19760705 TZHC Mwanza

IN TIL HIGH COURT OP TiNZNIL.

AT MVJN ZA (sc) CIVIl AHEI\L NO. 55 OF 1975 (on the decision of the st:'dourt of Iltoba stct at 1Wzoba in Civil Appeal No. 205 of 1973 - Before: I.K. I;I Lsq D.L1. & .Oxinc1 Civil Case No 228 of 1965 of Ruhindo Pmoxy Court). i'0 IoLill:a • IS BI) . . . . SiUDENTS 0 0 • • 0 •. KERIDTI TbOLSI) •• . J U D C E. ir U IT T Su.ct: Setting aside oc sale In Ebcecut±on TrrnTnT ..T U-o -. • These .prooeedincs arise f:! ~ ori çnold.case. fii,o1Ly disposed-of in 19686 It u.emonstrats, io the rellent has been endowed vih a special iolity - S -tXC) '166rn p er sistence The appellant had been successfully sued by oae Di Nukcxuboroga in Civil Case No.. 228 of. 1965 on a boundery question. Althou8h the a ppellant lost in the Primary Couxt he elfcd not to appea, Executin pr000inc 'cc tedby respc.adent No 1, the appellant1 s land w attachcd a J finally rcsponcont fo. 2 bought the land at public auction At th at stnge I ancl. after one and half years, the appellant unsuccessfully sought icave to a ppeoa out of iame. The District Court rejectei k'u app1icion and the Pgh Court in (cc) ap1idation No 17/1968 did the some;h w en the appellant .appealed- against that rejection by tle District Court.. After a iod of slumber y the appellant flied 1 aflappliotion supported by affidcavit. with o view to scttinE, aside the auction s1e. He eloiiieci, that the s1 Was done in his abscnce and without

his luiowledge. I:e 1eo cl.no, that he went to py back the purch'se £aofey — 3()/..•.; before thirty days e1esed but he waS unceremoniously. put off by the court0 The District Court c1 isnissod, the application as devoia of substance, Arieveci, he has no ppc acu to this court s repeating the scne grouxia.s ho wielded in the District Jourt. As it can be gathered, -thc appellant wants the sale to be set aside and according to the icv applicable, this can only be done under ertain conditions, provided by rule 05 of the istrate Court (Civil Procedure in . rinary Court.) rules 1964. It provides titus:- `35 (1) Oh application ma(llewithin thirty days by any person affected or of its own motiox, the court. nay sot asidc'a SOlO of inaovable opert lilt is satisfied:- that there has been fraud or naterial irregularity in the proceedings leading up or in -the conduct of 4-1- sale or that the judgeant C1.6btor had no saleable interest in the property sold; Provided that nO sale shell be set aside, unees tile judpaenG aeditor, the purchaser, - •... 2 any other person acted, have been given an opportunity a be heard and prc1u.e evidenoe 11 It Is desconiole thdrcforo, that before the court can set aside the scJ.o, it must b satifled, tiat there wan either fraud s material irregularity in the process up to the salc, or that there was no saleable interest in the land so sold. It the setting

aside of the sale is sought by the party through an appl±áation, the onus is upon him to cllegcd end substantiate his grounds, to the datisfaction of the court Ply examination of this record reveal no irrud, nor material irreguaanity The apeliont urged that he eid not Irnew of the sale Iike the courts below, I am bf the viow that thi *s ciiis is unsustainible. The record is uithiding about the fact s that the attachment warrant Lithibit "A' was fixed on the outencloor of the appellnntts house,in the presence of neighbours, in addition to necessary publication. Hov con he say he say he did not iaow. The Tecord. also s1ows 9 that the sale took place on 10/6/67, thirty days after the order 9 in compliance with rule 75 of ihe Primary Court Civil ocedure rules 1964 that provides:.... : Subject to the provisions of rule 66 (not applicable here) the serne of imovable property shall not take place until after the axiration of thirty clays from the c1hy of ise of order of se1e. Thus, as I ce-teat no fraud nor ir ef-ularity 9 I consider the court below, was r1L.I1t in findi-xig no merits in this applicetion. The eppellant 1id. c1.o allede, unat he took the purchase money to court before 30 clays had elopsed c but he was pt 1.off. Abo.mth ic 0Id 9 this could not have stopped the sale as this was past - auction sale The sale can only be stoi:;ped as provided by rule 73 (i) of the

Priiiary Court Cj1 Procedure rules, ii the anount of the award d.us costs, and expenses of sale dre paid by the judguent debtor to the person conductlnL the sale or by c - nn hin prasf to s'ioW the same has been paid at or before tho sa1e On the rCcord we have there is nothing, to show , that he cUd pay the bnount of the., awc±d, plus costs and expenses to the court broker on the cl.y )f tue uction. Of course,,, it iaay well be, that the appellant got the money on dar subsequeht to the s le. If I have to xnd the aprellcmtt s olai'n further, and believe aim ao h ye meant, uhat'wantcd to pay, after thirty days of the sale 9 then he sioulc have mace to roceesary aplicion to set aside the sale 9 sefor dclivcry of propert sold in cinoution, to the purchasar. in thc did aotini g of ti ai 1 a - a 9 c-nd although it is snowie the aucto took p1ce o 10/6/1967, the upe11ant ought to - take 'steps in l973 In the cincums -taxices vn abcv 9 the District Court was rihht, in di&aissing tbi application, and it is hereby also disaissed by this court and with costs' 1H COUT PlatItZi E. W. KJITI DGE 5TH JUIY, 1976. k %