stivin musiba vs yahaya bakari makanya 2021 tzhc 2899 30 april 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA MISC. LAND APPLICATION NO. 92 OF 2020 STIVIN MUSIBA............................................................ APPLICANT VERSUS YAHAYA B AKAR I MAKANYA......................................... RESPONDENT (Arising from the Order of this Court in Land Revision No. 8 of2020) RULING 22nd and 30th April, 2021 KISANYA, J.: Stivin Musiba has applied for restoration of Land Revision No. 8 of 2020 which was dismissed for want of prosecution on 12th November, 2020. The application is supported by an affidavit sworn by the said Stivin Musiba on 8th December, 2020. The reasons for failure to appear are reflected in paragraphs 3 and 4 of the said affidavit where he averred as follows: "5. That no appearance of the appellant (sic) was due to assignment of Government duties of election seminars held on 15th October, 2020. 4. That non-appearance of the Applicant's advocate was due to accident injuries to his leg." i Yahaya Bakari Makanya, the respondent herein filed a counter-affidavit to contest the application. He deposed that the applicant had not adduced evidence to prove good cause for non-appearance on 12th November, 2020. At the hearing of this the matter, the applicant and respondent appeared in person and unrepresented. In his submission, the applicant urged the Court to restore Land Revision No. 8 of 2020. His submission was based on the above reasons averred in the affidavit in support of the application. As to what happened to him on 12th November, 2020, the applicant contended that he was attending a seminar on supervision of National Examination for Standard Four. The respondent vehemently contested the application. He argued that the applicant had not proved good cause that prevented him or his advocate to appear on 12th November, 2020. The respondent went on to contend that the applicant was present on 15th October, 2020 when the parties were informed that hearing had been adjourned to 12th November, 2020. He therefore asked me to dismiss the application with costs for want of merit. I have carefully weighed the competing arguments advanced by both parties. Admittedly, there is no provisions of law for restoration of land revision application dismissed for want of prosecution. Borrowing a text from 2 Order XXXIX, Rule 19 of the Civil Procedure Code, Cap. 33, R.E. 2019 on readmission of appeal, I am of the view that an application for restoration of revision may be granted for the applicant who prove that "he was prevented by any sufficient cause" from appearing when the revision was called on for hearing. The law does not define term "sufficient cause". As held in Mwanza Director M/S New Refrigeration Co. Ltd 6 v. Mwanza Regional Manager of TANESCO and Another [2006] TLR 329, what amounts to a good cause for non-appearance is determined on the particular circumstances of each case. The applicant is expected to prove that the reason was beyond his control. In view thereof, the issue that I am called upon to address is whether the applicant has proved that he was prevented by a sufficient cause. As stated earlier, the application for revision was dismissed for want of prosecution on 12th November, 2020. However, as rightly deposed by the respondent, the applicant did not state the reasons for his failure to appear on the 12th November, 2020. It was during oral submission before the Court when he stated that he was attending a seminar on supervision of Standard Four National Assessment. The law is settled that submissions is not part of evidence. In Twaha Michael Gujwile vs Kagera Farmers Cooperative Bank Ltd, Civil Application No. 541/04 of 2018 (unreported), the Court of Appeal confronted a similar situation and held that: - 3 "... That information however, is not helpful because it does not amount to a firm undertaking as it was not covered in his affidavit in support of the application..." See also, Interchick Company Ltd V Mwaitenda Ahobokile Michael, Civil Application No. 218 of 2016, CAT (unreported). Looking at the applicant's affidavit, the first reason is to the effect that he was assigned "Government duties of election seminars held on 15th October 2020". It is clear that the date deposed in the affidavit had nothing to do with 12th November, 2020 when the application for revision was dismissed for want of prosecution. Further to that, the applicant did not prove that he was assigned the said duty and the person/institution which assigned him. Even if the applicant had been assigned the deposed duty, he was required to seek for leave from the Court or notify the Court in advance. This was not done. As regards the second reason that his advocate failed to appear "due to accident on his leg", neither did the applicant name the said advocate nor avail the Court with proof to such effect. As a result, the date of the accident and the extent of injuries sustained by the said advocate are wanting. Further, the said advocate did not file a supplementary affidavit in support of the application. In other words, what was deposed in paragraph 4 of the affidavit is hearsay evidence and hence, not admissible in evidence. 4 Consequently, I find that the applicant has failed to prove that he was prevented by sufficient cause from appearing when Land Revision No. 8 of 2020 was called on for hearing on 12th November, 2020. In the upshot, I hereby dismiss the application with costs. It is so ordered DATED at MUSOMA this 30th day of April, 2021. E.S. Kisanya JUDGE COURT: Ruling delivered this 30th day of April, 2021, in the presence of the appellant and the respondent in person. B/C Simon present. Right of appeal explained. E. S. Kisanya JUDGE 30/04/2021 5