HALIDAY NAJEEB V. MOHAMED SHATRY & OTHERS . Misc. Land Application No. 2 of 2021 HCT
- robertmatama2
- Feb 14, 2024
- 2 min read
The applicant sought to apply to the Court to set aside the exparte judgement and hearing that was conducted in his absence and also to obtain leave from the court to file a written statement of defense.
It was adduced from the submission that the applicant WSD was strucked out on the ground that it was amended beyond the order of the Court and it had an offensive paragraph, hence leaving his counter claim that was determined in his absence.
The major claim of the applicant was that he was not afforded the right to be heard.
The application to set aside the afore mentioned exparte judgement was made under Order IX Rule 9, Order VIII Rule 15(1) and (2) (a) (b). Section 3A and 3B , Section 68 (e) and 95 of The Civil Procedure Code, Cap. 33.
From the word of Section 3A and 3B of The CPC the applicant argued that the offensive paragraph was curable and hence the court had to expunge them out from the WSD and proceed with the determination of the matter rather than strucking it out.
HELD.
The court ruled that the alleged claim advanced by the applicant that he was not given the right to be heard were the ground for Appeal or Revision to the Court of Appeal and not for application to set aside the default judgement.
And therefore since no sufficient reason was advanced to warrant the application the court dismissed the application.
OTHER RELATED CASES.
REGISTERED TRUSTEE OF PENTECOSTAL CHURCH IN TANZANIA V. MAGRETH MUKAMA.
"Exparte judgement may be set aside only if the debtor assigns the good cause that prevented him or her to appear on the date fixed by the court"
EAST AFRICA POST AND TELECOMMUNICATION CORPORATION V. M/S TERRAZZO
" Appearance under the meaning of Order IX Rule 1, means attendance in person or by an advocate in the fixed date stated in the summons"
MOSHI TEXTILE MILLS V. DE VOEST
" There is no appearance if the party neither filed a Written statement of defense nor appeared personally or by his advocate"
" Exparte judgement means a judgement given when there is no appearance by the party against whom it is given"
Read more Order IX of The Civil Procedure Code.
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