Ally Abasi Ally vs Najma Hassan Ally Kanji (Civil Appeal No. 463 of 2022) [2025] TZCA 975 (18 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. 3.A.. MASOUD, J.A. And AGATHO, 3.AJ CIVIL APPEAL NO. 463 OF 2022 ALLY ABASI A L L Y ............... .....................................................APPELLANT VERSUS NAJMA HASSAN ALLY KANJI ................................... ...... RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, Land Division at Dar es Salaam) (MakanLJ.) dated the 25th day of July, 2022 in Misc. Application No. 697 pf 2021 JUDGMENT OF THE COURT 1st August & 18th September, 2025 LILA, J.A.: This appeal arises from the High Court order in Misc. Application No. 697 of 2021 delivered on 25/7/2022 refusing to restore an application to set aside a dismissal order in Misc. Land Application No. 630 of 2020. That application was dismissed for want of prosecution following non- appearance of both the appellant and his advocate on 23/11/2022, a date scheduled for the hearing. The exparte judgment aggrieved the appellant and sought to vacate it but realized that he was late hence successfully lodged an application for extension of time to lodge an application for setting it aside. Granted

with extension of time, the applicant lodged Misc. Land Application No. 630 of 2020 which was, as stated above, dismissed for want of prosecution (non-appearance), the subject of this appeal. Six (6) grounds of appeal were fronted by the appellant seeking the Court to quash and set aside the dismissal order, restore the application and order the application be heard on merit. But, at the hearing of the appeal, Mr. Luguwa, learned counsel acting for the appellant dropped grounds 1, 2 and 3 of appeal. He remained with grounds 4 and 5 which he argued jointly and ground 6 which he argued separately. Learned counsel Mr. Barnabas Luguwa and Ms. Aziza Msangi, appeared before us for the hearing of the application to represent, respectively, the appellant and the respondent. The substance of Mr. Luguwa's arguments before us constituted of the averments in paragraphs 7, 8, 9 and 10 of the affidavit supporting the application to set aside the dismissal order in Misc. Land Application No. 697 of 2021 affirmed by Mr. Ally Abasi Ally, the appellant herein who was the applicant in Misc. Land Application No. 697 of 2021 which stated that: "6 . That on the 12th day o f November, 2021, Miscellaneous Land Application No. 630 o f2020 was scheduled to come for hearing on the 2 Jd

November, 2021 and I proposed the same to come at 2:00 p.m. as I was scheduled to appear before madam Maruma, Judge at 11:00 a.m. on the same date between Edward Gwimo & 97 Others vs The Attorney General & Tanzania Breweries and I had two other matters in the High Court of Tanzania which were to take off simultaneously at 9:00 a.m. these included Civil Reference No. 18 o f 2020 Dr. David Livingstone Memorial and Bagamoyo Zoological Society Park Limited vs DodsaI Hydrocarbons & Power (Tanzania PVT) Limited which was coming before madam Mgeyekwa, J and Misc. Land Application No. 591 of 2021 Nasoro Hanzuruni Shaha (the administrator o f the estates o f late one Shaha Mussa Hanzuruni) Joha Juma Ki/abuka vs DCB Commercial Bank PLC and Majembe Auction Mart which was coming before madam Mkapa, J. Copy o f the Ruling o f Maruma, J marked "D" is annexed and the same shall be read as part o f this affidavit. 7. That while in my office I received a summons calling us to attend the said application on the 22n d day o f November, 2021 hence I cancelled Land Application No. 630 o f2020 from the list o f cases to be heard on the 2 Jd November, 2021 and I recorded it in the cases which were scheduled for hearing on the 22n d

day o f November, 2021. A copy o f the summons marked "E"is annexed. 8. That we attended Court in obedience o f the Court summons and stayed in the waiting shade outside the Courtroom until midday when I became suspicious as time was going on without the application being called I instructed my clerk one RICHARD JOHN to follow up as I had other matters in other courts and he came back and informed me that the matter is not in the list o f the cased which are to be heard on the 22n d day o f November, 2021 but the same is scheduled to come for hearing on the 23d November, 2021 at 2:00 p.m. and I noted accordingly\ copies o f the pages o f my diary marked collectively n F"are annexed. 9. That soon after I was through with above enumerated matters on the fateful day I went to the High Court land division where I reached at 1:30 p.m., I stayed in the advocates'room where I hardly set down when I received a phone call from RICHARD JOHN KIMERU (my clerk) informing me that my case has been called and when I rushed in the chambers o f madam V . Makani, J, I beheld AZIZA MSANGI advocate and members o f the family o f NAJMA HASSAN ALL Y KANJI leaving the sits and the trialjudge informed me that the application has been dismissed for want o f prosecution hence this 4

application for an order seeking the restoration o f the same. 10. That the judgment is very contradictory as the respondent is not the owner o f the said adjacent plot and he has never stayed therein." These depositions were elaborated in the written submissions reflected at page 221 of the record of appeal to which Mr. Luguwa referred the court in the course of his arguments before us. The conclusion in the submissions was that the reason for failure to enter appearance on the scheduled date and time was due to confusion of the date and time. The relevant portion of the submission stated that: "That we appeared in court on the 11th day o f November, 2021 and the matter was proposed to come for hearing at 9:00 a.m. but the time was found to be inconvenient to me as I was scheduled to appear before Mruma, J in the matter o f Edward Gwimo & 97 Others vs The Attorney General & Tanzania Breweries at 11:00 a.m. and before Mgeyekwa, J in Civil Reference No. 18 o f 2020 Dr. David Livingstone Memorial and Bagamoyo Zoological Society Park Limited vs Dodsa / Hydrocarbons & Power (Tanzania PVT) Limited and before Mkapa, J in Misc. Land

Application No. 591 of 2021 between Nassor Hanzuruni Shaa vs Joha KUabuka. That due to the fact that my schedule was full up to 11:00 I proposed that the matter to come for hearing at 2:00 pm it is unfortunate that amongst the proposed time the time which was recorded by court was 11:00 am and I recorded 2:00 pm. On the 12th day o f November, 2021, the applicant was served with the Notice which was dated November, 2021 to appear at the High Court on the 22n d day o f November, 2021 hence we counselled the date in our diary and entered the said new date and time. A copy o f the said notice and copy o f the diary is annexture "E" to the affidavit. We attended court in obedience to the said summons but the case was not called that I instructed my clerk one Richard John Kimeru to follow up as I had other matters in other courts and he came back and informed me that the said matter is not listed among the cases which are scheduled for hearing on the 22n d day o f November, 2021 but it is coming on the 2 Jd November, 2021 at 2:00 pm I noted accordingly. See a copy o f the diary appended. That soon I was through with the enumerated matters above I went to the advocate's room and

when hardly set down my clerk rushed to me and informed that my case had been called so I went in the chamber o f the trial Judge only to meet Aziza Msangi the advocate for the respondent leaving the office as the matter was dismissed for want o f prosecution. I tried to plead with the Judge in vein. Madam Judge, The reason why I did not enter appearance was due to the said confusion o f date and time as I have explained above." Finally, the conclusion was that: "Madam Judge The reason why I did not enter appearance was due to the said confusion of date and time as I have explained above, "(emphasis added) Before us, Mr. Luguwa, opted to first argue ground six (6) of appeal. He submitted that the application for extension of time in Misc. Land application No. 716 of 2019 was granted on the basis that there was illegality in serving the appellant with the notice of hearing which resulted in the exparte judgment in respect of Land Case No. 161 of 2013. Following that, an application to set aside the exparte judgment, Miscellaneous Land Application No. 630 of 2020, was lodged but due to non-appearance of the appellant and or his advocate, it was dismissed for

want of prosecution, the subject of this appeal. Since the learned Judge who granted extension of time to lodge an application for setting aside the exparte judgment appreciated the fact that there was no proper service on the applicant, Mr. Luguwa contended, the illegality thereof constituted good cause for allowing the appeal and order restoration of the application to set aside the exparte judgment, Miscellaneous Land Application No. 630 of 2020. He fortified his argument with the Court's decision in the case of Jamal S. Mkumba and Abdallah Issa Namangu and 359 Others vs The Attorney General, Civil Application No. 240/01 of 2019 wherein the Court, borrowing a leaf from its principle set in its decisions in respect of extension of time that existence of an illegality is good cause for extending time, held that the same principle, that is existence of a point of law, constitute sufficient cause for the grant of the prayer for restoration. In respect of grounds four (4) and five (5) of appeal, after conceding that he appeared late in court, that is after the case was already dismissed, it was Mr. Luguwa's contention that he unsuccessfully pleaded to the learned Judge to restore the case which proves that he was not negligent and that had the learned Judge considered his plea, she would have not refused to restore the case citing as his authority, the 8

Court's decision in Zuberi Mussa vs Shinyanga Town Council, (Civil Application No. 3 of 2007) TZCA 63 (28 October 2009) and pages 18 and 19 of the Court's decision in Kidodi Sugar Estate and 5 Others vs Tanga Petroleum Co. Ltd, Civil Application No. 110 of 2009. He reminded the Court that existence of illegality was raised as a ground for restoration in paragraph 5 of the appellant's affidavit in support of the application found at page 172 and he ultimately sought for the Courts indulgence to restore and allow the dismissed case be heard inter-partes. For her part, Ms. Msangi first launched her attack in respect of Mr. Luguwa's last contention that the appellant alleged illegality in his affidavit. Quite disagreeing, she discounted the argument saying that no one paragraph in the alleged affidavit found at pages 171 to 173 raised the issue of illegality as a ground for applying for restoration of the dismissed case neither had Mr. Luguwa ably demonstrated any illegality in the exparte judgement issued by Nchimbi, J. The more so, she argued, no proceedings by Nchimbi, J. are in the record for the Court to make reference. Otherwise, she proceeded to argue, Mr. Luguwa ought to have pleaded in the grounds of appeal any illegality in the decision sought to be restored. She referred the Court to the requirements of Rule 93 (1) of the Tanzania Court of Appeal Rules, 2009 and pages 7 and 8 of the

decision in Senen Edmund Mponda vs Rupin J. Rajan, Civil Appeal No. 367 of 2022 (unreported). Due to such failure, she urged the Court, as did the learned Judge, not to consider the issue of illegality as the said paragraph five (5) of the appellant's affidavit had nothing but the chronology of events that happened. In opposition to Mr. Luguwa's arguments in respect of grounds four (4) and five (5), Ms. Msangi urged the Court to note that Mr. Luguwa conceded not being in court when the case was called on for hearing. In terms of the law, she pressed, Mr. luguwa had to give reasons or avail the court with good cause as to what prevented him from attending in court on time which he has not. She was opposed to the view that such non-appearance was out of a mere confusion hence not a serious mistake. She pressed that the law sets the remedy for non-appearance on the hearing date of the plaintiff as being to dismiss the case. In the circumstances, Ms. Msangi urged the Court to dismiss the appeal with costs. In his brief rejoinder submissions, Mr. Luguwa reiterated his arguments in-chief and added some few arguments. Mostly insisting on raising illegality as a ground for praying for restoration of the application to set aside the exparte judgment by Nchimbi, J, he argued that the same 10

is raised as aground of appeal in ground six (6) of appeal and was averred at paragraph five (5) of the appellant's affidavit. Its existence was, he argued, acknowledged by the learned Judge who granted extension of time. To do justice to the appellant, he beseeched the Court to allow the appeal and restore the application for setting aside the exparte judgment that was dismissed on 23/11/2022 by the learned Makani, J (as she then was). We have keenly considered the learned counsel for the parties' contending arguments and perused the record of appeal to satisfy ourselves with what exactly transpired. Like Ms. Msangi, in dealing with the points of contention, we shall commence our deliberation by addressing the issue of illegality, whether or not it was raised as a ground for seeking restoration of the dismissed application for restoration and whether or not its invocation was proper. For the former contention, as demonstrated above, Mr. Luguwa is of the firm view that it was raised as a ground for seeking restoration in paragraph 5 of the appellant's affidavit in support of the application found at page 172 but Ms. Msangi denied so. We entirely agree with Ms. Msangi. For illegality to form a ground of an application, the principle is that the alleged illegality should be vividly seen and clearly demonstrated in the chamber summons or in the li

supporting affidavit. We have perused the grounds of appeal, the chamber summons, the said paragraph 5 of the appellant's affidavit and the submission referred to by Mr. Luguwa. Having done so, we have noted that, apart from mentioning the word ' illegality under paragraph 5 of the affidavit, nowhere else was it demonstrated or even highlighted clearly as a ground for seeking restoration. We, in fact, need not belabour much on this argument. In the said paragraph the appellant (then applicant) stated that: "5. That, I applied for extension o f time to file an application to set aside the exparte judgment and upon noting that I was not dully served, time was extended for me to lodge the same within 14 days hence Miscellaneous Land application No. 630 o f 2020. A copy o f the ruling o f Z J. Mango Judge dated the 2 Jd day o f October, 2020 Marked "C" is annexed and the same shall be read as part o f this affidavit." By any stretch of imagination, the averment that" That, I applied for extension o f time to file an application to set aside the exparte judgment and upon noting that I was not dully served, time was extended... "above supports Ms. Msangi's contention that the phrase shows the steps or rather the chronology of events or acts taken by the appellant. It does 12

not raise or propose that improper service was being raised as a ground for seeking restoration. Even if, for the sake of discussion, we assume that it does, yet the principle is that the alleged illegality must be vivid in the application for restoration sought to be restored. We accordingly dismiss Mr. Luguwa's contention. This takes us to the second argument whether illegality could be raised as ground for seeking restoration of a dismissed case. In the second part, we have read our decision in Jamal S. Mkumba and Abdallah Issa Namangu and 359 Others vs The Attorney Genera! (supra). In that case, we, indeed, after citing our earlier decisions in The principal Secretary, Ministry of Defence and national Service vs Devram Valambhia [1992] T.L.R. 387 and Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women's Christian association of Tanzania, Civil application No. 2 of 2010 (unreported), from which we borrowed a leaf that if there is an illegality in the decision sought to be challenged, it is good cause for time to be extended and we held that in applications for restoration, a point of law of sufficient importance may constitute sufficient cause for the grant for restoration. Besides the case having been determined according to its material facts, even in

applications for extension of time, it is common knowledge that the principle applies where illegality referred to is that found in the decision sought to be challenged in which case, if extension of time is granted, the court will be able to address and resolve it. Ms. Msangi was correct on this point In the instant appeal, the alleged illegality is not in the decision in the application for setting aside which was dismissed for want of prosecution which the High Court will be able to address and resolve. The issue of improper service of summons related to the exparte judgment by Nchimbi, J, in Land Case No. 161 of 2013 and ended up with it being considered as good cause for the grant of extension of time to lodge the application for setting aside the exparte judgment. The principle set in the cited case of Jamal S. Mkumba and Abdallah Issa Namangu and 359 Others vs The Attorney General (supra) is therefore not relevant here and hence distinguishable. That said, it is obvious that Mr. Luguwa's reliance on that decision's principle was wrong. Now back to grounds 4 and 5. We have perused the proceedings of both 11/11/2021 and 23/11/2021, paragraphs 6, 7, 8, 9 and 10 of the appellant's affidavit in support of the application for restoration and the submissions thereof elaborating the grounds for seeking restoration. They provide, in sufficient details, what transpired on the material dates and 14

explanation of the grounds for seeking restoration. It is, as was rightly argued by Ms. Msangi, not in controversy that the appellant's advocate (Mr. Luguwa) was present in court on 11/11/2021 when the case was scheduled for hearing on 23/11/2021 at ll:00hrs and it is vivid that he did not appear in court when the case was called for hearing. Only Ms. Msangi appeared to represent the respondent. If we may express at once, Mr. Luguwa's arguments wholly fail to convince us that there is any justification to fault the learned Judge s reasoned ruling. Order IX rule 6 of the Civil Procedure Code, Cap 33 of our Laws (the CPC) govern restoration of a dismissed matter for non- appearance. It, in essence, requires the applicant to show sufficient cause to the satisfaction of the court for his non-appearance when the suit was called on for hearing and the burden to show sufficient cause rests on the applicant who must exhibit no element of inaction, laxity or negligence. (See the case of Zanzibar Shipping Corporation vs Mkunazini General Traders, Znz Civil Application No. 1 of 2012 (unreported) positively cited in Wasward Wilson Mapande vs First National Bank Tanzania Ltd, Civil Application No. 216/16 of 2017 (Both unreported). In the light of the clear provisions of the law, in the instant case, good or sufficient cause for non-appearance ought, ordinarily, to have 15

been advanced by the appellant or his advocate in the chamber summons or in the supporting affidavit to warrant the High Court exercise its discretionary mandate to set aside its dismissal order. The law as it stands now, required the appellant (then applicant) to avail the court with a material and acceptable account which prevented him and or his advocate from featuring in court on 23/11/2021 for hearing. According to the affidavital evidence and submissions thereof as well as Mr. Luguwa's arguments before us, the appellant and the learned advocate claimed that there was a confusion on his part of the time scheduled for hearing, that is at ll:00hrs recorded by the court and 02:00hrs he recorded in his diary as a result of which he appeared 02:00hrs at the time the case was already dismissed. His allegation that he had first proposed the case to come for hearing at 2:00 PM and recorded so in his diary but was later served with a summons to appear on 22/11/2021 was resolved when he sent his clerk one Richard John and informed him the correct date to be 23/11/2021 (See paragraph 8 of the affidavit by the appellant). The court record was there for perusal. It is unbelievable that the said clerk could only note the appropriate scheduled date but not time. We hasten to conclude and hold that both the appellant and the learned counsel Mr. Luguwa were, in fact, negligent and they have to blame themselves for the confusion, if true. The court proceedings are clear that the case was

scheduled for hearing on 23/11/2021 at ll:00hrs. It being dismissed at 13:35 Hrs, according to the court record or around 1:30 PM according to information Mr. Luguwa got from Richard John, for want of prosecution following absence of Mr. Luguwa or the applicant was therefore proper. Actually, the appellant and/or his advocate were accorded more time to ensure they appear in court which opportunity was not properly utilized. There was a further contention from Mr. Luguwa that the learned Judge was tied up with technicality rather than justice. We think this need not take much of our time as it is common ground that justice is according to law and court orders must always be respected for the smooth dispensation of justice. In Laemthong Rice Co. Ltd vs Principal Secretary Ministry of Finance Zanzibar, Civil Appeal No. 259 of 2019 (unreported) we reiterated this cherished legal principle in these words: " What was stated by the Court in Victoria Real Estate Development Limited (supra), on the duty o f the parties and even the courts to respect court orders, was recentiy restated in Karori Chogoro vs Waitihache Merengo, Civil Appeal No. 164 o f 2018 (unreported)."

All said, we see no justification to fault the learned Judge for dismissing the application for restoration as no good reason for failure to appear on the hearing date was advanced by the appellant. The appeal is therefore without merit and we hereby dismiss it with costs. DATED at DODOMA this 15th day of September, 2025. The Judgment delivered this 18th day of September, 2025 in the presence of Mr. Barnaba Luguwa, learned counsel for the Appellant, Ms. Aziza Msangi, learned counsel for the Respondent via virtual Court and Christina Mwanandeje, Court Clerk; is hereby certified as a true copy of the original. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL 18