Pantaleoo Lyakurwa vs Leokadla Lyakurwa (Misc. Civil Cause No. 45 of 1997) [1998] TZHC 2205 (17 August 1998)

IN THE IDGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 45 OF 1997 PANTALEO LYAKURWA ........................... APPLICANT APPELLANT VERSUS LEOKADIA LYAKURW A.......................... RESPONDENT RULING KALEGEYA, J. I / ·v . This is a ruling in respect of an application by Pantaleo Lyakurwa for leave to . , • appeal to the Court of Appeal. An appeal to the Court of Appeal would be a 2nd (.,__..., '.,1.,.:- • appeal, having lost before Kimaro, PRM with Extended Jurisdiction, in an appeal against the decision of Kibaha Resident Magistrate's Court. The background to this matter runs as follows. On 10/7/95, the Respondent~ Leokadia :f:yakurwa having secured the High Court's leave filed a suit at Kibaha '"' Resident Magistrate's Court against Pantaleo Lyakurwa, Applicant, praying, among others, for recovery of land and possession of the house she allegedly constructed thereon and which the Applicant was refusing to vacate although he had been put in there simply as a licence by the former. On the date fixed for hearing (11/10/95) the \ ) ) Applicant did not make his appearance before the Court but duly notified it (in r,. writing) that he and Respondent had another case before the High Court at Dar es Salaam. The plaintiff (respondent) who was represented by Dr. Lamwai, Advocate, was allowed to prove her claims exparte by affidavit which she did. Applicant's application to set aside the exparte judgement was dismissed. Aggrieved the Applicant appealed to the High Court, which appeal was ·also dismissed (Kimaro, PRM, with Extended jurisdiction) hence the present application. Before this Court, the applicant defended himself while Dr. Lamwai represented Respondent.

. I \ ) 2 I have carefully paid due attention to the proceedings on record and the submissions made by both parties and I have surfaced with only one conclusion that this application is devoid of any merits. In refusing to set aside the exparte order both Courts were satisfied, and the records bear witness to those findings, that the. applicant advanced no sound reason for his failure to appear in Court when the matter was called for hearing. In both Courts and so was in his affidavit in this application, the applicant has persistently asserted that on the relevant day (11/10/95) he and Respondent were supposed to appear before the High Court at Dar es Salaam, in Misc. Civil Case No. 84 of 1995. The said Courts did not believe him and rightly so for his assertions are patently false. This assertion is reiterated in para 3 of his affidavit in support of his application and is supported with a copy of summons as annexture "B" which displays the contrary of what he claims. The said Ann. "B" shows that indeed the two parties were required to attend the High Court on 3rd June 1996 and not 11/10/95. In fact the same summons shows that he was duly served on same date 11/10/95. I have failed to understand why the Applicant is calling to his aid what is the contrary of what he is trying to establish. As rightly submitted by Dr. Lamwai, with the above situation, I cannot see the existence of any point of law or of facts mixed with law which deserves the attention of the Court of Appeal. For these reasons the application for leave to appeal to the Court of Appeal is accordingly dismissed with costs. Kalegeya, .J. 17/8198 Ruling delivered in the presence of Applicant and absence of Respondent today the 17th August, 1998 KALEGEYA JUDGE 17/8198