Said Msangi vs Afriscan Group (T) Limited (Civil Application No. 152/16/2020) [2025] TZCA 887 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 152/16/2020 SAID MSANGI.......................................................................... APPLICANT VERSUS AFRISCAN GROUP (T) LIMITED ......................................... RESPONDENT (Application to set aside dismissal order in respect of Civil Application No. 361/16/2019 dated 29th April 2020 from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) fSehel. J.l dated the 31st day of August 2018 in Commercial Case No. 87 of 2013 RULING 26th & 27th August 2025 NPIKA. J.A.: The applicant, Said Msangi, seeks the restoration of Civil Application No. 361/16/2019, which I dismissed on 29th April 2020 pursuant to rule 63 (1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules") due to his non-appearance during the hearing. This motion is based on rule 63 (3) of the Rules. The application is based on four supporting affidavits. The initial deposition was made by Mr. Samson Mbamba, the applicant's learned counsel. The crux of the matter is that while he was present in the

courthouse at approximately 8:25 a.m. on 29th April 2020 awaiting the application's call, he was informed by Mr. January Kambamwene, a fellow advocate, that Mr. Joseph Rutabingwa, the learned counsel for the respondent, had just conveyed that the matter had been called for hearing and subsequently dismissed due to the applicant's non-appearance. The revelation occurred in the presence of five other advocates: Mr. Edward Chuwa, Mr. Jailos Mpoki Josephat, Ms. Anna Lugendo, Mr. Charles Tumaini, and Mr. Mohamed Majaliwa. He claimed that the non- appearance was attributable to the court clerk's failure to announce the case audibly. Secondly, five learned counsel — Messrs. Karribwamwene, Chuwa, Josephat and Tumaini, and Ms. Lugendo — submitted a combined affidavit supporting Mr. Mbamba's assertion that the clerk never called the application. The applicant's account is articulated in his affidavit. Upon his arrival at the courthouse on the fateful day at approximately 8:20 a.m., a front desk officer called Ramadhani Shebuge, instructed him to await the clerk's call regarding his matter. Approximately fifteen minutes later, he observed Mr. Rutabingwa exiting the courthouse, at which point he discovered that the application had been dismissed due to his non-appearance. The final

affidavit pertains to Ramadhani Shebuge. His account aligns with that of the applicant. The respondent vehemently opposed the application. In this context, it submitted three distinct affidavits sworn by Mr. Rutabingwa, Mr. Julius Kilimba - the court clerk, and Mr. Petro Musimwa - a Legal Officer affiliated with Mr. Rutabingwa's law firm. Mr. Kilimba was particularly adamant that he called the application for the hearing around 8:30 a.m. and that neither the applicant nor his counsel was present. Mr. Mbamba has based the motion on two grounds: first, that the applicant and him as his counsel were present at the courthouse on the designated date and at the time appointed in the notice of hearing, yet the application was not called for hearing by the court clerk, preventing their appearance before the court when the motion was dismissed. Secondly, the dismissal decision for non-appearance was issued without acknowledging that the applicant, having submitted written arguments in support of the application, should have been regarded as having appeared and pursued the matter. During the hearing of this action, the learned counsel for the parties engaged in a contentious debate, grounded in the conflicting affidavits, regarding whether the court clerk summoned the application for hearing

on the designated day. I need not necessarily resolve that issue, as I will soon illustrate. I am convinced that the stipulation of rule 63 (1) of the Rules, which led to the dismissal of the application due to the applicant's non-appearance, must be interpreted considering the imperious provisions of rule 106 (12) of the Rules. The latter rule states that an applicant who has submitted written arguments in support of the motion but fails to appear at the scheduled hearing will be considered to have pursued the application based on the written submissions on record. Indeed, rule 63 (1) of the Rules states the following: "Where on any day fixed the hearing o f an application the applicant does not appear, the application may be dismissed, unless the Court sees fit to adjourn the hearing." Both parties concur that the aforementioned provisions confer upon this Court the power to dismiss the application if the applicant fails to appear at the appointed hearing, unless it finds it appropriate to adjourn the hearing. Mr. Rutabingwa contended that rule 63 (1) of the Rules is a detached provision, not subject to rule 106 (12) of the Rules. He posited that the Court can exercise its authority rule 63 (1) of the Rules without limitation. Mr. Mbamba contended otherwise.

In acknowledgement that the application may be presented for hearing subsequent to the filing of written submissions by the parties, the Rules stipulate in rule 106 (12) that: "(12) Where an appeal or application is caiied on for hearing and written submissions have been duly filed and- (a) neither party nor their advocates appear to present oral arguments; or (b) either party or his advocate appears to present oral arguments, the appeal [or application], shall be treated as having been argued and shall be considered as such: Provided that a party or his advocate who appears, shall be afforded an opportunity to present oral argument" It is inferable from the conventional interpretation of the above stipulation that, in the present context, if an application is scheduled for hearing and the applicant, having submitted written arguments in support, fails to appear, the application "shall be treated as having been argued and shall be considered as such. "Consequently, it is reasonable to conclude that under these circumstances, the defaulting applicant would not be considered to have failed to appear, but rather would be

seen as having pursued his application based on the written submissions on file. To substantiate this argument, I would also refer to rule 112 (4) of the Rules, which addresses a scenario in which a party fails to appear at the hearing of an appeal after submitting written arguments for or against the appeal. This provision explicitly states that such party "shall be deemed to have appeared." It is evident that prior to ordering a dismissal for non-appearance under rule 63 (1) of the Rules, the Court must consider, in accordance with rule 106 (12) of the Rules, whether the defaulting applicant has submitted written submissions in support of the application. Consequently, the discretion conferred by rule 63 (1) of the Rules is exercisable subject to the provisions of rule 106 (12) of the Rules. Mr. Rutabingwa contended that an application of this nature may only be granted if, pursuant to rule 63 (3) of the Rules, the defaulting applicant demonstrates that a substantial cause impeded his appearance when the application was scheduled for hearing. The provision states the following: "Where an application has been dismissed under sub-rule (1) or allowed under sub-rule (2), the party in whose absence the application was determined may apply to the Court to restore the application for hearing or to re-hear it, as the case

may be, if he can show that he was prevented by any sufficient cause from appearing when the application was called on for hearing. '"[Emphasis added] I interpret Mr. Rutabingwa's response as a critique of the applicant's plea, asserting that, having properly submitted written arguments in favour of the application, he should be considered to have pursued the application. To Mr. Rutabingwa, that submission does not establish any sufficient cause for his non-appearance at the hearing under rule 63 (3), hence it should be rejected. I respectfully disagree with Mr. Rutabingwa. In my opinion, it would be irrational and unwise to apply rule 63 (3) literally while disregarding its intent. I would interpret it broadly to encompass not only a rationale for the applicant's non-appearance but also an elucidation by the applicant, who, despite failing to appear, had properly lodged the requisite written submissions. However, in dismissing the application, the Court neglected to acknowledge these submissions as a legal indication that the applicant not only participated in the hearing in a legal sense but also presented the case based on the documented arguments. Consequently, I grant the application as I find that there is adequate justification to vacate my order dated 29th April 2020 and to restore Civil

Application No. 361/16/2019. Therefore, I direct that the application be scheduled for a hearing on a date to be determined and communicated by the Court's Registrar. Costs shall be contingent upon the result of the aforesaid application. DATED at DODOMA this 27th day of August, 2025. The Ruling delivered virtually this 27th day of August, 2025 in the presence of Ms. Aziza Msangi, learned counsel for the Applicant and Mr. Evodius Rutabingwa, learned counsel for the Respondent, is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL 8