MUNGWE JAPHET

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELENEOUS CIVIL APPLICATION NO. 37 OF 2023 (C/F PC Civil Appeal No. 16 of 2023) MUNGWE JAPHET.............................................................APPELLANT VERSUS SUSAN E. SHESHA....................................................... RESPONDENT RULING Last order: 27/08/2024 Judgment: 27/09/2024 MASABO, J.:- Mungwe Japhet, the applicant herein, was successfully sued by the respondent in Civil Case No. 90 of 2022 before the Primary Court for Singida district at Utemini for breach of contract. Aggrieved, he appealed to Singida District Court vide Civil Appeal No.29 of 2023. The lucky was not on his side. He lost the appeal. Aggrieved further, he filed a second appeal before this court vide PC Civil Appeal No. 16 of 2023. The appeal ended barred after it was dismissed on 8th June 2023 for want of prosecution. Hence, this application vide which the applicant is beseeching this court to set aside its dismissal order and restore his appeal. The application is supported by I an affidavit deposed by Mugwe Japhet, the applicant herein. The respondent opposed the application by filing counter affidavit deponed by Leornard Mwanamonga Haule, identified as the respondent's counsel. Page 1 of 7 Hearing of application proceeded by way of written submissions. Both parties had representation. Submissions by the applicant were drawn and filed by Mr. Hemedi Kulungu, learned counsel whilst those of the respondent were drawn and filed by Mr. Leornard Haule, learned counsel. In support of the application, Mr. Kulungu submitted that it is a settled law that, an applicant seeking to set aside an order dismissing the suit for want of prosecution has to demonstrate sufficient reasons for non -appearance when the suit was called for hearing as provided for under Order IX, Rule 6(1) of the Civil Procedure Code R.E 2019 and stated in the case of Sadru Mangasi vs Abdul Aziz Lalani & Others, Misc. Commercial Application No 126 of 2016 [2016] TZHCComD 34 TanzLII. In the present case, the applicant has demonstrated a good reason as he has stated that, his non appearance when the appeal came for hearing was due to sickness. He was suffering from Traumatic Fracture of Distal Right Radius and he had to undergo surgical intervention by planting the fractured bone. Due to the said disorder, he was admitted at Haydom Lutheran Hospital for three weeks from 27th January 2023 and to 18th February 2023 when he was discharged. After being discharged, he was assigned to attend the hospital for further follow ups and checkups while his bone was healing. He attached to his affidavit a copy of his medical certificate as evidence of his sickness. Mr. Kulungu concluded by arguing that, this court should find the reason above sufficient to warrant the restoration of the dismissed appeal. In fortification, he cited the case of John Daud Kashekya vs. The Attorney General, Civil Application No 107 of 2012 (CAT-Unreported) and prayed that the application be allowed. Page 2 of 7 In reply, Mr. Hauie opposed the application and adopted the counter affidavit to form part of his submission. He then submitted that the applicant has never brought any scientific or medical evidence to substantiate that he was suffering from a Traumatic Fracture of the Distal Right Radius and that he had a surgical intervention. There is also no evidence that she was admitted at Hydom Lutheran Hospital from 27th Jan 2023 to 18th Feb 2023. He argued that, since the affidavit is a substitute for oral evidence, the applicant was duty bound to attach/annex all documents intended to support his allegations in the affidavit. He could have attached such documents as X-ray pictures and laboratory test results to prove what type of diseases he was diagnosed with and the treatment thereto and a sick sheet to prove that the patient was indeed hospitalized. He added that such documents must contain the patient's name, age and date, to prove that they indeed belong to her but the same were not attached. The omission, it was argued, amounts to failure to prove his application. It was submitted further that assuming that the applicant was admitted on 27th January 2023 and discharged on 18th February 2024 as alleged, the applicant had to account for the time during which he was not in the hospital considering that the appeal was dismissed in June 2023 but he did not. In the foregoing and there being no proof that the applicant was attending the hospital on these dates, it shows that he negligently failed to enter appearance without justifiable cause. He added that had the applicant failed to appear due to sickness, he could have informed the court by writing a letter or in the alternative, sent someone to report on his ailment but this was also not done. In conclusion, Mr. Hauie submitted that the application Page 3 of 7 is an afterthought and without merit. Thus, it should be dismissed. He also distinguished the cited cases by the applicant. I have considered the content of the affidavit, the counter affidavit as well as the submissions by both parties. This being an application for restoration of an appeal dismissed owing to the applicant’s nonappearance on the date of hearing, I will stand guided by Order XXXIX Rule 19 of the Civil Procedure Code, Cap 33 R.E 2019 which states that: 19. 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. [the emphasis is mine] As per this provision and as correctly argued by Mr. Haule, the applicant seeking for restoration of an appeal dismissed for default appearance on the date of the hearing must demonstrate, to the satisfaction of the court, that he was prevented from entering appearance by a sufficient cause. Therefore, the sole issue for determination in this application is whether the applicant's non-appearance on the date of the hearing was due to a sufficient cause. The sufficient cause warranting the restoration is not universally defined. It is a relative term dependent upon the peculiar circumstances of each case Page 4 of 7 (see the case of Mwanza Director of New Refrigeration Co- Ltd vs. Mwanza Manager TANESCO [2006] TLR 329). As it could be discerned from the affidavit and submission in support of the application, the sole ground that inhibited the applicant from entering appearance in court on the date set for a hearing of his appeal is sickness. Mr. Kulungu has passionately convinced this court to find that the applicants non appearance was due to his sickness which is explicable and excusable as stated in the case of John David Kashekya vs. The Attorney General, (supra). Indeed, I agree with him that sickness suffices as a good cause for restoration of the appeal. However, as correctly submitted by Mr. Haule, for sickness to stand as a good cause, it has to be demonstrated that the applicant was indeed sick and that it was the ailment that prevented him from entering appearance. The Court of Appeal underlined so in the case of Nyanza Roads Works Limited vs Giovanni Guidon Civil Appeal No. 75 of 2020 [2021] TZCA 396 TanzLII in which it was invited to determine whether sickness is a sufficient ground for extension of time. While cementing its position in the case of John David Kashekya (supra), it held that: We think the learned advocate for the respondent's reference to John David Kashekya vs Attorney General (supra) can only be relevant where sickness is the sole reason for the delay and properly explained.(Emphasis supplied) Therefore, in the present case, the sickness which is the sole ground advanced by the applicant had to be properly explained. The duty to properly Page 5 of 7 explain the sickness exclusively rested on the applicant and, as argued by Mr. Haule, he had to do so in his affidavit which is a substitute of oral evidence. Did he discharge it? In the affidavit bracing the application and the submission by Mr. Kulungu, it has been demonstrated that the applicant was hospitalized at Haydom Lutheran Hospital on 27th January 2023 and he was discharged on 18th February 2023. A letter from Haydom Lutheran Hospital written "to whom it may concern" was appended to the affidavit in substantiation. It states that the applicant was indeed hospitalized on the dates above for surgery to fix a traumatic fracture of his distal right radius by planting the fractured bone. After being discharged, he had to attend the clinic as an outpatient in March and April. Much as I entirely agree with Mr. Haule that it would have been prudent for the applicant to present hospital admission and discharge forms in substantiation of his assertion as to sickness and hospitalization, I have no reason to doubt the letter. Thus, I find it to be a sufficient proof that the applicant was indeed hospitalized. Accordingly, the duration of hospitalization and the moths of March and April during which the applicant was attending the clinic, is excused. The record shows and as correctly submitted by Mr. Haule, that the appeal sought to be restorated was dismissed neither during the time of hospitalization nor in the two months during which the applicant was Page 6 of 7 attending clinics. It was dismissed on 8th June 2023. I observed while perusing the record that, before being dismissed, the appeal was scheduled for hearing on 4th May 2023 on which date the applicant was absent. The hearing was rescheduled to 8th June 2023, the applicant was again not in attendance hence the dismissal of the application. No reason or explanation has been advanced as to why the applicant defaulted appearance on these two dates. The affidavit and its attachments are silent and so is Mr. Kulungu's submission. It is presumed from this silence that the default appearance on the date the appeal was set for hearing on 8/6/2023 was not with a sufficient cause. That said and done, the application fails as the applicant has miserably failed to demonstrate a sufficient cause for non-appearance on the date the appeal was scheduled for hearing. Consequently, it is dismissed with costs. DATED and DELIVERED at Dodoma this 27th day of September 2024 J. L. MASABO JUDGE Page 7 of 7