KATABARO 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA MISC. LAND APPLICATION NO. 26936 OF 2024 (Arising from Land Appeal No. 67 of2023 High Court of Tanzania at Bukoba; Originating from Land Application No. 1 of2021 the District Land and Housing Tribunal for Muieba) LEONIDAS KATABARO........................................................... APPLICANT

VERSUS FELIX JACOB (administrator of the estate of late Julian Jacob).....1st RESPONDENT MALISELI KATABARO..... ..................................................... 2nd RESPONDENT GEORGINA JULIAN............................................................... 3rd RESPONDENT ARODIA JULIAN..................................................................... 4th RESPONDENT BIBIANA JULIAN.................................................................... 5th RESPONDENT ANISIA JULIAN...................................................................... 6th RESPONDENT

RULING 12th and 21st March, 2025 BANZL J.: The applicant has filed this application seeking re-admission of Land Appeal No. 67 of 2023 which was dismissed by this Court on 21/10/2024 for want of prosecution. The application was brought under Order XXXIX Rule 19 of the Civil Procedure Code [Cap.33 R.E. 2019] ("the CPC") and supported by the affidavit of the applicant. The respondents through their joint counter affidavit, opposed the application. The records reveal that, in September 2023, the applicant/appellant being dissatisfied with the decision of the District Land and Housing Tribunal for Muieba, filed Land Appeal No. 67 of 2023. In that appeal, the appellant Page 1 of 6 was represented by Mr. Ibrahim Mswadick, learned Advocate. The records further reveal that, on 21/10/2024 when the appeal was called for hearing, neither the appellant nor his advocate appeared in Court and upon a prayer by the respondents, the appeal was dismissed with costs for want of prosecution. Following such dismissal, on 23/10/2024, the applicant instituted this application with a prayer of setting aside the dismissal order for purpose of restoration of the appeal so that it may be heard on merit. During the hearing of the application, the applicant was represented by Mr. Ibrahim Mswadick, learned counsel while the respondents appeared in person, unrepresented. Mr. Mswadick began his submission by

adopting the affidavit of the applicant with its annexures to form part of his submission. Explaining further the reason for non-appearance, he submitted that, prior to the hearing date, the applicant informed him that, he was in Dar es Salaam nursing his sibling Kilianus Katabaro and he instructed him to proceed with hearing in his absence. However, on the date of hearing, Mr. Mswadick failed to appear because he was sick and attended at St. Therese hospital where he was diagnosed with malaria, headache, eye problem and fever. He substantiated his claim by attaching his affidavit and medical chits. Relying on the case of Raphael K. Magongo and Another v. Kishoju Village Executive Page 2 of 6 Council and Others (Misc. Land Application 86 of 2023) [2024] TZHC 1269 (15 March 2024), he urged this court to allow the application as sickness is amongst the grounds for re-admission of the appeal. On their side, all respondent contended that, the applicant and his advocate are lying because, the applicant was not in Dar es Salaam and the alleged sick sibling was also not in Dar es Salaam but rather, he was in Geita healthy and sound. They added that, the applicant's advocate was also not sick because, on that date, he arrived late in court after being phoned several times by court clerk without success. In that regard, they prayed for the application to be dismissed with costs for want

of merit. In his short rejoinder, Mr. Mswadick insisted that, they did not lie as the applicant was in Dar es Salaam and he failed to appear because of his sickness as proved by the attached medical chits. He added that, the respondents did not attach anything to counter his claim and neither did they attach the affidavit of the clerk to substantiate their claim. Thus, he reiterated his prayer for the application to be granted. Having considered the submissions of parties and the available records, the issue for determination is whether the applicant has established Page 3 of 6 sufficient cause which prevented him from appearing in court on the date of hearing. Order XXXIX Rule 19 of the CPC provides that: " Where an appeal is dismissed under sub-rule (2), of rule 11 or rule 17 or rule 18, the appellant may apply to the Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re­ admit the appeal on such terms as to costs or otherwise as it thinks fit." It is apparent from the cited provisions of the law that, this Court is vested with discretion to re-admit the appeal which was dismissed for non- appearance of the appellant if it is satisfied that, the appellant was prevented by any sufficient cause from

appearing when the appeal was called for hearing. In the matter at hand, according to paragraph 6 of his affidavit, the applicant claimed that, on the date of hearing, he was in Dar es Salaam nursing his sibling and instructed his advocate to proceed in his absence. Unfortunately, his advocate failed to appear because he was sick. The fact about sickness of his advocate is supported by advocate's affidavit and medical chits. It is common knowledge that, sickness is not the choice of human being, and when it strikes, no one can be blamed. In the case of Page 4 of 6 Emmanuel R. Maira vs The District Executive Director Bunda District Council (Civil Application No. 66 of 2010) [2010] TZCA 87 (13 August 2010) TanzLII, it was stated that: "Health matters, in most cases, are not the choice of a human being; cannot be shelved and nor can anyone be held to blame when they strike." As alluded above, the advocate for the applicant had instructions from his client to proceed with hearing in his absence, because, according to paragraph 6 of his affidavit, he was in Dar es Salaam attending his sick sibling. Apart from that, his advocate attached medical chits and affidavit proving his sickness. The medical chits indicates that, on the date of hearing, the said advocate was attended at St. Therese Health Centre. Although the respondents insisted that, the applicant and his counsel were lying,

in their joint counter affidavit, apart from demanding proof from the applicant, they did not state anything about the applicant being lying. Likewise, they did not state anything about the alleged call that was made by court clerk and neither did they attach the affidavit of the said clerk. It is common knowledge that, affidavit is the substitute of oral testimony and since their counter affidavit is silent, their claim of lying and a call from court clerk cannot be considered as it is a submission rather than evidence. In that regard, I find Page 5 of 6 nothing to doubt the sickness of the advocate for the applicant who was instructed to proceed with hearing in the absence of the applicant/appellant. That being said, I am satisfied that, the applicant and his advocate have demonstrated sufficient cause that prevented them from appearing in court on 21/10/2024 when the appeal was scheduled for hearing. Thus, I grant the application by setting aside the dismissal order dated 21/10/2024 and re-admit Land Appeal No. 67 of 2023. Since parties are relatives, I make no order as to costs. Order accordingly. I. K. BANZI

JUDGE 21/03/2025 Delivered this 21st day of March, 2025 in the presence of Mr. Ibrahim Mswadick, learned counsel for the applicant who is also present, all respondents, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Grenica Protas, RMA. _ I. K. BANZI

JUDGE 21/03/2025 Page 6 of 6