Juma S. Bussiya vs Zonal Manager (South) Tanzania Post Zone Manager (Misc Civil Appeal No 21 of 1998) [2000] TZHC 287 (11 August 2000)

24 b > IN THE HIGH COURT OF TANZANIA V. A WHEYA 6.2 S C. O VI iO .21 OF 1998 (From ii s c . 4/98 of . RIs Court I1beya) .JUMA S. BUSSIYA.o...,....;.oe.. ..... ,APPELILflT RSUS V V ZONL NANAGER (souTH) TANZANIA POST S CORPORATION) . . . .RESPONDEIT RUIING. 10 MACI CANJA. J. This appeal was instituted on 17th Nbvember, 1998, when the filing fees were paid. vide..E.. No05104899. . It•wasathnittet.o hearing on 21st January, 1999. Nothing was done to it wTil lh ceniier,. 1999, when it was set down for hearing. The appellant did not appear. Upon perusal of the record, and the Court having satisfied itself that the applicant had lost interest, th.pp.a1 was dismissed for want of prosecution on 2d December, 1999. The applicant filed the instant apiication in which he prays that his appeal be restored to hearin' intertes. As is the 20 usual praotice of this courtt .,.appicatioii IS supported by affidavitalèvidence. V According to the appAcaiit's..:eide.nce•iais appeal could not be dealt with by tths Cour - because the Coui1 was approaching its vaccatioñ; I am sufe he refers to the Ghristmas recess, That nothing ckuicecione to 'hiHintter because' between Wtarch and June 1999 the court was busy with' essions caës which were held almost countr—wjde. He swears furtr., tb fQlioyving ii s filing V V::. V V , V• L

• 2 - I f of a c*tiicate of agency,: the:-apea1wos for the first time set dovi f.r hearing on 13th April, 2.000. It is also in his evidence that he has been keenly following up on his appeal from the day he filed. it. 0 The respondent has opposed the aplication. After introductory preliminaries Ms Stella SiiuIoko, Principal Igal Offcer of the rspondent, . two re aybbjections iecounter affidavit. The first ob1ori'i d -ou1e--pronged namely, hat -e the application is bd in 1/aw on the grounds:- ]. that it i 1 made under the wrong law, and r / ) tht it is/ made out of time and vihout 10 le;ave of this. Court. secoid1S - tha the applicant has not disclosed sufficient se for his non-apper..nce wijien the appeal was called for hearing. Paragraph 4 contains ave'ments akin to those winch a defendant may raise in his/her written1 statement of uefence, and th6y ,- a -t9 to the following effect:- / ............................. that the/ contns.,Øf paragraphs (1) and( (2)/of: ti - apii cant' s affidavit have been nojtd;
• (b) that ragraphs 3 9 4, 5, 6 and 7 ar 20 strongly disputed and strict prefi requird The respondet contends that this doJrt did not in any ce Ptop its actiitie as alleged brtha applicant' . or at/all; : (c) that in addi -bion'and without prejudios topragraph 4(b) above, the respondent : con?nds that this Court acted quite fairly in ismisin the app1ction since the appellant was not acting diligently in ::' 30 conucting this case - and that thapp'iicat . . ou 1ht to be. accountable for his own in1iiigence and recklessness; and

td paragraph 8 of the pondnt contends that the case should not be restored sthoe • entex'taiiün "it sll'be beceu the trial court elready dealt with thç said 1nterDrtat1on and consilted various inter-retaions 1flae by the Court f 'peal in reaching its judgment,. ' When the parties were called upon to file written arguments each io 0 " ' •' said their 1 affidc'vita1 eyidence was enota they had nothing else V to add.the.reto. ' :'. •,,• • . ' ' .• Obviously what was filed as a cotnter affidavit does not pass the test for what shoild he contained in an affid,avjt. , ' For Order XIX rule 3(1) of the Civi1' Procedure Code clearly states that "(i) 'affidavits shall be confined to such fats as the 'dbponent is aole of his ovvn knowledge to prove....". There is therefore no room for preliminary obections Indeed, an affidavitsh11 not contain any arguments and submisions on points o± law. What the resondent wasrequired to do was this. Firstly, to offer evidence, the facts, upo. which it defends itself against the appli'cation Once the counter affidavit was file, it could then give ,notce, ma separate document, that it Intend's to raise 0,• •• ' preliminary points of objections, outiin them in the said document, which are to be heard ahead of hearin' the 'pplication irtes. On the date on which the ao'lication will be set down f Or hearing Ie a'tie'*ould 'advance 1egal 'arguients in the prosecution aid dcfohce 'h" objections why they .bêlieisie:,hey 30 s!ould'he given 'the relia±',, they seek. In ou'ése11.t:circumstances paragraph 3 of the counter affidavit shotld have been filed separately as 'h proi±rninary.objections and what is'in paragraph a..'

4/ 4 should have .foried :the .basi s/ fpz.. S1.b1T113S1 ons, on, pints of law. Since thetfoD the cünt±' /affidVi t. contains matters other :.... •to: than facts,, tia•t .S/ aY S the evidence which the respondent relies, the same iJs mnadrni:sile. and a-inp.:be acted on 0 This, t1ei, 1eave tii'i3piiôatidn/Withoixt an..evidence by which the respotident would have côntra'veted the affidavit that SuDports the application. now come uo the àfidV-t that•upports the apiication A arefl e5<amihation Of 4iat aff1d6Vft •iowC at onoa.that;ts con-tents are entirely at variance with the Court: record, Nowhere 10 ii the Cou±rt:eco.rd isit/.record. that...the appea. 'eiined inactiie because the Cout was on-sessions. twe Iareh and June .j999; as .älleed in ragLa is eio a., lie that the ..peal . was set down for hcoring on. 2000 in •rëponse to the certificate of urhy1th ai31ioaht filed 16th November, 1999; the record docs not say so. It is now that the applicant o: .ha,.kown interest because be filed his certificate of urgency t months after the peai W'S a dinitted on And, had he been diliLent, be could not hvc takei over two months befo he could hLVC /realised that his je1 had been rn disissed 20 for Want of prosecution s . .. . .. . .. . H On the other hend and having peru. thd ruling of the tiil court, the aiic'n stands no reasonable chonc of succeeding in hi-s appeal. Allowing the application would, theréfbe serve no useful PurPose./ 2 Upon the fooing coniderations the application is disnisse&. There/shall he no order as to costs. De1ivered./ / . .. ,: •.. ;•: r:I3ckaflja I JUDGE 30 11.8.2000 In Person — For/Applicant . . . Absei-t . For1 Respondent