Misc Application No. 77 of 2022
The applicant, Laurence Salama, had his PC Civil Appeal No. 02 of 2013 (originating from a Primary Court decision, on appeal in the High Court, Land Division, Mwanza) dismissed on 8th October 2013 for want of prosecution when he failed to appear before Hon. Lady Justice Bukuku on the day the matter was called for orders. Nearly four years later, on 29th September 2017, the applicant filed a Chamber Summons supported by his own affidavit seeking restoration of the dismissed appeal. He claimed that his non-appearance was due to sufficient cause, namely that he had been beaten by militiamen known as 'sungusungu' and was consequently confined to bed for two years while being treated by a traditional healer, a fact he claimed was attested to by a letter from the Hamlet Chairperson of Misambo, Magu District. The respondent, Tabu Samwel, filed a counter-affidavit opposing the application, but it lacked a known deponent, contained prayers, and had no verification clause.
(1) Whether the respondent's counter-affidavit was legally competent given its apparent defects. (2) Whether the applicant demonstrated 'sufficient cause' for his non-appearance on the date the appeal was dismissed, so as to justify restoration of the appeal/setting aside the dismissal order and extension of time under Section 14(1) of the Law of Limitation Act and Order XXXIX Rule 19 of the Civil Procedure Code.
The applicant argued, through his affidavit and oral submissions, that he was unable to attend court on the material date because he had been severely beaten by sungusungu militiamen and was bedridden for two years undergoing treatment by a traditional healer, a fact supported by a letter from the local Hamlet Chairperson. He contended this constituted sufficient cause for his non-appearance and warranted restoration of the dismissed appeal. The respondent, having attempted to rely on her counter-affidavit (which the court struck out for being incurably defective due to the absence of a known deponent, inclusion of prayers, and lack of a verification clause), argued orally that the application was an afterthought triggered by the respondent's move to execute the decree against the applicant. She maintained that the applicant was never actually ill on the relevant date or at any material time, that he had never been serious in prosecuting his appeal, and that the application was devoid of merit and should be dismissed with costs.
The Court struck out the respondent's counter-affidavit for being incurably defective, citing the absence of a known deponent, inclusion of prayers, and lack of a verification clause, relying on Salima Vuai Foum v. Registrar of Cooperative Societies & 3 Others, Commissioner General (TRA) v. Pan African Energy (T) Limited, Isack Sebegele v. Tanzania Portland Cement, and section 10 of the Oaths and Statutory Declarations Act. Consequently, only the respondent's oral submissions were considered alongside the applicant's affidavit and submissions. On the merits, the Court held that although illness can constitute sufficient cause for extension of time or setting aside a dismissal order (citing Christina Alphonce Tomas v. Saamoja Masinjiga and Richard Miagala & 9 Others v. Michael Minja & 3 Others), the applicant failed to substantiate his claim with any coherent particularity. He produced no evidence such as a Police Form No. 3 or medical records to corroborate the alleged beating or the severity of his injuries, and even the Hamlet Chairperson's letter did not attest to the sungusungu beating itself. The Court found it implausible that such a life-threatening incident would go unreported to law enforcement and would instead be treated only by an herbalist lacking diagnostic capacity. The Court concluded that the applicant's story lacked veracity, that his conduct showed wanton and inordinate negligence rather than diligence, and that the application appeared to be triggered by the respondent's move to execute the underlying decree. Applying the test from Shamsudin Jiwan Mitha v. Abdulziz Ali Ladak and Nasibu Sungura v. Peter Machimu—requiring proof that the applicant was prevented from appearing by sufficient cause—the Court held the applicant had not met this threshold. The application for restoration of the appeal was accordingly dismissed with costs.
The ruling reaffirms established principles governing applications to set aside dismissal orders and restore appeals for want of prosecution: an applicant must demonstrate, with credible and particularized evidence, that sufficient cause prevented his appearance, and mere assertions in an affidavit unsupported by corroborative documentation (such as medical or police records) will not suffice. The decision also reinforces strict procedural requirements for affidavits, confirming that counter-affidavits lacking a verification clause, containing prayers, or sworn by an unidentified deponent are incurably defective and liable to be struck out, in line with established authorities such as Salima Vuai Foum and the Oaths and Statutory Declarations Act. The case illustrates the judiciary's insistence on evidentiary rigor and diligence from litigants seeking equitable relief from procedural dismissals, and cautions against using such applications as tools to delay execution of decrees.
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