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Hamisi Rajabu v. Masudi Simba. Civ. App. 255-M-69; 23/12/69; Seaton J.



Hamisi Rajabu v. Masudi Simba. Civ. App. 255-M-69; 23/12/69; Seaton J.

The respondent, the plaintiff in the Primary Court, was given judgment against the appellant. The judgment debt was not paid and a warrant of attachment was issued against his house. The house was sold. At the time of the sale the appellant was 20 miles away from where the house was, looking after his sick father. It was 18 months later before the appellant went to court to have the sale set aside. He claimed that there was no notice of sale published and that the sale was unlawfully carried out by the respondent himself, instead of a court brokers.

            Held: “There is a presumption that omnia rite acta sunt (all acts re presumed to be legal) but if it could be shown that these preconditions of sale were absent, the appellant would have a remedy. Such remedy is provided by Rule 85 (1) of the Magistrate’s Courts (Civil Procedure in Primary Courts) Rules, G. N. No. 310 of 1964, which states as follows; “85 (1) On application made within thirty days any person affected or of its own motion, the court may set aside a sale of immovable property if it is satisfied – (a) that there has been fraud or material irregularity in the proceedings leading up (sic) or in the conduct of the sale; or (b) that the judgment-debtor had no saleable interest in the property sold:- Provided that no sale shall be set aside unless the judgment-creditor, the judgment-debtor, the purchaser and any other person affected have been given an opportunity to be heard and produce evidence.” (2) “If it was really an appeal, it was much out of time. If it was an application to set aside the sale in execution, it should have been made to the Primary Court, as the “court” referred to in Rule 85 (1) of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules is defined in Rule 2 thereof.” (3) “It appears from the record that the respondent is a Primary Court Clerk. Thus he should have known the correct procedure and this Court would scrutinize very carefully to see whether he abused his position by taking advantage of the appellant. But, as the District Court pointed out, the third party who purchased the house has since carried out valuable improvements and settled in it as his home. In view of the lapse of almost 18 months since the date of the sale, it would be unfair to interfere with the purchaser’s possession unless strong reasons appeared for the delay.” (4) Appeal dismissed.

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