Jamali Hamdani vs David Kitundu Jairo (Civil Appeal No. 64 of 1998) [2000] TZHC 112 (9 May 2000)

'(I ,• ... \ .-......1 MirlITA,J. IN THE HIGE ,COURT OF TfalU.NIA AT DAH ES SALA.Ali CIVIL AI'FEAL NO. 64 OF 1993 JiMA:::..I HAV:DHiI o • APPELLANT VERSUS DAVID KI'l'u?iT.;U JAIEC • • • • HESP:::NDENT (FROM TTL Di"i:CJiSION O:f Tm: nw s COURT OF · DAR ES St.IJV:,M AT KI VUKCNI IN RM CIVIL CASE NO. 45 OF 1996) JUDGMENT The E: 0 1bjrrt; of the dispute in this matter is plot No. 703 Blo•:c na- 1 Mbezi Mecti1 1 .m Density Araa, Dar es Salaam 0 The plot was allocated. to Jamal. Harndani, the Appellant, by the KinOndoni Land Office on 18/1/1989,t Mr.Da,·id l(j tundu Jairo al;;;o c:i.aims to ue the legal owner of the same piot. He claims to l1Bve·· bcihght the plot :from 01·.a :;JINGA KAJ.INL on 3.12.94. He also holds a lett, · ·of offer in respi'ict of the s.:?.m-:, plot issued by the Dar es Salaam City Land OE dated 16.12.1994. On 28 •. 1?-.1994 J.'.l.nlru. Hemdani was permitted· by the city counc.. to errect a barbed wire fence around the plot. Before he coul<.i :le st:i he fouficl out that bavid Kitundu Jairo had errected. a fence arrourtd the $arrie plot and he-:: errected a band thereof, JarnaJ. Hamdar.i instituted a suit in RM'S Court of Dru. es Salaam at Kivukonij beinc PJ1 Civil Case No. 45 of 1996 seeking an evietion order against the Responchmt &nd demolition of the etrueture bult.'." by the Re.s· pendent cn·the said plot. The suit was mentioned befc-re the ccurt on a number of occasions and was adjourned for various reascns. When the matter was called up_for hearing on 24.3.1997 both parties \vere D.bsento The suit was accordingly Dismissed for want of prcsecution. When the _Appellant becc1ne aware of the exparte judgment he applied under order 9 rule 13 to the sRme cc·U:rt frr an order se:tting aside the exparte decf't> •. The applicab.cn w2..s rejected. Hence, this appeal. 0

2 At the hP". ·. nc '>:f' th:i. -: e.ppeal the Appellant was represented 'by Mr. Zakaria Maftah, lea-rne:~ -"'.dvoc:i.t-2 and f"ir • .R.NoSoA ·nutenge lerned advocate represented the Eesp:mdentc The p,ist oi" tlir, Maftah 1 s submission, if 1 understood· him· well, is that wher.. the matter ce.usE'1 'Vs f:01' mention: en· 4.,3.97 advccate for the Responde ' was sick and :!.i- -.s ~~aftah ':ho suggested a hee,rinc- Date. He sug;ested 24/4/97. But the trial Vi;~is:rate rw:·.,r-ded 24.3.,1997 instead of 24.·4019970 Believin[i th.at hearing dc:-,-ce Has 24 0 4 V 1997s;'s i: •. c ilarr 1 the advocate for the opposite party did net apJ eru.- or, 24- ·5.1997 because his clerk was in court on 4a3o 1997 and heard Mr. I'.s.fto.n sugges·cins zl:/4/1997 as the hearing dae and must have in formed the.advo:,J.te for th~ cpposite party that hearing date was 24.4.1997 Mr. c:._j Maftah arqued that this st2,te cf affairs wa.s a result 'of e.:immenication break- . down beh:een hi:x,elf and the trial magistrate vlith regard to the ruling of the trial magis·cr.s.t.; !v'1~·-- I-'3.ft, :1 . .r½_c.cd -hat the learned trial magistrate faild to direct" hi.s mind properly e tc, what constitutes sufficient cause because in ;-,.; ruling. the learned -::rial n,.:..::;istrate said he found no basis for granting the applicat:.onj h<::. said h0 wt- 1::i.~ 0 e.dopted the subms 9 ion of Hro Rutenge counsel fc-. the Respondent. M:c, Maft£J1 arcued that in his submission Mro Rutenge dwelt or two reas,:ms. One::· ,.,,,313 -c:bt ti1e application -,.,,as time barred and in the alternat:. that no :3ufiicient ccuse ha.d been showno The trial Magistrate did nr.t infiicat on which two·grcunds his decision was based. Thus the trial magistrate has failed tc: direct his mind. p1'.'0l)erly as to what const"i tut es sufficient causeo Mr. Mafta.11 arqued that what constitutes sufficient cause is a matter of fact and that brea..l<dovm in com:tnication is sufficient cause. The learned .?-dvocatE quoted a passace in Mulla ( n· the c,:,de of Civil Procedure, 13th Edition at • P.8o6 which states: " A litigant shouJ.d not be deprived ·of a hearing unless there has been something equivalent to misconduct or gross negligen~e on his part 11 • He arq·.J.ed ·:;hat vhat i.,ar,por,_ed on 4.3.1997 was just a brakdown in commenni- cation. Ii;; could not beterned as neeligcnce or misconduct. He prayed that he

r 3 should be giveri the benefit of doubt and t.he court .should exercise its inherent po;.;:;r6 an;;. ord e:~ th2,t the suit be restored. · On the liJ:;citation of time b 0 , arqu.ed. that time should start to run In responoe H:cu Ru+:s-:. 6 0 -'.·c-quc:i that tnE: trial mgistrate directed his -'Y mind ·properly or. the la,,.r~ t-1:r~ Rti.tenge ·appears to have aba11donec.~ tt.:.0 atternati ground he arqu2d in the lov,er 'ourt, ·tb,,t thc:r0 was no sufficient cause• Bafr· me his argume1i. was based exclusively on the ground that the application be:i. .,·. the trial magistre::s was time:; barr9d. He argued strongly that the crucial question if; whother the applicaticm i·,hich was filed in the subordinate court was a proper a:,,li,'.'l.tion. He argusd that under part three cf the schedule t;_ the Law of Limitation Act, 19ri1 such an application should be made witain 30 dayso Tirn8 starts to run on the date of the orc:.ero The applcation for an xnru ·te ore.er was filed 42 days after .the dismissal o- The prorer aprlicatfon in such circumstances is the application for leave t,-;: file his application out cf time. lfr.Rutenge maintained that the applicatior. which w2..S fiJ.0d in th<~ su:::>ord•ina.te court wa.s time barred, and since the provi ., sions of the Le.w of Limitation Act are mandatory they should be adhered to. l For this reas0n the appe2.l should se dismissed \·lith costs.· There are t,-10 1 issues for determinaticn in this appeals namely:- ( 1) VJhether the application before thE: trial magistrate was time barred. (2) Whether sufficiont cause wr~s shown for the setting aside the ex - pa.rte order. I will start ·-,1ith th12 issue of the period of limitation prescrised .for an application for an order to set 2.side· a decred passed ex parte. I tern 5 c part 111 of the first scheo.ul0 to the La,v of Limitatfon Act, 1971 prescribes period of thirty days for a.'1 arplication for an order under the civil proced.. code, 1966 tc et aside a decree passed ex parte- Thus in this case the Ar-p·. had thirty cl8.ys ·,,.,ithin which ·co apply for an. order to set aside the ex uarte ... :

4 It is not in rJ.isputc that the application for an order to ·set aside the ex parte jodgment •.:nh:::-,.J on 24.3.1997 was filed on 7.5.1997i that is 42 da.ys since the date of the exparte judgment. It J.S also not dfaputed that Mt-( Maftah became aware of the existence of the ex pat-te judgment on 24.40199' 1 Hence if time started to run sihce the dc.te of the ex parte judr.·;tnen~ o.s Mr. Rutenge maint:-.ins, th::-m the a.pplicn.tioh ;,,ms time barred.. On the other hand; if time started to run on t',c de,L, on 1-!hich Mro Maftah because aware of the existence of th2 ex patte juds"111ent, then the application was in time., I An ex pa:cte judgment is a. valid judgment 1.n every respe4it and can be executed e:n E',:'.1.j' d.cty from th(, day it wa.s delivered. Ho'i\lere there are a nurilbe:, authorities to the effect that Hheh an sx part€: judgment 1.s cha:Lie:nged by th( party who was not present i,1cn if 1:,as ddivJred; the time; for the purposes ( che:llengi::1.g it stc1.rts tc in from the day when tr.at party v-.1ho was not present became a.ware of its xistence. 1'he sc,id nuthorit1.es include the following+ (2) SUl!JIT s·.NGii TOOP. T/A FRArK :SES'I'I'J 1 0- c :x Vo BABLA. & GAJJAR AUTO GARACJ~ (1968) HCD Ro 292. (3) DR.N 0 DAYA; ADrlII\iIS'.!:i.:.il..TO~ OF II.Ho TIL; AGil<HAN IIOf3PITAL. DAR ES SALAAM V; ToSANGA {1968) HCD l<o 353. (4) Kv/BYAHBAH QUAIO:J~ v. 'rm~ NATIONAL INSURANC'i~ CORPO~TION .(T) LIMI'I'rD,-DSM HIGH COUR"l' CIVIL CASE NO.; 71 OF 1994 (INREPOR'I'ED) • Thus since Mr.ti' ,r,fr,,fte.h became aware of th0 existence of the ex parte judgm0nt on 24c4,.1997 and filed his application on 7 • .5.1997 the prescrised :period of 30 days f'..,'?,d not expired. That ~ppiication carirtot be said to be t:. I now turn to consider the second issue, . that is 1-1hether sufficient cc:· for the setting aside the ex -parte Judgment was sho.,.m ln his brief ruling -· learned trial magistrah said. n Upon going throu{:h thP. submissions of the learned c·ourisel 1 find nobMis for g:rc111ting the a:pplicationv :t wholly adapt the submission of Hr. Rutcnge, iearned c·ounsel for· the Respondent. The c.i:pplication is dismissed with costs••t. The rclev2et pert of Mr. Retenge 1 s ~rritten submission is as foilo/59° •.• 5/.

.5 n You:c Honour, 1 pray that this application be dismissed with cost 9 because the same is time barred. The pro1K,r appl::i.ce..tic-n be:fc . .-e thi.s honourabie court should have been an-application for leave to file this application out of Your Hon.01.-:.r: In th:2 ALT:NATIV:i but without prejudice to the foregoir:..::;, 1 humbly submit that the reasons advanced b•-r ;:cy lea~~n-::,d f::·i. ,:.1d for .restcration of the suit are not o::mvincingo In short, in law, !hey cannot. constitute sufficient caus;; for no ..... appearance 11 • It is· n·,t clear the ground on which the learned· trial me.gistrate based hi1c - decision. The ?..rgum-snt th :..t t..: application was time b?..rred is net tenable as indicated ab_ove. Mr. Maft.e.h has argued strongly that his non - appearan•:1 on 24 .. 3.199'7 was due tc comme"lnir2:tion· breakdown between himself and the trial magistrateo · Pt , fr.· •-iEt _-'-'.,. :.rlvcate for th,~ Ibsponderit was also absent on triable isst: =?S ) ?.cl the loarncc. t r:i.c.l mar;istr-2,te directed his ·mind to the issue of whether there ,-,as s-1.ffici·;nt couse for Mr. MaftahPs non appearanc.e on 24.3.1997 he w<"'i.:.ld pro·:,ahl? have given i"ir. Ivlaftah the henefit of doubt. For these reasons +,he apr,-Jal is allowed, the ex partc decree is set a.side. The suit be tried on· tb~ merits., Ccsts to aside the result of the suit• SGD: MWITA,JUDGEo , 30/10/98. Delivered in Char;,bers in tht- presenc': - of lfr. Rutenge advocate {or the responcl~- an Jamal Hamdan, the Applicant thj A 3,-th day of October., 1998. I Certify th3.t this is true < 1py of the Original. M-iITA,J • 30/1di98 ... . , 1 . • 1\ ' . . I l\ ; .. \'. / F .s -!:~W'.PUNGI_ DEPU'J:Y l°ltGISTRAR. 9/5/2000