Mtondo v. Janmohamed Civ. App. 21-D-70; 8/10/70; Biron, J.

Mtondo v. Janmohamed Civ. App. 21-D-70; 8/10/70; Biron, J.

This is an appeal from an exparte judgment passed by the Resident Magistrate Lindi upholding the respondent’s claim for Shs. 1,657/50 being the price of vehicle sold and delivered to the appellant. The appellant did not appear for the hearing his explanation asset out in the memorandum of appeal being that although the summons was served on him by the process server in Kilwa where he lived at the time, neither he nor the process sever could read English; that he was told the hearing would be in Kilwa so that he failed to attend court at Lindi where the ex parte judgment was passed against him in his absence. It was submitted by the respondent the proper course was for the appellant to apply to the Resident Magistrate Lindi to set aside the ex parte judgment under Order 9 Rule 13 of the Civil Procedure Code: that the court was not in position to deal with the merits of the appeal at this stage.

            Held: (1) “I fully agree with the submission of [the Respondent and therefore I do not propose to deal with the substantive merits of the case.” (2) “The position, however, is rendered difficult by the fact that he appellant was, and is, unrepresented by counsel and has not had any legal advice. I think that the appellant should have been advised by the Court of the Resident Magistrate Lindi, before which he appeared on the 30^th of July, when he notified his intention of appealing, that his proper course was to apply to set aside the exparte decree. I would go further and say that, as the appellant was unrepresented by counsel, I was the duty of the court to give him such advice. As the court has, in my view, failed in its duty to assist a litigant unaided by counsel, I propose to make good such failure of the court, and now advise the appellant to file an application in the Court of the Resident Magistrate Lindi, to set aside the ex parte judgment and decree, under Order 9 Rule 13 of the Civil Procedure Code, and I duly extend the time for him to do so.” (3) “The position is, however bedeviled by the fact as the appellant now informs me, that he no longer resides in Kilwa, but resides and works here in Dar es Salaam, and he has neither the means to go to Lindi, nor to brief counsel there. The only way out of this impasse, as I see it, in order to do justice, although I must confess I am not entirely convinced of legality of the course I am taking, I grant the appellant leave to apply to have the ex parte judgment and decree set aside by post, supported naturally, by the requisite formal affidavit. Even for the preparation of his application by post, the appellant would require legal assistance, and I have told him to call at his Court to collect a copy of the judgment, and the Court will Endeavour to obtain legal assistance for him from the Legal Aid Society, though I must confess I fail to see how the Legal Aid Society could have him represented by counsel in Lindi, as, so I am informed, there is only one advocate in Lindi, and he represents the respondent.” (4) “Leave apply to have the exparte judgment and decree set aside by post granted.”