fatuma juma ivanga vs ramadhani shabani 2021 tzhc 12580 13 december 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF DODOMA (DODOMA DISTRICT REGISTRY) AT DODOMA MISCELLANEOUS CIVIL APPLICATION NO 13 OF 2021 (Arising from Probate Appeal No. 6/2020 of the High Court of Tanzania at Dodoma and Originating from Misc. Probate Application No. 2/2020 and Probate Cause No. 28/2019 of Utemini Primary Court at Singida) FATUMA JUMA IVANGA.............................................................. APPLICANT VERSUS RAMADHANI SHABANI............................................................... RESPONDENT RULING 30/11/2021 & 13/12/2021 KAGOMBA, J FATUMA JUMA IVANGA ("the Applicant") has filed a chamber summons under rule 17 of the Civil Procedure (Appeal in Procedure (Sic) Originating in Primary Courts) Rules, GN No.312 of 1964 and any other enabling provision of the law, praying the Court to restore an appeal that was dismissed on 23/3/2021 for want of prosecution. Her ultimate aim is to challenge the decision made by Singida District Court (Hon Kisoka, RM) on 14/9/2021 in Civil Appeal No 17 of 2020. The Applicant has also sought any other order (s) that this Court may deem fit to grant as well as costs of this application to be borne by the Respondent. The Application is supported by affidavit of the Applicant who has stated therein that on 1/10/2020 she lodged a Probate Appeal No. 6 of 2020 before this Court. That, on the date set hearing which was 23/3/2021, both parties were absent, hence the Court dismissed the Appeal for want of prosecution. The Applicant has stated further that she failed to enter appearance on that date because she was pregnant and she was not feeling well. That, she delivered her baby on 1/11/2020 and thereafter she was taking care of her infant which impeded her travel from her residence in Singida to Dodoma to follow up on the case. That, she came to learn later, after recovering from prenatal and natal period, that her appeal was dismissed for want of prosecution. The Applicant averred further that in the appeal, was intended to rescue children of her deceased sister who are suffering greatly and had been chased from their father's house. That, the Respondent, who was appointed as the administrator of their father's estate was not administering the deceased's estate as required by law. She, therefore, told the Court that if the Appeal would be restored, she stood overwhelming chance of success. The Affidavit does not state who the deceased is, neither does it disclose who the Applicant is in relation to the children whose rights she is fighting for. RAMADHANI SHABANI, ("the Respondent") filed his counter affidavit opposing the application. He stated that he was not aware of any date scheduled by this Court in respect of the Applicant's appeal that was dismissed. He therefore disputed the content of paragraph 6 of the affidavit, regarding the dismissal of the Appeal on 23/3/2021. The Respondent asserted that the Applicant's failure to appear was deliberate as she had never appeared in Court even in a single mention. It was the Respondent's further contention that if the Applicant intended to prosecute the alleged Appeal, she ought to have sent her relatives and or to inform the Court by way of a letter that she was pregnant and thus unable to prosecute the Appeal. The Respondent further contended that the Applicant had not stated, in her affidavit, if she had any complication that was associated with her pregnancy. The Respondent further challenged the contents of paragraph 7 of the Applicant's affidavit and stressed that according to the Court proceedings from the first date, that is, 10/12/2020 when the Appeal was scheduled for mention to the second scheduled date, that is 22/3/2021, there was a period of (4) four months within which the Applicant should have made follow up either herself, her relatives or by writing a letter to the Court if she wanted to see justice done. The Respondent further disputed the contents of paragraph 8 and 9 of the affidavits of the Applicant. He argued that accordingly to the Applicant's affidavit she delivered her baby on 1/11/2020, but it took her good six months to follow up on restoration of her Appeal on 22/4/2021, which was a long and unreasonable delay, in view of the fact that the Applicant has not stated if she encountered any complication before delivery or any problem with the baby after birth. The Respondent further contested the content of paragraph 10 of the Applicant's affidavit and averred that the deceased's children were living with the Respondent as their grandfather and dubbed as "dubious" the allegation that the children were chased from their father's house. He stated further that the Appellant, who was a mere sister-in-law to the deceased, is living with one child of the deceased and she was using that child as the means to secure administration of the deceased's estate to the extent that she even strived and managed to change the name of the said child. The Respondent made further contentions, including that the Applicant's delay to prosecute her appeal was on purpose as she has not reasonably accounted for six-month delay and that the Applicant stands no chance to win the alleged Appeal. He said the alleged estate has already been distributed by the Respondent to the rightful heirs of the deceased. On the date set for hearing both parties appeared in person without legal representations. They prayed the Court to adopt the contents of their respective affidavit and counter affidavit as their submission in this matter. Having considered the parties averments in their affidavit's the main issue is whether the Applicant has adduced sufficient reason for this Court to restore her Appeal which was dismissed by Hon L. Mansoor, J on 23/3/2021. As stated in the Applicant's affidavit, the reason for her non appearance on 23/3/2021 before Hon Mansoor, J was pregnancy, as simple as that. The Applicant has not told this Court if she was sick or had other challenges arising from her pregnancy. Furthermore, the Applicant had not submitted any proof of pregnancy and/or child delivery from any hospital. As correctly argued by the Respondent the Applicant has not justified the six month's delay to make follow up on her dismissed Appeal from 1/11/2020 when she alleged to have delivered a baby, to 22/4/2021, when she came to file this application. It is apparent from the way this application is presented, that what the Applicant has submitted in her affidavit falls short of being sufficient cause for restoration of her Appeal. She has provided no proof at all to prove the grounds she wanted this Court to rely upon. For the stated reason, therefore, I find no merit in this application and I accordingly dismiss it. No order as to costs. It is ordered accordingly. Dated at Dodoma this 13th day of December, 2021.