19890519 TZHC Dar es Salaam

I!. THE HIGH COURT OF TANZANIA· . , %\ <;, l.ub (\l . re, •-:t .... - ....:. \. ,. AT DAR ES SALAM ;~ -~\ i ) , I ,f CIVIL CASE N0.75 OF 1987 TOTAL TANZANIA LIMITED • 0 0 e ♦ • • • • PLAIN-TIFF versus HA~TUM MOHAMED ISIV'lAIL .. . . . ... . . DEFENDANT RUL I NG KYANDOL J. ~Total Tanzania Ltd. filed a sut1mary suit against Hattum Mohamed Ismail on 7th May, 1987. On 29.6.1987, after the said Hattum Mohamed Ismail had been served with su~u:nons but had not applied for or been granted leave to defend the suit, judgraent was entered against him by, my laatned brother Sek~le,J. In Septemb·er, 1987, execution of the decree coI:l.lTlenced and one of the it..eos se.ized. in e~ution of the decree was· a motor vehicle,. Upon exe~rntion commencing Hattum Mohamed Isoail, (hereinafter .· to be referred to as th;) applicant) filed the present· applica 1 . . ti/on . in which he prayed that (i) attachment of properties in axecution.· of the decree be stayed; (ii) the ex~parte judgm~nt of 29.6.1987 be set aside and (iii) leave be granted to him to defend the suit. This application was filed on 2nd June, 1988, that is to say.:. about a year since the judgment w£s entcred(ex-parte) on 29.6.1987. At· the connencement. of the hearing of the applicati'on before me, Mr.Mbuya for·· Total Tanzania Ltd(hereinafter io b~- referred to as the respondent)took a preli□inary point of objection to the application, which was that· the application has been lodged out of the time permitted by law and praySd that it be dismissed with costs. In reply, Mr. Muccadam for the applicant contendo~ that the applicatipn is in time and_,.... · prayed that it be entertained. This ruling_now is on these rival eontentions of the parties. I have gone through the case and I have reached .the . sett~ conclusion that the applic~tion is truly tine barred. As . ,·.: / .. 1 . ~o~•~rns ·.• the prayer to defend the suit this s.hould have been : i1 . ✓ made within_21 days. It was not done until June 1988, about_~ I •I year after judgment had be.en entered ex-parte on 29 •.~.198~! ·_. _:·, £ Concerning the prayer to set aside the cx-parte judg~e!l~ -,~d ...· o·.rx r.13(2) CFC, as rightly submitted by Mr. Mbuya,·-i··-·. ..lirti·.,.i_,·:· · · km• A·}w to set aside an ex-parte j udg□.cnt must be. made with~ · . ·_W{lt' :L_'.•j'~'((- _.,;~J~:t_~:t j ,.. :<;.;~ :i~:i'-. · . I weeks from the date of judgment. In the instant· oatt . · 1 . alrea d y shown, 1. t is . being ma.d e a ft er a b ou t one· year t _..;'-'· J.· ·J •ir,,,:\l·•,f,,~1 . ·,,'t :~~ ;' ;' .Vr~ ;(.;/::- . 2 \ ' ' The proviso to O. IX r. 13( 2}CPC pro_vidks tha.t where a de.c'r0e ha.s. b.een issued prior to the applicatiqn to set aside .an ex~te .judgocn:t.-- being ~ . . made the, provisions· . . o't -the .~ Indian Liri1:itation Act·~ 1908 as applied to fanganyika shall apply. . • - t -. . . The ·Indian Limitation Act, 1908, has been r0pea~cd ahd ~eplaced by the Law of Limitation Act 1971. Under this latter Act, as rightly argued b~ Mr. Mbuya, Ell application falling under the ~ proviso ·to O.IX r. 13(2)CPO raust be made within 30 days from 'tht:- date of judgment(see Part 11, 1st schedul~ to the Law of Limitation Act, 19'; 'i). As already indi.ca ted the applicant mad€ this application one year after the 4ate of judgment! CJ..e.arly he is·out of tine. Mr.Mucoadam contends that the affidavit in support of his application also contains an applicatton for extension of time to file the application if it is read carefully. With utmost respect, I see nothing in.the affidavit even suggesting tha~ an a;r;)l1.Co.t:Lo.n. tor exte~sio.n of time is being oade. No such . ap1Jlica-tion has been maC:e and. I must, as I have already indicated, hold that. the applicc=:tion is tine· barred and unmaintainable. It is, for this reason :1s Mr_. Nbuya prays, disoissed - with costs. JU &l i/{'v._ _Q,, / lrj-A_.A. KYAND0 JUDGE DAR ES SALAAM, 19TH MAY. 1989 For the ~laintiff/Respondent ~_Mr. Mbuya! For the Defendant/Applicant - Absent(served).