Melau Kosia vs Masai Metemi (PC Civil Appeal No. 41 of 1990) [1991] TZHC 2430 (16 September 1991)

, .· IN THE , URT '., · AT ARUSHA . . 1 '· ... (f>C) CIVIL. APPEA.t:'NO'.: 41 .....;.,.;;..:......;;.;;;;~..;,--.....,.----------- . -~ (From the decislon• of t:he,I;)lstrict·court of Arusha at Arusha in Cj,.vil hppl.No., 13) o_f 198~ - . BEFORE: ·s. N, MTUI, Esq., P/District Magistrate) ----·-· .... - . MELAU KOSIA •. . ~ •••• ~ •••••••••••••••••••• APPELLANT (original Respondent) 'versus ! ·····················••o•oRESPONDENT (Origi-nal Applicant) ·:·.JUDGEMENT. MUNUO. (MRS ) , J. --------- .... - .. .,,,·- . 1 I . This is an appeal against the .decision in Arusha District . -, . :Civil Application No. 10 of 19,89 ori'ginally Kissongo Primary Court·'• '' , Civil Case No. 49 of 1988. In the .sai:d primary court the plaintiff. . . · . - '. 'Mel au Kosia suci for recovery of. a brdet' p.arcel of land allegedly .. ·,. ~ .:1 l ., . • • • . ,' .. { • • 1't tre·spassed upon by ,the .defendant who crossed -:,ver the border.· Owi$ ·;tfo 'the default ·6f th~ defe~.dan_1:., ·in appearing en the. 24.1 .ee' the, :t fprimary court proceeded exparte and ·enteJ:ecl'.'an ex parte judgement / • j,.,._ :,. j • ~ • ,.I ••• 1 i)ri the 29.5.89 the:rby rl.wing the plaintif to recover the bord'r1 .,:,. parcel of land measur.ing .?OS pac:es· x 6:0 paces plus Shs. 21, 790/= cos.• · ,.y' - · ·In;=;tead of a'i)J:;lying t,., set aside the ex parte judgement in : ,:i , , . ' . . ' ~ . ,, the primary. court, the defendant: :filed Civil Applic•at10n Na. 10 o.f .;u :-: ·:seeii:lg. n.llifiati of_ the primary court pro_ceedings and judgem~;,~ j~• . . .. /··:•on th.e gr_ound .that he had nnt been served with the nl")tice for .,f j,:~~arng h'the 24.1._89 so the- ex parte proceedings were a nullity. ·~~- f\ic e bis trict" Court allowed the' application. Agrieved by- the _: i, :d'ecision of· the District Court the plaintiff pref.erred the present 1 ~ . . . :> .appeal. In his written submission Mr, Lobulu, learned advocate for appe_llant stated that the District Court's interference with ex parte judgement 0f the primary court was bad in law beaause•: ·.' ;\ tqe application was time barred under The Cus tornary Law (Limi tatiori-f ! , ', ; • ,. ► • • • • • • . -, . t- .. :i roceeding) Rule 2 item ·of Government Nntice No., 311 of l which :~ 1 i~:' . • • .,. , . l ,', . 1 i;E;guires: S.._ch application to be filed within 6 weeks of the date _o~<: ,f1te ex. parte judgement whereas in· the present· case the application "): ~ ' . ra~. ,,filed after 26 weeks of the date. of judgement. !;,,. ·;' /2 He further •••••••••• '.<1,:1;.. "' , · .. iit,,1,,

2 He further criticized the·. learned Principal D:• ;:- tr:-ict Magistrate for granting a temporary injuncti0n after terminclting the. su;,stanti ve suit.which meant there·Was no t.n.ibstantive suit anymore so the . . . . temporary injunction was bad in law.· It is Mr. Lobulu 's view that having nullified the.proceedings and judgement 0f the trial court, the District Court ought -o have 0rdered a trial de nova to enable • the land dispute to be· resolved. •' Mr Mwale learned advocate f,.,,r the respondent tendered a written submission supporting the· decision of the learned Principal :District Magistrate in Civil Applicati0n No.; 10 of 1909. Mr. Mwale also faulted the Court of Resident Magistrate f0r.retransferring -the suit to the primary court when he had applied f,.,r leave under section 63 to have the suit filed in by the Resdent Magistrates Court at Arusha. The issue is whetne.r the .applicati,.,n for . . ,,.... . . . •·' nullifying the substantive suit was _properly before the District Court. . . : . 'J,'lie · Primary C0urt proceeded x. pa.rte under Rule 27 -,f the . ' . Primary Court Civil Procedre Rules,. 1964 on the default ,.,,f the defendant \4ho had been duly htified of the h,earing date on the 24 .1 .89. If the defendant was aggrieved hy the ex parte judgement, • ~ • : I his solution would be in Ru-le 30 of the __ Prima.r.y V1Urt Civil ' .. '. Procedur,::: Rules G.N - 31C o:f._ 1964 which states~ -' "Rule 30. (1) where a claim has been proved- and tl"te decisin given agains.t" ·a defendant in his absence~ the ·. i: . .. . de:f1:ndant mai; ·subject 'co ·;the ?rovisions nf any law for the time bein? in_ f?rce ;r~\ating to the limitation "of Ef..<2...CJ-:.eA-1.12.9!i· 2 · appy to t}i court for an nrder to set aside. ~~s_sision a·nd if the c,.,,urt is satis'.fied that the summons was not d,uly _se-ve ~ _0r t;ha the defendant . . : r! .. . . ... . was prevented ·by any sufficient cause from appearing when the proceeding was called on for .he,aring, the court shall mak'e a~, n.rd·e·r. stting asde the decision . .. . ,: ·. as against such defendan~ upon such terms as it shall think fito .. (2) Where an applfcati,.,,n is made under this rule, the court shall appoint a day frir tl)e hearing of the application and shall give the clai~ant and other parties to the proceedi•ng, if any, notice of such hearinsi;. '' Under the ••••••• /3

3 .Under the above Rule 3e the defendant ought t~ have filed the application to set aside the ex ;arte judgement in the primary court which gave the ex parte judgement~ That being the position the appiication was not properly befnre the District Court because ' it had not given the ex parte judgement cnmplai'ned against so it is hereby ,quashed and set aside. That ·reason is sufficient tn dispose of the appeal.' It should be noted that the ex r,arte judgeinent was r,a•sftd on the 22.2•89. Execution of the Decree wai ~ffe¢ted on the 15.S.89, ver a year ago so ah application to set aside the ex parte judgement would in any event have been overtaken by events in addition to such an application being time barred. In the light of the above the appeal is allowed with costs. It is so Ordered. At Arusha this 16..;.9-91., Appellant: Mr. Lobulu for Respondent: Mr. Mwale for ... E. N. MUNUO (MRS) JUDGE 16..;;~~91 . ~ ./? ·±'' Cf ( (_ ,· ~/ '- N. "~uo ,(M 1 S) , JUDGE 16-9-91