19980430 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SJ\.L!\.AM MISC. CIVILo APPLICATION NOo 135/97 D'SAVU\M CITY COMMISSION O o O o o O •• 0 0. 0 0 eo • 00 o. o o O cAPPEIJ.,_i\NT · VER,SUS 1\NDREI, NGINDO f s e O O a a O O o O O o O O O O O O o. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 .RESPOJ\'DENT

RULING Hi\CYJ1.NJ I':. 1 J. This is a.n application for extention of time to file an appeal out of time. It relates to an ex parte decree that was passed against the applicant at an unspecified subordinate court in Dar es Salaam. Only the magistrate has been Bentified. in the supportin~ affidavit. The learned ,' I trial masistrate is a Wambali, Mister or Miss, and the case is an P.M's Court Case No. 100/94 .. The particulars of the trial court appear in the learned counsels's writte~ submission; it is the Court Resident Magistrate at Kisutu. It does not need any empha,.sis to. point ,:mt that the supporting affidavit must contain all important particulars, includin,; the nature of· the claim, the venue and. the trial ma(iistrate. 13e that as it may. It is in the affidavit evidence of Bentho Lunyiliko Mandele, a leCTal officer in the employment cf the applicant, that an ~x-parte decree was passed against the applicant on 6th August, 1998. l\.n application to set it aside was filed on 19th May, 1996; it was dismissed on 6th_ May., 1997. The applicant was ac;r::,ried 1)y the 2.atter decision, so registered his intention t0 appealo In that connection, so it is alleged., the applicant applie,:l for copies of th8 judgment and of the proceeding. He did not cet 'them on time; in fact he swears that he has not got them todate. It is the applicant's contention that it has overwhealming

chances of success if the prayer it has made succeeds. Andrea Ngidos, the decree-holder, has sworn that the contents of the supporting evidence are falseo In par~icular, he accuses the applicant of 1Jeing negligent when it failed to collect a copy of thG ru1ing because· it was ready for collection 2nd June, 1997. In his written submissions the applicant's solicifor contends that he could not have 1odgecl an appeal in time because in orcler to do so had to have a copy of the decree and. a co"'}y of judi;pnent, dqcumcnts which must occumpany the memorandum of appeal 2 in terms of Order XXXIX rule 1 of the Civil Procedure Code. It is therefore ./ contended that the applicant's failure to file the appeal in t.ime was not due to negligenceo At any rate, he arQJ.es, the trial court never informed thern whether a copy of the rulL'lf, and that of the judsment were ready fer collectiono So in the absence of express notification by the wurt of the availability of a copy of the ruling, the applicant had means of getting information wh0ther.such copy of the r~ling was ready for collection. In the view of the applicant the application shoul~l be allowed on another and ind.ependent :-;round. 1\.nd this is that Civil Case Noe 100 of 1994 at the trial Court of Resident Magistrate is ridr:l.led by fatal irregularities. My examination of the supportinc affidavit, and as Mr Maira, learned counsel

for the respondent has pointed out, reveals that indeed. the applicant was nesligento For instead of calling at the civil registry of the trial c0urt, the applicant just ,sat back and waited for the trial court to deliver to it a copy of the ruling. No a~tion was taken until the applicant ran out of time within which to appealo Such conduct no doubt constitutes ncglii;enceo In any case, there is indeed no proof that the applicant over wrote to the trial court asking for a copy cf the ruling 0 \:Jere it 1:·o, as learned defence crmnsel as opined, a copy of such corresponJence should have formed p2.rt of the sup-p0rting affidavit. I am not persuaded that alle5ed irregula.rities in the procee:.lings of trial court per se is a sufficient ground for an applicatinn such as this onee If indeed the ap-plicant was minded to persue them, the first venue was at the time of ari;uing the unsuccessful application the purpose of \rJhich was to have the ex parte decree· set aside·. . Th-s.t was not done and the applican.t has only itself or its agents to blameo I therefore find no sufficient cause for the delay in instituting the appeal. Accordingly, the application for extention of time within which to appeal is dismissed with costs 6 Delivercclo Jo M. Mackanja · -

JIDGE 30/4/1998 Mro Josam/ Legal Officer: For Applicant Mr.· Kimaro In _person, /li.cl.v o : In Respondent I Certify th~t this is the tre copy of the Origirialo 21/7/1998