maulid h mwanja vs h n kavira 1983 tzca 18 5 july 1983

IN THE C O U R T OF A P P E A L OF TANZANIA AT Da R ES SALh a M * Coram: Mwakasendo, J . / u , Makame, J.A. and K j sanqa, J»A. .... C I V I L A P P E a L NO. 1 OF 1983

BE W E E N MAULID H„ MWANJA . . . . . . . . . = . .... . o APPELLANT VER SU S ' H. N. /Ka V I R A . . . . . . . . . . . o . . ...... RESPONDENT (Appeal f r o m the r u l i n g of the H i g h C o u r t of T a n z a n i a at D a r es S a l a a m Mr. J u s t i c e C. G„ M t e n g a ) d a t e d 2 9 t h d a y o f J u n e , 1 9 8 2 in Civil Case Number 260 of 1981

U D G M &JKAME, J.A. t. ‘' !n the High Court the p r e s e n t respondent, H. N.-KAVIRA, gued the appeLlant, MAULID MWaNJA, his brother in-law, for a sum '.of Shs. 108,000/= being the final balance of monies he had iHjt^'usted t o the appellant. The appellant admits that he was duly served, but on the r e t u r n date, 7th November, 1981, he did n";t t u r n —u p and he had not entered any appearance. yin e x - p a r t e judgment was eventually entered, more than five m o n t h s later, and the ajppellant m a d e no move known to the trial court until a f t e r he had been served with an o rder attaching his property, Starehe Guest Hfcuse, situated at Mabibo in the City of D a r es S a l a a m . H v;m a d e aj|p 1 i c a t i o n seeking to h a v e the ex-parte judgment set and ^ be' a l l o w e d time to f i l e h i s Defe n c e . The C h a m b e r summons w e r e drawn by the app l i c a n t himself, apparently, a l a y - m a n , ;‘ and that p r o b a b l y explains why the need to o b t a i n l e a v e of the ,.0 0 1 .1*1- t o hjj^e t h e t i m e w i t h i n w h i c h .t o m a k e the a p p l i c a t i o n jpided w a s not brought out with sufficient clarity in the summons ss orally couirto ^ aPPliCati°" *«>«< « t of tim a « pointed out ty jfmsil, learn e d advocafrp f nv 4- u k « th . a,ppl lc ' pplication. The le^rnoH ProSent riSpo" dent at the w ■■•fUc.*™., for thev «

HighCourt judge h>,,rd y tw° " O r d e r :, U p o n r e a d i n g the a f f i d a v i t in s u p p o r t of the a p p l i c a t i o n of the J u d g m e n t d ebtor, and h e a r i n g the a p p l i c a n t in c h a m b e r s , c o u p l e d w i t h the f a c t t h a t the a p p l i c a t i o n is time b a r r e d and no r e a s o n s a r e a d v a n c e d b y the a p p l i c a n t as to w h y he h a s b e e n so l a t e in f i l i n g h i s a p p l i c a t i o n I o r d e r th a t t h i s a p p l i c a t i o n to h a v e e x - p a r t e j u d g m e n t to b e set aside be dismissed with costs". Mr. Raithatha, learned counsel for the a p p e l l a n t b e f o r e us, submitted t h at the learned judge did n ot at all c o n s i d e r w h e t h e r or not the appellant was "prevented by any sufficient cause from appearing", as the learned judge was required to d o u n d e r O r d e r 9 rule 13 of the Civil Procedure Code 1966. Only the application-'.fco set a s i d e the ex-parte judgment was considered. According to the O r d e r the judge made, he took into account both the a p p e l l a n t 1s affidavit and w h a t w a s said orally in c ourt and, having done so, h e w a s satisfied-that the appellant had no reason for coming in so l a t e . The r e a s o n the appellant gave was that the High Court did not inform h i m of the f act that an ex-parte judgment had been entered

against him immediately aftdr the High Court had made the order. The High C o u r t was cer t a i n l y u n d e r no such o b l i g a t i o n and the appellant did not advance any other reason. We are respectfully of the v i e w t ha t the learned High Court judge was r ight in finding that there was no reason for the appellant being late by which, in the c o n t e x t of the o r d e r , the l e a r n e d judge m u s t h a v e m e a n t that there was no reasonable or sufficient cause to e x t e n d the time. Mr. Raithatha concedes that the learned judge did consider the a p p l i c a t i o n to h a v e the ex-parte judgment set aside. We are satisfied that the reasons the appellant gaye for not entering an appearance are necessarily incredible. The appellant pleaded circumstances beyond his control, in that some b r o t h e r of his, one J A C O B JAMES, had assured him that he had secured the r e s p o n d e n t 1 s conse nt to h a v e the m a t t e r settled o u t of c o u r t and that that was ' w h y he, the appellant, did not bother to show up. The court below ; was obviously not impressed by this assertion and w e are n o t so gullible either. The b r other allegedly went off to D o d o m a thereafter li "and has n e v e r come back". Mr. Ismail, who appeared again for the r e s p o n d e n t b e f o r e us, correctly pointed out that if the appellant was not telling a

fib he would surely have pursued the m a t t e r and s o u g h t to f i n d o u t f r o m the p r e s e n t respondent the t e r m s of the alleged proposed settlement. The appellant never did any such thing, which makes one reasonably to infer that the appellant merely chose to sit back without entering an appearance,, Mr. Raithatha sought to p r o m o t e his argument by assisting us with the case of M B U I v T H A I R U , 1969 EARLR, 133 In that case the p a r t y b r i n g i n g an app l i c a t i o n to h a v e an ex-parte judgment set aside had twice b e e n to the adverse party's advocate to d i s c u s s the case with him. The learned judge in that case was satisfied, on the facts, that while the learned advocate did not intend to m i s l e a d the applicant, the latter was left under a bona fide misapprehension t ha t it was unnecessary for him to e n t e r an appearance. The facts in that case are clearly distinguishable from the p r e s e n t matt e r . We are of the view that, in c i r c u m s t a n c e s , the learned High Court judge was entitled to d i s m i s s the appellant's application to set aside the e x - p a r t e judgment. This appeal is accordingly dismissed with costs. DATED at D A R ES SALAAM this ...5ft... d a y of . J (Y.M.M. Mwakasendo)

JUSTICE OF APPEAL (L. M. Makame)

JUSTICE OF APPEAL (R. H. Kisanga)

JUSTICE OF A P P E A L certify that this is a true copy of the o r i g i n a l (u. n. t\. ftyanuo;

SENIOR DEPUTY REGISTRAR