Kachemeeho Ng'waniwambi vs Stanslaus Machweke (Misc. Civil Appl. No. 10 of 1998) [1999] TZHC 453 (6 May 1999)
Judgment
lfilEMA, .. J •
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IN THE HIGH COURT OF .TANANIA ·
A:£-MZA.o
MISC. CIV. APPL. NO. 10 OF 1998
(Originating from Mwanza District Court Civil Appeal
No. 23/95)
KACHEtt3EHO NG'.lr/ANIHUMBI : : : : : : : : : : : ::;::::::::::: :APPLICANT.
Versus
STANSLAUS .MACHWEKE : : : : : : : : : ~ : : : : : : : ! : : ~ : : : : : : : : : : RESPONDENT
Ru L ..Ll'Li
'.the Applicant KACHEMEEHO NG
1
WANIHUMBI has filed a motion u/s 14(1) of
the L;i.m:i.;t,.a.tion Act, Act Noo 10..of 1971, and a:ny other anabling provision of
the ia.w for two prayers:-
(1) Leave to appec\J- out of time;
(2) Costs of the appiication.
As us,• the application is sported with an affidavit; and the main grounds
.
being that the learned appellate District Court of Mwanza entered ex-parte
judgement C?n 12/4/1996 in the fpplicant •s absence. That ~ came to know of
the judgement when the respondent and executive officer of the village went
to execute the judgement on 4/12/1996 by setting boundaries in tJie disputed
shamba. Then on 8/1/1997 the applicant went to court to purchliS copy of the
judgement being sought to be appealed thei"a· fro,ti'~ T!:9~ after tla.e purchase of · ... --
the copy of judgement he became seriously sick and was taken to a traditional
healer and for that reason the delay was.beyond his control. According to
the applicant if this application succeeds he confirms that his appeal has
overwhelming chances of success.
In turn the respondent Stanslau ~acbl1e}e has strongly objected to the
application·saying that;the applicant, his closest neighbour, has never
·fell sick and went to a traditional healer. That his affidavit is false
because he has not supplied reasons as why he was never attending court and
at the end the magistrate decided to give judgement ex-parte.
It is true, as contended by the respondent, that the applicant•s
application is unmantainable, both in law and fact, for the reasons I
immediately propose to give.
... 2
have gone through the appellate district court proceedings with a
o examining and satisfying myself the circumstances which led to
passing of the judgement ex-parte against the applicant-respondent.
On 16/11/95 it is clear on the district. court record that both the parties
were prese:.1t r, .. - "'··::-e Wambura<.Mret) ,' '-•· ,1.n--- ... ,, learned Senior Resident agistt-ate
(as then wa.$) and the applicant-respondent was directed to file a written
answer/rep:J.y t.., Lh grounds of appeal. It is also clear fr.om the record
that the applicant complied but after the date both the parties were required
to attend court on 30/1,1/1995• Yet, on this latter date (30/11/95) h<3
applicant never appeared in court ·to explain why he never _c::-'.:'t:ii•d ,wHi tij.e
order of the court •. Though the court's order of 30/11/95 directed that the
applicant-respondent ·should on or before 14/12/95 have filed the necessary
l!'eply 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 judgement' ex-parte.
The on 19/6/1996 the decree ho.lder filed a chamber motion seekin 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 that the 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'record depicts,
he entered appearence on 15/10/1996 and the application was adjourned 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 ~ffect that there was no appeal against Mrs. Wambura
1
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 even.ts 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