Mandi s/o Mtaturu v. Mtinangi s/o Mtinangi, (PC) Civ. Applic. 2-DDM-72, 24/5/72, Mwikima, Ag. J.

Mandi s/o Mtaturu v. Mtinangi s/o Mtinangi, (PC) Civ. Applic. 2-DDM-72, 24/5/72, Mwikima, Ag. J.

The appellant originally sued the respondent for recovery of brideprice and obtained judgment ex parte in the Merya Primary Court. When it was being executed, the respondent went to the Singida District Court requesting leave to appeal out of time, which proceeded to decide the appeal on its merits in favour of the respondent.

            Held: (1) “In its error the Singida District Court embarked on deciding the appeal on its merits without first determining whether the delay was excusable or not. The decision it ….. Made reviewing the original court judgment was therefore made without jurisdiction. The appeal court would have been competent to look into the merits of the appeal only after deciding whether or not to grant the respondent leave to appeal out of time.” (2)”Furthermore the application was brought prematurely since the only way to seek to avoid a judgment ex parte is to apply to the very court which made the order. In this case, if the respondent was aggrieved by the ex parte judgment against him, he had to approach the Merya Primary Court and convince it that he had sufficient cause to be absent at the trial and if he succeeded, then the matter would be determined in the same court without resorting to a court of appeal.” (3) “In the event therefore, the Singida District Court decision is overruled and set aside. The original Judgment ex parte will hold until the Merya Primary Court has decided whether to set it aside and hear the parties afresh or not.