steven lutevele vs chuka john paul another 2023 tzhclandd 16817 28 august 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.CIVIL APPLICATION NO.148 OF 2023 (Arising from Land Appeal no.257/2022 dismissed on 22/2/2023) BETWEEN STEVEN LUTEVELE.................................................... APPLICANT /APPELANT VERSUS CHUKA JOHN PAUL........................................................... 1st RESPONDENT AZIZA MOHAMED BAKARI................................................ 2nd RESPONDENT RULING Date of last 0rder:03/08/2023 Date of Ruling: 28/08/2023 K.D. MHINA, J. By a chamber summons taken under Order XXXIX Rule 19 and Section 95 of the Civil Procedure Code, Cap 33 R: E 2019 ("the CPC"), the applicant, Steven Lutevele instituted this application against the respondents. The applicant, inter-alia, is seeking the following orders: - /' That this Court may be pleased to re admit Land Appeal no 257 of 2022 dismissed on 22/2/2023 for default (non- appearance) ii. Costs to follow event Hi. Any other order this court may deems fit to grant i The grounds for the application were expounded in the affidavit, which Steven Lutevele the applicant, swore in support of the application. He raised two grounds; One, the death of his houseboy and Two, that his advocate informed him that she could not attend to the court since her daughter was arrested and was at the Oyster bay Police Station. In response to the application, the respondents countered it through their joint affidavit in reply sworn by both respondents. The application was argued by way of written submissions whereas, the applicant filled his submission in chief through Ms. Neema Massame learned advocate. The respondents did not file their submissions despite duly notified and served. To support her submission Ms. Massame stated that on the material date i.e 22/02/2023, the applicant had earlier informed by his advocate that the advocate could not attend to the court because her daughter Faraja Edward was arrested at night and on that date, she would be at Oyster Bay police station taking care of that matter. 2 She further submitted that on that day also it was unfortunately in the morning the applicant found his houseboy by the name of John Msalilwa had passed away while he was sleeping. Therefore, with few neighbors he sent the deceased body to the mortuary at Temeke Hospital and later on 23 February 2023 transported the deceased body to Matamba Njombe for burial. She concluded by submitting that there is sufficient cause which prevented the applicant to enter appearance. To bolster her argument, she cited the decision of the Court of Appeal in Bahati Musa Hamis Mtopa vs. Republic, Civil Application No. 112/2018, (unreported). Having considered the submission in chief there is only one issue calling for this court determination; that is, whether the applicant have shown sufficient cause to trigger this court exercise its discretion to restore the Land appeal No 257 of 2022 which was dismissed on 22/2/2023 for non-appearance. The Court of Appeal in Wasward Wilson Mapande vs. First National Bank Tanzania Ltd, Civil Application No. 216/16 OF 2017 (Tanzlii) pointed out the guiding principles to determine the applications such as this. It held; 3 "In an application to restore an application dismissed for non - appearance, the important question to be considered is whether the reasons furnished are sufficient to justify the applicant's non- appearance on the date the application was dismissed. The burden to show sufficient cause is on the applicant who must exhibit no element of inaction, laxity or negligence." From the above, this application should not detain me long, because; First, for the reason for non-appearance due to the death of the applicant's house boy was not substantiated. He did neither attach the death certificate to prove the same nor even travelling permit to take the deceased body to Njombe. Further, he failed even to attach the affidavit (s) of few neighbors he mentioned that they helped him to take the deceased body to Temeke Hospital. Second, for the reason that the advocate was prevented because of her daughter who was arrested, the law is clear that an affidavit mentioned another person, that other person must swear an affidavit. There is a plethora of authorities of the Court of Appeal and of this Court on the necessity of an affidavit of a person mentioned in the affidavit and its effect in case of failure. 4 In NBC Ltd v. Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002 (CAT- unreported), the Court held that; ”... an affidavit which mentions another person is hearsay unless that other person swears as well. " In Benedict Kimwaga vs. Principal Secretary Ministry of Health, Civil Application No. 31 of 2000 (CAT-Unreported), it was observed that "..if an affidavit mentioned another person, that other person must swear an affidavit, otherwise it will be hearsay7'. Therefore, the law is elementary that whenever another person is mentioned in an affidavit, unless that person swears his own affidavit, the adduced evidence touching that person will be considered hearsay evidence. In the application at hand, the appellant failed to attach the affidavit of the advocate and the daughter of the advocate, therefore his evidence/affidavit remain a hearsay. In a nutshell, the applicant has not furnished reasons sufficient to justify his non-appearance when his application was dismissed. Thus, Land Appeal no 257 of 2022 was properly dismissed for non appearance of the applicant and I do not find any sound ground to have it restored. 5 As such, the application is hereby dismissed for want of merits and 6