SAIDI RAMADWANI MNYANGA v ABDALLAH SALEHE 1996 TLR 74 (HC)

 SAIDI RAMADWANI MNYANGA v ABDALLAH SALEHE 1996 TLR 74 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Msumi J

D

CIVIL APPEAL NO. 38 OF 1990

7 June, 1991 E

(Application for leave to appeal)

Flynote

Civil Practice and Procedure - Leave to appeal - Application for - when granted. F

-Headnote

This is an application for leave to appeal to the Court of Appeal, arising from an order

of Masanche J refusing to admit the appeal to hearing and duly striking it out of the

registry. The subject matter of the dispute inter partes relates to land. G

Held:

(i) Before entering default judgment, the trial magistrate ought to have

invited the plaintiff to prove his case ex-parte.

(ii) The holding that the appeal to this Court is time-barred is contentious,

and accordingly cannot be disposed of summarily without hearing the parties'

submissions on the question. H

(iii) The matter raises contentious issues of law and is a fit case for further

consideration by the Court of Appeal.

Case Information

Application granted.

[zJDz]Judgment

I Msumi J: This is an application for leave to appeal to the Court of Appeal. The

matter came to this court as an appeal from the Dis-

1996 TLR p75

MSUMI J

trict Court. For reasons stipulated in the Order, this court presided by Masanche, J A

refused to admit the appeal to hearing hence ordered it to be struck out of the

registry. In this application the applicant is seeking leave to appeal to the Court of

Appeal. In support of this application the learned counsel advanced three arguments.

First he pointed out B that the land in dispute was unregistered and so the matter

ought to have started in primary court. The trial District Court had no jurisdiction on

the case. Secondly, he is submitting that since the subject matter in this case is land,

judgment in default could only be entered after ex-parte proof by the plaintiff. There

was no such proof in the C present case. And lastly the learned counsel is

challenging this court's holding that the rejected appeal is time barred.

It is evident that the land in dispute is unregistered. This fact has been conceded by

the learned counsel for the respondent. The second complaint is equally strong.

Before D entering judgment in default, the learned trial magistrate ought to have

invited the plaintiff to prove his case ex-parte. And lastly the holding that the appeal

to this court is time-barred is contentious. It cannot be dismissed summarily without

availing opportunity for submission of the parties. E

In conclusion, I am of the considered view that the three arguments raise contentious

issues of law. Hence this is a fit case for further consideration by the Court of Appeal.

The application is therefore granted as prayed. F

1996 TLR p76

A