swalehe abdallah jembe vs salehe issa 2023 tzhc 23386 19 december 2023

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 273 OF 2019 SWALEHE ABDALLAH JEMBE (Administrator of the estate of the Late Elia Awadhi Ahmed) ……………………………APPLICANT

VERSUS SALEHE ISSA (Administrator of the estate of the Late Mohamed Abdulkarim) ....……………..……. RESPONDENT

R ULI NG MKWIZU, J The applicant, through advocate Benson Kuboja filed the present application seeking for an extension of time to set aside the abatement order of the High Court dated 30th March 2020 in Land Case No. 41 of 2019 (Mruma J.). The application is made under section 14(1) Of the Law of Limitation Act, Cap 89 RE 2019 and supported by an affidavit sworn by Salehe Abdalah Jembe, the applicant. The respondents could not be traced for service and therefore nothing was filed on their behalf. Submitting in support of the application, Mr. Kuboja advocate for the applicant said, an application for extension of time is a discretion of the court which is to be exercised judiciously with sufficient reasons. He asserted that in this case, the suit was abated after the lapse of the statutory period for substitution of the legal representative and paragraphs 11, 12, 13 and 14 of the affidavit stipulates how the applicant in this application diligently made efforts to trace the appointed legal 1 representative and how promptly he acted to institute this matter upon acquiring the said knowledge. He contended further that the applicant was informed of the appointment on 27/5/2023 and the period between 28th May 2023 and 29/5/2023 were used in preparing this application and on 30th May 2023 the application was filed on line in the JSDS II. He pressed that the applicant has through his

affidavit sufficiently assigned good cause on what had prevented him from setting aside the abatement order on time. Upon hearing the Applicants, the Court is enjoined to determine whether the applicant has demonstrated sufficient cause that justifies the grant of the orders sought. The supporting affidavit is descriptive of the matter and the steps taken by the applicants to the date he landed before this court with this application. The facts deposed in the affidavit are easy to summarize: Applicant had in 2019 lodged Land Case No. 41/ 2019 in this court, before Hon. Mruma, J. As usual, the defendant was served summons as required by the law and in response thereto a Written statement of defence was filed. The suit could not however proceed to hearing due to the demise of the defendant brought to the attention of the court on 30th August 2021, when the matter was called for hearing necessitating a long adjournment to allow the appointment of the defendants’ legal Representative or an Administration of the Estate of the Late Mohamed Abdulkarim. The matter was therefore adjourned for six months for that purpose. Unfortunately, nothing was done resulting to the an abatement order dated 30/02/2022 . 2 Still on his toes , the applicant made an effort to follow up the matter on the required appointment and on 25th May, 2023 learned of the appointment of Salehe Issa as the

Administrator of the Estate of the Late Mohamed Abdulkarim. He hurriedly contacted his advocate on 26th May 2023 and was advised to file an Application for Extension of time first before moving to setting aside the abatement order . The affidavit also shows that the period between 27th May 2023, to 29th May 2023 was used to prepare the this application which was filed on line on 30/5/2023. I have analyzed the evidence brought through the affidavit above. Though impressive, the affidavit lacks key information to support the prayers sought. While deposing to have obtained information on the appointment of one Salehe Issa as the respondent’s legal representative, the applicant has in his affidavit failed to disclose how he became aware of the alleged appointment, when and where was the said legal representative appointed. Paragraphs 10 to 12 relied upon by Mr. Kuboja reads: 10. That, just after the abatement order, I m ade necessary effort by contacting the fam ily of the Defendant on the appointm ent of the Adm inistrator of the Estate of the Late M oham ed Abdulk arim , to no avail.

11. That. on 25 th M ay 2023. I obtained inform ation that the fam ily of the late M oham ed Abdulkarim appointed Salehe I ssa as the Administrator of the Estate of the Late Mohamed Abdulkarim.

12. That, the order for abatement was issued on 30/02/2022 and the inform ation on the appointm ent of the Adm inistrator of the Estate of the Late M oham ed 3 Abdulk arim w as furnished to m e on 25 th M ay, 2023 hence this Application.”( Bold is mine) It should be remembered that an affidavit is a substitute for direct testimony offered in an application and therefore the facts deposed must be capable of proof and where necessary documentary evidence are to be attached to prove the deposed facts to support the conclusion the applicant seeks without necessarily abrogating the rule governing affidavits. The applicant’s affidavit is however silent on the name of the respondents family member with whom the applicant was consulting on the said appointment and no documentary evidence was attached to the application to justify the deposed facts. I would have expected the applicant in this application to at least name the person who gave him the information regarding the alleged appointment of the respondent’s legal representative, or naming the Court and/or probate cause through which the appointment was done or even tendering in court an order that had appointed the alleged legal representative to support the facts deposed in the affidavit . Inversely, the verification clause names the applicant as the source of the information in the quoted paragraphs above making the whole story

a mere assertion without proof. Since the appointment of the respondent’s legal representative is central issue to the disputes between the parties including this application , disclosure of how the information was obtained and the person who gave this crucial information was necessary failure of which renders the facts deposed in paragraph 10, 11 and 12 illusory incapable of establishing the prayers in the chamber summons .This is the 4 position in NBC Ltd v. Superdoll Trailer Manufacture Co. Ltd, Civil Application No. 13 of 2002 ( Unreported)where the court specifically held that affidavit which mentions another person is hearsay unless that other person swears as well. In view of the above findings, I find the application unmeritorious. It is thus dismissed with no order as to costs. Dated at Dar es salaam, this 19th Day of December 2023 E. Y M k w izu Judge 19/ 12/ 2023 5