20180918 TZHC Mwanza

. ,- . . '' IN THE HIGH COURT OF TANZANIA IN THIE DISTRICT REGISTRY ATMWANZA HIGH COURT CIVIL APPEAL NO 60 OF 2015 \ . . {Arising From Nyamagana District Court Civil Case No 47 of 2013} ALIANCE TOBACCO TANZANIA l TD .. aaa- ■••••■■ ••···APPELLANT VERSUS MARTIN JOHN MWITA ................... uaa ■ aa ■■■ ••···RESPONDENT JUDGMENT 31.08.2018 & 18.09.2018 Matupa,J. This is a simple appeal. The issue before the court below was . . whether the appellants -were entitled to have an ex-pa rte judgment, which the_ respondents· ·obtained - ag~inst the appella·nts, ·set· aside. Mr. 1 I I t Nyawambura advocate who represented the appellants here on appeal as _1) he did at the hearing of the application to have the decree set aside before \" ' the tribunal below, strenuously contends that there was no effective service, as such, they were entitled to have the ex-parte decree vacated by · the trial court. On the other hand, Mr.· Muhingo, learned advocate who rep~esents the respondent says that there was effective service and as such, the decision of the trial court to decline the application to set aside the decision of the trial court was in order. The learned counsel for the appellant has filed the following grounds of appeal: 1. That the trial magistrate erred in law and in fact for failure to set aside default judgment and not ex-parte Judgment which was arrived at with material irregularity. 2. That the trial magistrate erred in law and in fact for failure to summon the alleged process server on the refusal of the appellants to accept the court summons and plaint 3. That the. trial magistrate erred in law and in fact for failure to see the fact that the substituted service published through Mwananchi so microscopic and was aimed at defeating justice on the part of the appellants 4. That the trial· magistrate erred in law and fact. by. awarding the respondent general damages_ tp ·the tune of Tanzanian shillings· Twenty Million one Hundred ten Thousand shillings thirty five (Tshs 2(1✓ 110035) without establishing the basis of the basis of that decision. · 5. That the trial magistrate erred in law and in fact for failure to indicate expressly as towho is the responsible to pay the awarded damages. 6. That the trial magistrate erred in law and in fact for failure to take into consideration evidence on record from the appellants who . . testified that they did not receive any summons thus condemning them unheard Looking at the grounds of appeal, the fourth and fifth grounds go to the merits· of the suit below the court below. These were not properly incorporated in the present appeal. Understandably, the learned counsel did not belabor on them, as much_ as the first ground of.appeal, which he prayedto·abandon. On the second ground of appeal, the learned counsel invited the court to order XXVIII r. 2(a) and (b) of the Civil Procedure Code which directs that the service has to be affect~d on corpo'rations. It was his argument-. that in terms of order IX r.6(1)(3) service becomes effective when it is ·served on the corporation Secretary or the· . . 2. Subject to· any written -law regulating service of process/. where the suit is again~ta· corporation/ fhe summons may be served-·· 3 (a) On the secretaf'½ or on any directo,~ or other principal officer of the corporation/ or (b) by leaving it or sending-it by post addressed to the corporation at the registered . office or, .if there is no registered office, . then at the place where the corporation carries on business. . 6. (1) Where the plaintiff appears and the defendant does not appear when the suit is called for hearing then- (iii) If it is not proved that the summons was duly served, the court shall direct a second summons to be issued and served on the defendant/ If I understood the learned counsel well, he seemed to suggest that one, there was no evidence that the summons in the present case was served in compliance with order XXVIII r.2 (a) and (b) as if at all it was served, then the service was not effected on the secretary, director or principal officer of the corporation as the rule directs. The learned counsel · submitted that the evidence, which the ·trial court had, was that the respondents served the driver ·of the defendant. This was not service in terms of the rule. He also suggested that since there was no such service, in terms of order IX r.6 (iii) it was incumbent on the part of the court to· · di~ect a secon·d service before granting ex:.parte proof. The learned counsel -urged the court to step into the shoes of the court bels,w and do what the 4 . court was supposed to do. On this, the learned counsel invited the court to the case of Ali Abdallah and another v Ali Hussein Sifudeen 2004 TLR 313 at 315. Mr. Muhingo on the other hand persisted that there was service which was effected at the first instance. As such, there was no need for the . . second service. It was also the argument of the lea~ned counsel that the· burden to call the service server to prove that there was service, laid on the plaintiff. Mr. Muhingo conceded though that, substituted service. in the present case was not called for, as there was no evidence that the appellants were avoiding service. It is true that the court below did ·not deal with the question of service adequately. The appellants do not have a good argument on the import of order IX r. 6. This is because, it would appear, when the trial court formed the view that the defendants were not served, it proceeded -_to order substituted service by way of publication. I ~m not satisfied with the arg·ument that the publication was "microscopk'' as the learned. counsel . contended. This is because . he did not produce here· in this court, . the · original copy of the newspaper. Instead, he demonstrated a photocopy of it. This photocopy, in· the absence of the original, could be anything. With 5 the technology in the print industry one can manipulate the fonts by ,--, enlarging or reducing them. Coming back to the argument . of service, . Mr. Muhingo has conceded . that the second service, apparently under order IX rule 6, which was done by way of substituted service by way of publication, could not be effective, in the absence of proof that the defend_ants were· avoiding service. This is the right position. It would appear, the case for the applicant is that the defendants did in fact serve summons to a driver at the office of the applicant. In doing so, they did not attempt to verify with the driver that he was in fact the officer responsible to receive the summons or that were ambivalent to the fact. The applicants are complaining that the driver did not deliver the summons to the intended officer. The respondent did not controvert this position. This brings _me to the case of M B Automobiles v Kampala Bus Service [1966] 1 EA 480. In that case the court was faced with a situation where the issue-of . who was in fact seryed with the summons . was the manager of the company. There was ·clouded evidence on this issue. Whereas the 6 process server contended that he did not know one "Sabani" the manager / .."'x:i and proprietor of the defendant, there was evidence to suggest that he knew him and his name was in fact Shabani and that they used to go for prayers at the same mosque. The court was satisfied that the affidavit of Musa Umar Amreliwalla the process server, was a perjury. The court Sir Udo Udoma insisted at page 485 that:- ".. .In my opinion the provisions of 0. 27, r. 1 and r. 3 (b) present no difficulties in this matter/ an(l to that extent are irrelevant and do not offer any assistance in the resolution of the issues in controversy in this application. I accept with some qualification having regard to the requirements of the provisions of 0. 5, r. 17 of the Rules of this court, the proposition contained in q. 5, r. 1~ para. 3/ at p. 2159 of Chitaleys Commentaries on the Code of Civil Procedure/ Vol. II, to which I was referred by counsel for the respondent~ that: "There is a presumption of service as stated -in the process-servers report and the burden lies on the party questioning it to show that the -return is incorrect.. ,✓ Even so/ as stated in. the proposition itself such a presumption ls . rebuttable. Furthermore,. in ·the second paragraph of the . proposition referred to, it is stated that.it had been held by the Calcutta High Court that the report of the serving -7 officer that the summons was served on a person was not evidence as to service unless the serving officer was examined and the service proved. The l~arned counsel for the applicant addressed me on this part of the case but he slightly misunderstood it. The practice is that where the court finds that the evidence of service is inadequate as was the case under refer_ence, it may call for evidence to satisfy itself on the question of service in terms of order V r 19 ·which states as follows:- 19. Where a summons is returned under rule 17 the court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and ma~ if it has been so verified, examine the serving officer on oath; or cause him to be so examined by another court touching his proceeding~ and may make such further inquiry in the matter as it thinks fit; and shalt either declare that the summons has been duly served or order such service as it thinks fit. The learned counsel suggested that the witness was not cross- examined on service. Probably, the learned· counsel -had in mind the procedure under this foregoing rule, which enjoins courts. to inquire on service to assure. that effective service is done before moving an order for . ex-parte proof can ·be made.. . 8 In the present case, there is evidence that it was the driver who was ,.---\ . served and not the officers envisaged under order XXVIII. As such, like the observation of Sir Udo Udoma in the M B Automobiles v Kampala Bus Service case, I find the case instructive on the fact that where a suit is against a corporation, it is not enough to show that some person in the compound of the business of the corporation was served. There must be clear evidence that either of the envisaged officers was in fact served as it happened in the case of MB Automobiles v Kampala Bus Service. The service on the driver in the present case was not adequate. Once the trial court was satisfied that there was no effective service in the first place; and since there was no evidence that the officers of the defendants were avoiding service, and also that the premises of their business were known to the plaintiffs, I do not find that it was reasonable to order substituted service by way of Publication· as the court did~ Sarkar, commenting on rule 17 of the- Indian code of Civil Procedure on the· manner of service states at page 994 as follows:- ''Affixation is imperative and mandatory _bother where he returns . . and refuses to_ sign and where defendant is absent unless affixation is impossible... where the defendant refuses to accept .. service under this rule it is mandatory for the process server to 9 .. . . affix the copy of the sumn10n/notice along with the copy of the plaint on the premises in which the defendant resides... wherever the service is affected by affixation it is not necessary t(? make affixation in the presence of one or more witnessesv I am satisfied therefore that on the evidence before me, where parties agree that the service on the corporation was not done in compliance with the procedure in terms of order XXVII, there was no evidence that the driver who accepted the service delivered it to the management. In the present case there was no affixation, as such, on~ could not say that · the applicants avoided service so as to · warrant publication. Therefore, there was no effective service. Absence of service is a reason that stands out for vacating an ex-parte decree. I will therefore allow the appeal, quash and set aside the ex parte decree by the trial court and I do hereby order that the case shall proceed to trial° and shall be determined inter-partes. . 10