal order, finding that the Appellant has not advanced sufficient reason, while supporting the reason advanced by the Appellant for restoration. Hence creating a confusing decision. 2. That, the trial magistrate erred in law and fact by trying to edit the medical sick sheet, hence failing to understand what the doctor on the sick sheet meant. 3. That, the trial magistrate erred in law and fact by holding that counsel for the Appellant failed to state how long it took her to get strength to appear in court on the same day, hence doubting the sickness of the counsel. 4. That, the trail magistrate issued ruling and drawn order which are contrary to the provision of Order 20 Rule 7 of the Civil Procedure Code, Cap 33 R.E 2019, hence dispensing unlawful decision. 5. That, the trial magistrate erred in law and fact by disregarding the sufficient reason for restoration/setting aside dismissal order. On the strength of the above grounds the Appellant prays inter alia for this court to reverse the Ruling and Drawn Order of the district court and grant the Appellant's Application for setting aside the dismissal order. Said Hussein Mtitwa, the Respondent herein appeared to contest the Appeal. When the appeal was called for hearing the Appellant was represented by Apis Maigwa whereas the Respondent had the services of Agness Uisso, both are learned advocates. Submitting in support of the grounds of appeal, Ms. Maigwa began with a brief background of how the parties ended up in court, sought to abandon the second ground of appeal and to jointly submit on the first and third grounds of appeal as well as the fourth and fifth grounds of appeal. Arguing on the first and third grounds of appeal, Ms. Maigwa commenced with an elaboration that, what amounts to sufficient reason in law defined in Black's Law Dictionary as what is enough to substantiate something; while what is good cause is defined as substantial reason that affords a legal excuse. She went on to state that while the law is silent on what can prevent an advocate from attending a matter in a prescribed time, the same is provided for in case law and one of those reasons is sickness. Ms. Maigwa argued that the condition for using sickness as a reason is the production of proof that the person was truly sick at the material time. She cited the cases of Richard Mlagala & Others v. Aikael Minja & Others (Civil Application No. 160 of 2015) [2015] TZCA 544, Leonard Magesa v. M/S 01am T. Ltd (Civil Appeal No.117 of 2014) [2015] TZCA 101 and Cyprian John Mushi v. TPB Bank PLC & 2 Others (Land Appeal 305 of 2021) [2022] TZHCLandD 261 all of which recognize sickness as a good cause. To augment her point of view that the district court erred, she narrated what transpired on the material day the case was dismissed. She fell ill at around 0500HRS as she was preparing to go to court, she was sent and admitted to a health facility. When she regained strength, she went to court in the afternoon only to find the matter she was to attend was dismissed for want of prosecution. According to counsel, she immediately files an Application for restoration. Ms. Maigwa was adamant that she had failed to attend the hearing due to sickness, the district court in its Ruling agreed that sickness is a ground for a person who has failed to take an action in reasonable time and even cited the Court of Appeal decision of John David Kashekya v. the Attorney General, Civil Application No. 107 of 2012 and Richard Mipawa Manara v. FINCA TZ Limited and another, Land Appeal No.15 of 2021 which recognize sickness as a good cause. Yet, the learned magistrate dismissed the Application for restoration after raising doubt on the condition of the advocate. This, according to counsel caused confusion. She argued further that having produced the medical chit, the counsel had advanced sufficient medical grounds. She thus, urged this court to find that the advocate was prevented by good cause and accord the Appellant the right to be heard. On the remaining grounds of appeal, Ms. Maigwa averred that the record of the district court depicts that the Drawn Order is dated and signed on 08 October, 2024 and the Ruling is dated and signed on 09 October, 2024. This, according to counsel is contrary to Order XX Rule 7 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) which makes it unlawful to have that descripancy and more so because the Ruling was delivered on 10 September,2024 and not 08 or 09 October, 2024. Counsel opined that this casts a doubt on the existence of the Ruling at the time it was delivered. She concluded on her submission with prayers that the appeal be granted, the Ruling be revised and Civil Appeal No. 27511 of 2023 be restored so that the Appellant can be heard on merit. When it was her turn Ms. llisso took the floor and argued against the grounds of appeal. She commenced on the first and third grounds of appeal as were jointly submitted by the Appellant's counsel. Ms. Uisso explained that it is clear in the Ruling that the magistrate did not dispute that sickness is a ground rather she had doubts about the sickness thus, refrained to exercise powers to grant powers sought. Counsel went on to explain that the sick sheet attached to the Affidavit had a different ailment than what counsel had described in the Affidavit, thus, she relied on facts not in the Affidavit. She cited the case Maulid Mohamed Mafanya (Next Friend of Yusuf Kassim Yusuf) vs Mohamed Eidha Awadh & 5 Others (Misc. Land Application No. 768 of 2023) [2024] TZHCLandD 135 to augment her contention that the inconsistentinces created doubt. Concluding on on these two grounds she prayed that the appeal be dismissed since the appellant failed to act diligently in adducing sufficient cause. Ms. Uisso submitted on the fourth ground of appeal stating that the Appellant cited Order 20 in the memorandum of appeal which is a non-existent Order as the Orders in the CPC are in Roman numerals and not the Arabic numeral cited by the Appellant. Counsel then went on to state that the intended Order XX Rule 7 provides for Decrees and Judgment and not Ruling and Drawn Order. This, according to counsel means that the magistrate did not dispense an unlawful decision. She cited the case of Integrated Property Investment (T) Limited and Others v. The Company for Habitat and Housing in Africa (Shelter Afrique) (Civil Application No. 162 of 2015) [2016] TZCA 204 to reinforce her argument stating that if the substance of the Drawn Order complies to what is in the Ruling then they are not defective. She further submitted on the fifth ground of appeal stating that the Appellant failed to show good cause to convince the court to set aside the dismissal order. The facts of the illness in the Affidavit being different from the medical chit raised doubts and the magistrate being guided by Order IX Rule 3 of the CPC which requires an Application of that nature to be granted upon there being good cause being demonstrated. Ms. Uisso cited the case of Bahati Mussa Hamisi Mtopa v. Salum Rashid (Civil Application No. 112/7 of 2018) [2019] TZCA 69 which interprets good cause and went on to elucidate the Affidavit in support of the Application lacks that. She then argued that the counsel did not make any effort between 0500HRS and 0700HRS including informing the client if she did not have contact with opposing counsel. Ms. Uisso then concluded her submission with a call for the appeal to be dismissed for lack of merit as they failed to substantiate good cause for non- appearance. By way of a brief rejoinder Ms. Maigwa refuted Ms. Uisso's submission stating that the learned magistrate agreed with the sickness with doubt only being cast on the time she managed to go to court. She explained that being exempted from duty does not mean one is not supposed to work. Ms. Maigwa also went on to distinguish the cases cited stating they are different from what is in Order XX Rule 7 and insisted that the court erred. She concluded that the appeal be granted in the interest of justice as the matter involves children. I have examined the record of the lower court and considered the grounds of appeal and counsel's submission for and against of appeal and discerned that there is only one issue for the determination of this court; that is whether the appeal has merit. The question that needs answering is if the Appellant herein showed good cause and reasons for setting aside the dismissal order and restoration of Civil Appeal No. 27511 of 2023. I shall commence with the first, third and fifth grounds of appeal. On this I would like to address the doubts casted by the learned magistrate; first, the discrepancy in the illness and secondly the timing and manner of the advocates appearance. On the first one, it is undisputed that Civil Appeal No. 27511 of 2023 was dismissed on 3 April, 2024 for want of prosecution. Upon that realization the Appellant vide a Chamber Summons and Affidavit of one Apis Maigwa an advocate sought for the trial court to restore and set aside the dismissal order. Paragraph 4 of Ms. Maigwa's Affidavit contains averments that on the material date of the dismissal she fell sick as she was preparing to go to court. She described having "terrible" stomach pain and diarrhoea, which led to the loss of fluids thus, necessitating being sent to the health centre for first aid. As a result, she was admitted for some hours for treatment after having been diagnosed with "food poisoning." She annexed a medical sheet from the facility where she was treated. In Paragraph 5 of the Affidavit, Ms. Maigwa stated that she was prevented from attending the hearing by sufficient cause, that is sickness. This is so because she had no way of informing the court, the Respondent's advocate or his office as the matter was fixed for hearing at 0700HRS she had the case file and did not have the opposite counsel's mobile number. This, is in my view the crust of the matter; the essence of the question as to whether a good cause has been established. The material that the court was provided to work with is a sick sheet dated 03 April, 2024 which indicates the learned advocate was attended on 03 April,2024 because of abdominal discomfort and excused from duty for one day from the same date. The learned magistrate after considering the Affidavits and submission by both sides. Like me, she concerned herself with the question as to whether the Appellant had advanced good cause to convince this court to restore and set aside the dismissal order. In doing so she sought guidance in the case of John David Kashekya v. the attorney General (supra) where the Court of Appeal held that: "Sickness is a condition which is experienced by a person who is sick. It is not a shared experience. Except for children who are yet in a position to express their feelings, it is the sick person who can express his/her condition whether he/she has the strength to move, work and do whatever kind of work he is required to do." I should at this juncture state that the above observation describes sickness as a good or sufficient cause. And, what is at issue is not whether the learned advocate was ill. It is whether the sickness she averred in the Affidavit is what prevented her to attend the hearing on the prescribed date. In other words, what the learned magistrate also had issues with is the discrepancy in the Affidavit and submission by the learned advocate. The contents of the medical chit that was annexed to the Affidavit caused the learned trial magistrate to poke holes into the sickness and raised a doubt; as was in the case of Maulid Mohamed Mafanya (Next Friend of Yusuf Kassim Yusuf) vs Mohamed Eidha Awadh & 5 Others (supra) cited by the Respondent's counsel. The medical chit annexed had only "abdominal discomfort" yet the learned advocate stated in the Affidavit she was diagnosed with "food poison" (sic) something not in the medical chit something that the trial magistrate did not find plausible. This, in my opinion is why the learned magistrate also resorted to citing the Richard Mipawa Manara v. FINCA TZ Limited and another (supra) case wherein the Court of Appeal recognized sickness as a sufficient cause/ good ground for failure to file written submission however also observed as follows: "The reasons given for non-compliance of Rule 106(1) are that of the Applicant's Advocate, Mr. Ntonge was seriously ill and the other advocate Dr. Lamwai was already committed in other courts. The issues which stem from the above is whether the applicant's advocate has advanced good cause to warrant the calling in aid ofRule 106(19) ofthe Rules. I have no doubt in my mind that sickness of an Advocate or commitment of an Advocate is another court, if backed by concrete reasons can amount to sufficient cause/good ground for failure to file written..." From the above, it is clear it is not enough for one to state they are sick they have to provide backing which in a case of sickness is medical chit. In the instance case the Appellant's counsel in convincing the district court attached a medical chit. However, the trial magistrate was not convinced. The second doubt cast by the learned magistrate is that the learned advocate who was ill to the extent already explained managed to go to the court to follow up on the same day; while she was given a day of bed rest. The learned magistrate was weary as to how she got the strength thus, cast doubt as regards the seriousness of the illness. This, I shall not belabour on since as the authorities cited above sickness is a condition which the bearer knows better. All the same what the Appellant needed to prove was that there was a sufficient cause for the absence that led to the dismissal of the appeal. She, seeking to rely on sickness as a reason attached a medical report, only that the said report does not tally with the facts she deposed in the Affidavit. Having failed to back her absence with concrete reason(s), the Appellant failed to provide sufficient cause. It is for that reason that I hold the first, third and fifth grounds of appeal are without merit. As to the legitimacy of the Ruling which is dated 09 October, 2024 however, the same was delivered on 10 September, 2024 making it a violation of Order XX Rule 7 of the CPC which is what the fourth ground of appeal pivots on. I have gone through the record. The Ruling and Drawn Order that is eCMS generated filed in the memorandum of appeal are dated 09 October,2024 and 08 October, 2024 respectively. The two are appearing in the digital case file with the 08 October, 2024. The Drawn Order states: "The matter was coming for ruling before Hon. E.A.Mwakaiinga-PRM this 10/09/2024 in the presence ofAdvocate for the Applicant, Applicant and Advocate for the Respondent" Further to the above the proceedings show that on 08 October, 2024 the magistrate entered the following into the record: "Court- the Ruling was delivered on 10/09/2024 but due to technical error it was published today" This means there was a technical error that led to the discrepancy in the date of delivery vis a i//sthe publication. In my view, this does not make the Ruling unlawful. The technical error could have been dealt with in a myriad of ways to avoid the discrepancies as regards the dates. The Appellant is not contravening that on 10 October, 2024 the Ruling was delivered in their presence. That it was from the learned magistrate's head or there was no Ruling is pure conjecture. The court record is that the Ruling was delivered on 10 September,2024. Court records have to be held with the sanctity they deserve as was held in the case of Halfan Sudi v. Abieza Chichil [1998] TLR 227. Having documented there was a technical error that led to the delay in publication. One of the consequences of the delay is distortion or discrepancy of the dates however, it does not invalidate the Ruling and Drawn Order. Thus, this ground also fails and is dismissed. I am therefore satisfied that the district court performed its judicial duty of going over the material it was provided with and came up with a decision. Consequently, the appeal is dismissed. Due to the origin of this appeal, I make no orders as to costs. It is so ordered. A.A. OMARI JUDGE 29/01/2025 Judgment dated and delivered on 29th January, 2025 in the presence of Apis Maigwa and Agness Uisso advocates for Appellant and the Respondent respectively. Vi * ’ A.A. OMARI JUDGE 29/01/2025 IN THE HIGH COURT OF TANZANIA (TEMEKE SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 26597 OF 2024 (Originating from Misc. Civil Application No. 7852 of2024 of District Court of Temeke at One Stop Judicial Centre) ZAINABU FADHILI BORI................................................... APPELLANT VERSUS SAID HUSSEIN MTITWA.............................................. RESPONDENT JUDGMENT Date of last order: 03/01/2025 Date of Judgment: 29/01/2025 OMARI, J. Zainab Fadhili Bori, the Appellant herein is aggrieved by the decision of the District Court of Temeke at the One Stop Judicial Centre Temeke in Misc. Civil Application No. 7852 of 2024. She has filed this appeal parading five grounds as follows: 1. That, the trial magistrate erred in law and fact by refusing to grant the Appellant's prayer of setting aside the dismissal order, finding that the Appellant has not advanced sufficient reason, while supporting the reason advanced by the Appellant for restoration. Hence creating a confusing decision. 2. That, the trial magistrate erred in law and fact by trying to edit the medical sick sheet, hence failing to understand what the doctor on the sick sheet meant. 3. That, the trial magistrate erred in law and fact by holding that counsel for the Appellant failed to state how long it took her to get strength to appear in court on the same day, hence doubting the sickness of the counsel. 4. That, the trail magistrate issued ruling and drawn order which are contrary to the provision of Order 20 Rule 7 of the Civil Procedure Code, Cap 33 R.E 2019, hence dispensing unlawful decision. 5. That, the trial magistrate erred in law and fact by disregarding the sufficient reason for restoration/setting aside dismissal order. On the strength of the above grounds the Appellant prays inter alia for this court to reverse the Ruling and Drawn Order of the district court and grant the Appellant's Application for setting aside the dismissal order. Said Hussein Mtitwa, the Respondent herein appeared to contest the Appeal. When the appeal was called for hearing the Appellant was represented by Apis Maigwa whereas the Respondent had the services of Agness Uisso, both are learned advocates. Submitting in support of the grounds of appeal, Ms. Maigwa began with a brief background of how the parties ended up in court, sought to abandon the second ground of appeal and to jointly submit on the first and third grounds of appeal as well as the fourth and fifth grounds of appeal. Arguing on the first and third grounds of appeal, Ms. Maigwa commenced with an elaboration that, what amounts to sufficient reason in law defined in Black's Law Dictionary as what is enough to substantiate something; while what is good cause is defined as substantial reason that affords a legal excuse. She went on to state that while the law is silent on what can prevent an advocate from attending a matter in a prescribed time, the same is provided for in case law and one of those reasons is sickness. Ms. Maigwa argued that the condition for using sickness as a reason is the production of proof that the person was truly sick at the material time. She cited the cases of Richard Mlagala & Others v. Aikael Minja & Others (Civil Application No. 160 of 2015) [2015] TZCA 544, Leonard Magesa v. M/S 01am T. Ltd (Civil Appeal No.117 of 2014) [2015] TZCA 101 and Cyprian John Mushi v. TPB Bank PLC & 2 Others (Land Appeal 305 of 2021) [2022] TZHCLandD 261 all of which recognize sickness as a good cause. To augment her point of view that the district court erred, she narrated what transpired on the material day the case was dismissed. She fell ill at around 0500HRS as she was preparing to go to court, she was sent and admitted to a health facility. When she regained strength, she went to court in the afternoon only to find the matter she was to attend was dismissed for want of prosecution. According to counsel, she immediately files an Application for restoration. Ms. Maigwa was adamant that she had failed to attend the hearing due to sickness, the district court in its Ruling agreed that sickness is a ground for a person who has failed to take an action in reasonable time and even cited the Court of Appeal decision of John David Kashekya v. the Attorney General, Civil Application No. 107 of 2012 and Richard Mipawa Manara v. FINCA TZ Limited and another, Land Appeal No.15 of 2021 which recognize sickness as a good cause. Yet, the learned magistrate dismissed the Application for restoration after raising doubt on the condition of the advocate. This, according to counsel caused confusion. She argued further that having produced the medical chit, the counsel had advanced sufficient medical grounds. She thus, urged this court to find that the advocate was prevented by good cause and accord the Appellant the right to be heard. On the remaining grounds of appeal, Ms. Maigwa averred that the record of the district court depicts that the Drawn Order is dated and signed on 08 October, 2024 and the Ruling is dated and signed on 09 October, 2024. This, according to counsel is contrary to Order XX Rule 7 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) which makes it unlawful to have that descripancy and more so because the Ruling was delivered on 10 September,2024 and not 08 or 09 October, 2024. Counsel opined that this casts a doubt on the existence of the Ruling at the time it was delivered. She concluded on her submission with prayers that the appeal be granted, the Ruling be revised and Civil Appeal No. 27511 of 2023 be restored so that the Appellant can be heard on merit. When it was her turn Ms. llisso took the floor and argued against the grounds of appeal. She commenced on the first and third grounds of appeal as were jointly submitted by the Appellant's counsel. Ms. Uisso explained that it is clear in the Ruling that the magistrate did not dispute that sickness is a ground rather she had doubts about the sickness thus, refrained to exercise powers to grant powers sought. Counsel went on to explain that the sick sheet attached to the Affidavit had a different ailment than what counsel had described in the Affidavit, thus, she relied on facts not in the Affidavit. She cited the case Maulid Mohamed Mafanya (Next Friend of Yusuf Kassim Yusuf) vs Mohamed Eidha Awadh & 5 Others (Misc. Land Application No. 768 of 2023) [2024] TZHCLandD 135 to augment her contention that the inconsistentinces created doubt. Concluding on on these two grounds she prayed that the appeal be dismissed since the appellant failed to act diligently in adducing sufficient cause. Ms. Uisso submitted on the fourth ground of appeal stating that the Appellant cited Order 20 in the memorandum of appeal which is a non-existent Order as the Orders in the CPC are in Roman numerals and not the Arabic numeral cited by the Appellant. Counsel then went on to state that the intended Order XX Rule 7 provides for Decrees and Judgment and not Ruling and Drawn Order. This, according to counsel means that the magistrate did not dispense an unlawful decision. She cited the case of Integrated Property Investment (T) Limited and Others v. The Company for Habitat and Housing in Africa (Shelter Afrique) (Civil Application No. 162 of 2015) [2016] TZCA 204 to reinforce her argument stating that if the substance of the Drawn Order complies to what is in the Ruling then they are not defective. She further submitted on the fifth ground of appeal stating that the Appellant failed to show good cause to convince the court to set aside the dismissal order. The facts of the illness in the Affidavit being different from the medical chit raised doubts and the magistrate being guided by Order IX Rule 3 of the CPC which requires an Application of that nature to be granted upon there being good cause being demonstrated. Ms. Uisso cited the case of Bahati Mussa Hamisi Mtopa v. Salum Rashid (Civil Application No. 112/7 of 2018) [2019] TZCA 69 which interprets good cause and went on to elucidate the Affidavit in support of the Application lacks that. She then argued that the counsel did not make any effort between 0500HRS and 0700HRS including informing the client if she did not have contact with opposing counsel. Ms. Uisso then concluded her submission with a call for the appeal to be dismissed for lack of merit as they failed to substantiate good cause for non- appearance. By way of a brief rejoinder Ms. Maigwa refuted Ms. Uisso's submission stating that the learned magistrate agreed with the sickness with doubt only being cast on the time she managed to go to court. She explained that being exempted from duty does not mean one is not supposed to work. Ms. Maigwa also went on to distinguish the cases cited stating they are different from what is in Order XX Rule 7 and insisted that the court erred. She concluded that the appeal be granted in the interest of justice as the matter involves children. I have examined the record of the lower court and considered the grounds of appeal and counsel's submission for and against of appeal and discerned that there is only one issue for the determination of this court; that is whether the appeal has merit. The question that needs answering is if the Appellant herein showed good cause and reasons for setting aside the dismissal order and restoration of Civil Appeal No. 27511 of 2023. I shall commence with the first, third and fifth grounds of appeal. On this I would like to address the doubts casted by the learned magistrate; first, the discrepancy in the illness and secondly the timing and manner of the advocates appearance. On the first one, it is undisputed that Civil Appeal No. 27511 of 2023 was dismissed on 3 April, 2024 for want of prosecution. Upon that realization the Appellant vide a Chamber Summons and Affidavit of one Apis Maigwa an advocate sought for the trial court to restore and set aside the dismissal order. Paragraph 4 of Ms. Maigwa's Affidavit contains averments that on the material date of the dismissal she fell sick as she was preparing to go to court. She described having "terrible" stomach pain and diarrhoea, which led to the loss of fluids thus, necessitating being sent to the health centre for first aid. As a result, she was admitted for some hours for treatment after having been diagnosed with "food poisoning." She annexed a medical sheet from the facility where she was treated. In Paragraph 5 of the Affidavit, Ms. Maigwa stated that she was prevented from attending the hearing by sufficient cause, that is sickness. This is so because she had no way of informing the court, the Respondent's advocate or his office as the matter was fixed for hearing at 0700HRS she had the case file and did not have the opposite counsel's mobile number. This, is in my view the crust of the matter; the essence of the question as to whether a good cause has been established. The material that the court was provided to work with is a sick sheet dated 03 April, 2024 which indicates the learned advocate was attended on 03 April,2024 because of abdominal discomfort and excused from duty for one day from the same date. The learned magistrate after considering the Affidavits and submission by both sides. Like me, she concerned herself with the question as to whether the Appellant had advanced good cause to convince this court to restore and set aside the dismissal order. In doing so she sought guidance in the case of John David Kashekya v. the attorney General (supra) where the Court of Appeal held that: "Sickness is a condition which is experienced by a person who is sick. It is not a shared experience. Except for children who are yet in a position to express their feelings, it is the sick person who can express his/her condition whether he/she has the strength to move, work and do whatever kind of work he is required to do." I should at this juncture state that the above observation describes sickness as a good or sufficient cause. And, what is at issue is not whether the learned advocate was ill. It is whether the sickness she averred in the Affidavit is what prevented her to attend the hearing on the prescribed date. In other words, what the learned magistrate also had issues with is the discrepancy in the Affidavit and submission by the learned advocate. The contents of the medical chit that was annexed to the Affidavit caused the learned trial magistrate to poke holes into the sickness and raised a doubt; as was in the case of Maulid Mohamed Mafanya (Next Friend of Yusuf Kassim Yusuf) vs Mohamed Eidha Awadh & 5 Others (supra) cited by the Respondent's counsel. The medical chit annexed had only "abdominal discomfort" yet the learned advocate stated in the Affidavit she was diagnosed with "food poison" (sic) something not in the medical chit something that the trial magistrate did not find plausible. This, in my opinion is why the learned magistrate also resorted to citing the Richard Mipawa Manara v. FINCA TZ Limited and another (supra) case wherein the Court of Appeal recognized sickness as a sufficient cause/ good ground for failure to file written submission however also observed as follows: "The reasons given for non-compliance of Rule 106(1) are that of the Applicant's Advocate, Mr. Ntonge was seriously ill and the other advocate Dr. Lamwai was already committed in other courts. The issues which stem from the above is whether the applicant's advocate has advanced good cause to warrant the calling in aid ofRule 106(19) ofthe Rules. I have no doubt in my mind that sickness of an Advocate or commitment of an Advocate is another court, if backed by concrete reasons can amount to sufficient cause/good ground for failure to file written..." From the above, it is clear it is not enough for one to state they are sick they have to provide backing which in a case of sickness is medical chit. In the instance case the Appellant's counsel in convincing the district court attached a medical chit. However, the trial magistrate was not convinced. The second doubt cast by the learned magistrate is that the learned advocate who was ill to the extent already explained managed to go to the court to follow up on the same day; while she was given a day of bed rest. The learned magistrate was weary as to how she got the strength thus, cast doubt as regards the seriousness of the illness. This, I shall not belabour on since as the authorities cited above sickness is a condition which the bearer knows better. All the same what the Appellant needed to prove was that there was a sufficient cause for the absence that led to the dismissal of the appeal. She, seeking to rely on sickness as a reason attached a medical report, only that the said report does not tally with the facts she deposed in the Affidavit. Having failed to back her absence with concrete reason(s), the Appellant failed to provide sufficient cause. It is for that reason that I hold the first, third and fifth grounds of appeal are without merit. As to the legitimacy of the Ruling which is dated 09 October, 2024 however, the same was delivered on 10 September, 2024 making it a violation of Order XX Rule 7 of the CPC which is what the fourth ground of appeal pivots on. I have gone through the record. The Ruling and Drawn Order that is eCMS generated filed in the memorandum of appeal are dated 09 October,2024 and 08 October, 2024 respectively. The two are appearing in the digital case file with the 08 October, 2024. The Drawn Order states: "The matter was coming for ruling before Hon. E.A.Mwakaiinga-PRM this 10/09/2024 in the presence ofAdvocate for the Applicant, Applicant and Advocate for the Respondent" Further to the above the proceedings show that on 08 October, 2024 the magistrate entered the following into the record: "Court- the Ruling was delivered on 10/09/2024 but due to technical error it was published today" This means there was a technical error that led to the discrepancy in the date of delivery vis a i//sthe publication. In my view, this does not make the Ruling unlawful. The technical error could have been dealt with in a myriad of ways to avoid the discrepancies as regards the dates. The Appellant is not contravening that on 10 October, 2024 the Ruling was delivered in their presence. That it was from the learned magistrate's head or there was no Ruling is pure conjecture. The court record is that the Ruling was delivered on 10 September,2024. Court records have to be held with the sanctity they deserve as was held in the case of Halfan Sudi v. Abieza Chichil [1998] TLR 227. Having documented there was a technical error that led to the delay in publication. One of the consequences of the delay is distortion or discrepancy of the dates however, it does not invalidate the Ruling and Drawn Order. Thus, this ground also fails and is dismissed. I am therefore satisfied that the district court performed its judicial duty of going over the material it was provided with and came up with a decision. Consequently, the appeal is dismissed. Due to the origin of this appeal, I make no orders as to costs. It is so ordered. A.A. OMARI JUDGE 29/01/2025 Judgment dated and delivered on 29th January, 2025 in the presence of Apis Maigwa and Agness Uisso advocates for Appellant and the Respondent respectively. A.A. OMARI JUDGE 29/01/2025