19980415 TZHC Dar es Salaam

IN 'rHE HIGH com:tI' OF TANZANIJ\. AT DA::::/ ES SM_.,_l\.J.M 1 CIVI.L Cl'$::: NO. 88 OF 1987 OM!,.BI Mz:s:r;:; HTUM-JIBNI O o o O O O • O O O • a o o o o o PLAINTIFF

VEHSUS SAIB I.SSA M1\Gt1.NZlt •••••• o • o • • • • • • • 0 • 0 DEFEND!~NT -- RULING • i • Mackanja, J. The applicant seeks two.reliefs. The ono i.s an extention of time within which to file an application for an order that the !_X-:,J2;'lrt~ decree against him be set ::i,sirl.e; -the otlrnr is that the execution of the !,~-..:ee,rt~ decree be stayed pending the determination of the first relief and the determination . \ of the suit if the first prnyer succeeds. The ex J?_c;_ri:;_. decree at issue fa a product· of 2 suit that WllS filed by Omari Mzee Mtumweni, respolldent (decree holder) against Said Issa Manza the applicant/judgment debtor. The decree holder had instituted civil proceedings to recover dama.ges against the defendant/judgment debtor on account of the alleGed arrest Md wrongful detention of the for~er 0 The· case was first called in court on 20th June, 1987 when both.parties were representedo Mr Jadeja lenrned counsel, appeo.red'for i;he plaintiff and Mr. Ktsusi, learned advoco.te, aFf)enred for the defendant. The suit was adjourned on a number of occasions; on 14th January, •· 1989, it was set down for hearing on 27th April, 1989. On that date both parties were represented, Dro L-::1mi-1ai, holding brief for Mro Mairao appeared for the defendanto On the date scheduled for the trial the case was called before Mapigano, J. Mr; Rn.him, learned counsel for the

plaintiff made the pciint that the defendant had not filed his written at,:l.tement of defence. It was upon that omission, and int erms of Order VIII, rule 14(2)(b) of the Civil Procedure Code that the plaintiff wa.s -given leave to prove• the suit ex parte • Consequently an ,;!_Yi_, l2~r.!.,E:,. jud[yl'lent· in wD.B pronnounced favour of the plo_intiff/clecree holder on the 17th of July, 1990 0 " I l ··- ·_J The first attempt to have the insta..nt ,:>.]:r!"Jlic(,ti.on heo.rd was rnnde before Ky::mdo~ J.1 who partly heard it but put it off midway to enable ~he applico.nt to en~-;<Cg<Y an lnwy0r. This was on 8th December, 1992. · He was represented by Mro Kns:m:nbugu, le.:trned aclvoc'.'1-te, on 20th May, 1994. From th::-..t latter· chte th~ applicnnt took no action until 13th August, 1997 when the matter was h0ard. The applic31lt swears that he could not appe<1r in court on the day the court granted L~ave to t:1c pl-nintiff to prove the cnse ~~ because he was not served with a- summons ~lir9cting him to appear on that day. He contends that he came to know that the case h:1d be·en determined in his absence at the time the court broker was executing the ex par~ decree. He s1-1enrs further thcl.t the court was misled by advocntes who pretended to hold !fro Maira' s brief on the day the case w::i.s fixed for hearinGo He therefore · believes that he hu.d ren.sonoble c2..uso th.::i.t

prevented him from appearing. The respondent opposes this application, contending thnt the applicant· is SUilty of laches for not having instituted the n.pplicntion prounptly . as it took him four yen.rs before he hnd one in plnceo Neither pnrty desired to make submissions to highlight their case. I am of the settled opinion after h-::i.vin 0 appreciated the affidavit evidence that the applicant has not led sufficient eviclence to establish a· reasonable cause for his default to appear. For if indeed f·~r. Maira did not ask Dr., Lamwai to hold his brief, Mro M.n.ira shoull have testified in that behalf, either yiva voce or by affid~vito The omission to do so renders the applicant's evidence to be shere hec'.Tsayo So the claim that Mr. Maira did not ask Dro Lamwni to hold his brief hn.s not been established •. Even if Mro Maira had appec1.red, his presence would not have made any difference because the ex pnrte order is not based on the applicant's default to appear. It is nased on his failure to file a written statement of defence fer inove than two years after he had been called upon to do SOc In these circumstnnces the npplic~tion for the prayer that the order for !z :e.s,:r;_,~ proof of the claim and the ex _:2/j_rte decree be vacated has no ' . ., . ~ merit whafever. ·That part of the npplico.tion would fail. And since the second pre.yer depended on the success of the first one it is likewise doomed. It is upon the foregoing considerations that I now dismiss the application with costs., Order accc,rdin,ilyo Delivered. J .. Mo Mnckanja

JUDGE 13/3/1998 Appear,:mce?,.: . Mr. Kashumbugu: For the Applicant / Appello..nt Mr. Tairo: For Respondent I Certify that true copy of the Original. 15/4/1998 /