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Judgment

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2 - I have gone through the appellate district court proceedings wih a view to examining and satisfying myself the circunistances which led to passing of the judgement ex-pa'te against the applicant-respondent. On 16/11/95 it is clear on the district court record that both the parties were present before Wamburadró)', learned Senior Resident Magistrate (s'then was). and the applicantrespondent was directed to file a written answer/reply to the groundsof appeal. It is'also clear from, the record that the applicant complied but after the date both the parties were required to attend court on 30/11/1995. Yet, on this latter date (30/11/95) the applicant never'appeared in court to explain why he never FlidW1th the order of the court. Though the court's Order of 30/11/95 dice cted that the appl i cant- re sponde nt should on or before 14/12/95 have filed the necessary reply that was not done, the applicant did it on .22/12/1995. The matter was then set for hearing on 10/1/1996 but both the parties never attended court. Since then the applicant went' on missing and on 19/4/1996 the learned appellate magistrate decided to.give judgei'nent ex-parte. The on 19/6/1996 the decree holder filed a chamber motion seeking to execute the judgement of the district court. The application was supported with an affidavit. This time, Mr. Mzuna, learned Resident Magistrate before when the application was set for hearing did not prefer dealing with the application ex-parte. He ordered thatthe applicant-respondent(judgement- debtor) should be notified. On divers of dates the application continued to be adjourned because of the absence of the applicant. As the'rcor'd depicts, he entered appearence on 15/10/1996 and the application was 'adjoirne'd to hearing on 30/10/96. Then on this latter date the application could not proceed as the decree holder was reported sick, but the present applicant (respondent) was present. And when both the parties were present on 12/11/1996 the court heard their application. ' The distriet court allowed the application for execution giving reason to the effect that there was no appeal against Mrs. ,iambura's judgement nor any application for stay of execution. Mr. Mzuna directed that execution should take place. There was no appeal against this Ruling which was given on 4/12/1996 in the presence of'both the parties. Clearly from the sequence of events it is apparent that the applicant has deponed a false affidavit to claim that he came to note of..the judgement dated 12/4/96 when the respondent and executive officer of the area in which the disputed shamba situates went to put boundary dermacation on the said land, i.e# after the Ruling of 12/4/1996. That is not true because, as already shown above, the applicant was present in court on, 15/10/96, which ..,,../3.

-'3 -. was well before the application was heard and determined. And on 12/11/1996 he was present and canvassed against the application. Also on 15/11/96 it is on record to the effect that both the parties were. present when the learned, trial magistrate visitQd tie shamba in dispute and, indeed, that was before t.heRuiing on 1+/12/96. It is not true, therefore, that the applicant was not aware of the judgement before the Ruling on 1+112/96. • '. That is hot alt. The applicant did not show why he was not attending court from 16/1.1/1995 which led to ex-partejudgement passed against him. Had he been attending court between 16/11/95 . and 12/4/96 he would have noted • ... .. when the judgement was passed, or would have stopped ex-párte judgement being' S • . passed.against him. Even after that judgement was passed against. him there .........s no 'evidence that he was following up the matter and particularly when he 4new 4 that he had a case (appeal) in court. His alleged 'sickness was not b?twee' 16/11/95 and 1/1+/96, or between 12/1+/96 and 15/10/96 when he rfaced in court to answer the application for execution of judgement . From those factst.am satisfied that the applicat's affidavit is an after" thought and on that premise the application must be dismissed, as I hereby do, with costs. ATZA . AC. MiREMA in the presence of • • JUDGE both parties. 6/5/99 Ihereby certify that this is a true copy of the Original DISTRICT-RT ' MWANZA. •

Judgment

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i- . - •
2 - I have gone through the appellate district court proceedings wih a view to examining and satisfying myself the circunistances which led to passing of the judgement ex-pa'te against the applicant-respondent. On 16/11/95 it is clear on the district court record that both the parties were present before Wamburadró)', learned Senior Resident Magistrate (s'then was). and the applicantrespondent was directed to file a written answer/reply to the groundsof appeal. It is'also clear from, the record that the applicant complied but after the date both the parties were required to attend court on 30/11/1995. Yet, on this latter date (30/11/95) the applicant never'appeared in court to explain why he never FlidW1th the order of the court. Though the court's Order of 30/11/95 dice cted that the appl i cant- re sponde nt should on or before 14/12/95 have filed the necessary reply that was not done, the applicant did it on .22/12/1995. The matter was then set for hearing on 10/1/1996 but both the parties never attended court. Since then the applicant went' on missing and on 19/4/1996 the learned appellate magistrate decided to.give judgei'nent ex-parte. The on 19/6/1996 the decree holder filed a chamber motion seeking to execute the judgement of the district court. The application was supported with an affidavit. This time, Mr. Mzuna, learned Resident Magistrate before when the application was set for hearing did not prefer dealing with the application ex-parte. He ordered thatthe applicant-respondent(judgement- debtor) should be notified. On divers of dates the application continued to be adjourned because of the absence of the applicant. As the'rcor'd depicts, he entered appearence on 15/10/1996 and the application was 'adjoirne'd to hearing on 30/10/96. Then on this latter date the application could not proceed as the decree holder was reported sick, but the present applicant (respondent) was present. And when both the parties were present on 12/11/1996 the court heard their application. ' The distriet court allowed the application for execution giving reason to the effect that there was no appeal against Mrs. ,iambura's judgement nor any application for stay of execution. Mr. Mzuna directed that execution should take place. There was no appeal against this Ruling which was given on 4/12/1996 in the presence of'both the parties. Clearly from the sequence of events it is apparent that the applicant has deponed a false affidavit to claim that he came to note of..the judgement dated 12/4/96 when the respondent and executive officer of the area in which the disputed shamba situates went to put boundary dermacation on the said land, i.e# after the Ruling of 12/4/1996. That is not true because, as already shown above, the applicant was present in court on, 15/10/96, which ..,,../3.

Kachembeho Ng'awanihumbi (Misc Civil Appeal No 10 of 1998) [1999] TZHC 250 (6 May 1999)

Judgment

Discussion

Kachembeho Ng'awanihumbi (Misc Civil Appeal No 10 of 1998) [1999] TZHC 250 (6 May 1999)

Judgment

Discussion