19861004 TZHC Dar es Salaam

' . ., ; }- '. 1-. i.). ~ I ! ' IN THE -HIGH COURT OF ~ANZANlA AT DAR ES SALAM -cIVIL APP EAL No. 9 OF 1986 (orig~h~l RM c,v;l Case N~~ 19 of l9 ♦~) 1. RAJABU BAKAR!l 2. S,§LJtMA~; JUMAj•~••••••••••••Al?Pl;;LLANT versys KARUME BAKARJ: t RAJABU SAKARJ; ••••• RESPONDENT JUDGMENT MAPIGANO J. ,. '4n -the ~ gf the res.:deo-t ml)9"a-trllt~ at Dar ... es salaam aga,.nst the defendarit Karume Bakar~ _al' ,s Rajabu Bakar' • · The plaint. was presented to the cc;,urt 'n 1979 ar,d the.. d• :tP\lte wc:1s over a t~tle to a ~ 1..g:ht: 0£ ~cupancy descr•bad by the ltnd off•ce as plot 63 Block z, ..s~qu;:uni in the City of Dar es salaa~ ,:t has turr,.ed o:.1t to be a protracted B.tigatio• and the record of the tr:i. al court is strewn.with several adjour,-,ments and applications, arid charaeterized· by indolence or, the part of the parties as well as levish indulgerice on the ~art of the court. of one thing I am-certain: one of the parties is a crook, all out to perp,.,:-.r.ate a swindle against the other. When the pleadings were completed, and after several adjournmer,ts, the hearins e0mmenced on 29th February, 1980 before Mrema Resident Magistrate, both parties being present and legally unrepreser,ted. Ac~ording to the reco~d, the hearing was ·adjourned after the plaintiff has adduced his ~videf:'.)Ce in--:<=hief, but it appears that no date was fixed . . •, ..... -~~- .."': . -..:::: ::;? '·' .-.:'-: .. ~.,.. r. i.-::-.·~ ·: ;.· " ~, .• for the C8ntinuation of the hearing. • . ~ • • .~- ·.•, - .~J- .• ' : -0. ! : . ' ~ : f f •' i:-IoweVL:r, the case was called on fa: further hearing on ·• -~➔ !,"' -~~ t -~(}, .: .: 4'- I.:.· 'l1 • I . :• 10th July, lSTOo on that day the defel"'ldaf'lt was absent and • '.. : , ~. • ... ~ t ,' : ·! ~ ... the learned ~agistrate made af'l order that the matter should • : '· -- .• . ' .• , i . <. -. t· \ . • proceed ex-parte. ,• .·. The plainciff then called tnree witnesses ,, ~ . ' . .· ~ ~-. . • I to give evidel"ce _on his behalf, after which the heqring was again adj.ourr,ef'.!. c~~~-came ~~ for further hear!pg ~n 19th •••a/~ - 2 - September, 1980 when an advocate from the Tanzania Legal corporation appeared and made an applicetion to represent the defendant. The application was refused, the magistrate telling the advocate that Here was already a~· order for the cou.rt to proceed ex-p 9 rteo Thereafter the ex-parte hearing v✓ c:,s adjourned again. It resumed on 24th October, 1980 and co~cluded on 21st November, 1980. Judgment ex- \~l;::lS parte wc:.sl pronounced on 15th December, l 980, declaring the plaintiff a~ the lawful holder of the right of occu- •pancy. That was round one. on 1,7\h Jun°-, 1981 the defendar,t made an application to set asid2 the ex-parte decree passed by Mrema Resident Magistrate, which was a liti:le over seven months from the date of the judgmerit. Af·cer a number of adjournments the application came up for hearing before Longway Resident Magistrate on 29th April, lg83. In the meantime,· on 16th August, 1982 to be exact, c~e Selernani Juma, hereinafter 11the puJ:chaser," had bought the property in question from · the plaintiff for Shso 20,000/: and had proceeded to develop it extensively. Th-:~ IJlaintiff was absent Of'\ 29th April, 1983 and the application was heard ex-parte, though it is doubtful whether the plaintiff knew or was supposed to know that the applicati~~ was set down for ~earing on that day. The magistrate grant0~ the appli catic,r or _;-d May, 1983. The ex-parte judgment of Mrema Residert ,v,._::gj_.s'c_,-~ te was thus set aside and a fresh hearing ordered. Th~t ~~~ round two. After numerous adjournments the suit was called on for hearing before Kato Resjdent Magistrate on 21st Februarv, 1986c The plaintiff was a7ain absent a~d applyi~g the provision of rule 8 of orde~ 9 of the Civil Procedure Code th2 learned ~agistrate dismissed the suit. That was round thr:~e. - 3 - on 7th March, 1986 the plaintiff and the pu.r:c::haser brought applications to the court, ~he plaintiff wanted the dismissal set aside; the purchaser wa~tei a declaration that he was a bona fide purchaser of the property without notice. The applications were heard by Kato Resident I , Magistrate on 17th March, 1986 and on 25th March, 1986 the t),j , learned msgistrate turned down both applications. That was round four. In relation to the application, of the plaintiff, Kato Resident Magistrat~ held that the plaintiff had failed· to show a good cause for his absence on 21st February, 1986. And in relation to the purchaser's application, the magistrate found that the purchaser knew at the time of thQ sale transae-tion tha~ the p:-op.er~y waa still the subject ' of judicial1proceedings, ar.d observed that the ~1sposition in question lacked the appro·ral of the Land Office. Both the plaintiff and the purchaser are dissatisfie~ and have brought this appeal, and this is round fiveo I ha~e examined. the memoranda of appeal and ~arefully listened to the oral argument,s put forth by the parties• In my considered cpinion I think there are meri.ts in the appeal of each. With regard to the purchaser's appeal, I see nothing tangi~le that could have led the court to reasonably conclude that the purchaser was aware, at the material time, that there wa.s a dispute over th'e proper:t:Y• The purchaser paid the price agreed upon and took possession of the title deed which was in the name of Rajabu sakari, and as I have pointed out, he then carrie1 out extensive improvements. In my assessment there was nothing that credibly rebutted his assertion that he purchased the property for a valuable consideration in good faith and with good reason to believe that at the time .the property was vested in the plaintiff and that it was uner,cumbere~ by rights or interests enforcp-· 1 ·" , ... . .. - 4 IJ, . , . -,~ • ·..f~'i' . by third part· ~s. His only drawback is that the conveyance has yet to be approved by the land office which means thatit remains legally inoperative. I think he deserved at least a compensation nonetheless. The tevned magistrate .::-',,ad into the delay in seeking the approval of the Land of:"'i:..::2 as ev:lder,ce of the purchaser• s knowladge of the existenc~ of this litigation. In my opinion it is reasonable to hold that 'the delay goes some way to show the contrary. rt is plausibly arguable that had he been so aware he would have post-haste taken steps to have the conveyance approved by the Land office. .. I tur~ to consider the plaintiff•s appealo Several g.rounds hav•, bc:?em c a n v ~ "by the plaintiff. The dismissal has been· ~S:SaiTed~·,;fi· tw'oi· gt:iouncts·~: The' first' ground is· thnf tl'le 1nagi~trate err·ed :1n'.:.&ismissing the suit, because, it hns been -al)..eg.e.d,:. the plaintif.f Wc;!.S not aware th.at .th..e ..case wns • . . ' • ' '~ , ... • • .. • • . , t -a~_t :e-o~p. for hear.ing o(• th~t day a,. And -th_~ second .ground is that the m.agistrat.e_ errGd. :tn,:~iism,iss.tng tha.,suit: ~iJhou:t• hearing at"y ev.idence.; . . 1rFt'.1 re.spect.,, ... .... ,L £ind .no ... f.qctual_ basis ' ;,. •. ' in the fi.rs,t ,g·round . . . .. . ~ and no, legal . bas-is in the -- second ground. ..· ;!'he record gives the p-lainti-ff the 11-e:-. the suit was fiexC"d • ¥ • • ., .; ,i,. • r • :f_Qr. hearing pn_ ·21st February:. at the re.qu_est .of the plaintiff 1·s advocateo Upon his default of,~ppeara~ce the learned magistrate was obl:i.gec1 to dismiss the suj t [.t'raightaway. That is what rule ' ·, . : ,. . ' - ' . ' ' . ,, - ~ 8 of order 9 of the Ci'ril Procedure Code lays downo < L , ; -f- 0 0 . ., \ .~ ,<;l~Gi~iqn. -0_f Lo11gwai- R~s,}.qerit .Magistrate ,d:ated 3rd May, 1983" iDt\e 'fif~t·. • point t; .9 ken, ,wag . th.at ,the learned •magistrate ' .• 1 had • no ipowe.r. ,to .set aside t'1ie.. j~dgment of; MreIT\a Resident 1'1agistrate • ' - d • ~ • 0 ~ • 0 C • • 0 ' :4Ated l5t"?l Decen:be.i;:, 198,0 1.. because,. it wa~ argued,.that - jud9ment _was n_at, e.t 1·..!w. pass€Q .,:e~,-part.e a?')d -that the only recourse .open -to the d ,~ 3r j"'-nt_, was an. appealo Couns.el forthe •o•o••/5. . ., - 5 - the plaintiff has referred this court to the decisions in (1) Moshi Textil?s Mill.Iv. g. Jo De Voest 1975 LRT no 77 and (2) Kenya Poultr¥ Develoement Ltd. v. Se Jo Hunt 1975 LRT "• 61. I thiMk the plaintiff is wrong. ? think the facts of this case are not on all fours with the facts of those two cases. In . my opiwion . the . judgment of Mrema Resident lv.agistrate was an ex~part.e one• As shown, the defendant did r,ot appear on the day fixed for the adJ~urned hearing. As indicated, there is nothing on the record that shows that his non-appearance was wilful, and that is precisely the materi,al point of disttnc:tion betwe~~ the present case and the two cases cited by counsel for-~ platntiff. The other point taken is that the iearned magistrate ~iroo.ted herself en the fact that the application to sei,aside the judgment jas time~barred~ I ent{rely agree. The prescribed period of limitation is s1x· weeks, in terms of rule 13(2) of order 9 cE the Civil Procedure Code. As . observed, the appliciition to set aside the ex-parte decree was made a little over seven morit·h~ from the date of the judgrnento It was, therefore, wrong for the magistrate to entertain it, th~re being rieith~r an application for tior any formal grant 6f extension of time. rt may be observed that no objection was taken by the plaintiff j~ the lower courto The general rule is that the appellant canrot be allowed to raise in his memorandum of ~ppeal an objection which, if it had been taken in the lower court, might have been cured by appropriate ameridment or otherwise. Howevert nC'.'.:ording to the persuasive comment of ~Bitaley and Rao, there are recognized exceptions to that general rule ·and the que:::,tions of law such as. limitation or res-judicata, which can be susbtantiated on the facts al- ready OM the record, as is the question of limitation in ~ ,. :( . \ 1 ' I - 6 - the instant case, arc c>. iong those exceptions, I will. and do allow the appeal on this ground. In view of the fact that most of the grounds have been d~smisse~ r ord~f that ea~h party shall b~ar his own costs. Delivered to the parties. \ Y~":~ Do P. MAPIGANO JUDGE DAR ES SALAAMo 4th october, 19860 ..J -I. 'Y