Misc

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. APPLICATION NO. 26089 OF 2023 (Originating from ex parte judgment in Land Case No. 132/2011 before Hon. Kaiomboia, J) ALPHONCE KIHWELE .................................................................. APPLICANT VERSUS IRENE LAZARO MOLLEL (As Administratrix of the estate of the late Pulcheria Meitoris Mollel suing by Attorney Lazaro Lokaji Mollel) ■............................................................ RESPONDENT 07/3/2024 & 26/3/2024 RULING A.MSAFIRI, J This is an application to set aside ex-parte judgment and decree originating in Land Case No. 132 of 2011 delivered on 30th October, 2013 before Hon. Kaiomboia Judge, after the applicant was granted extension of time to file this application in Misc. Land Application No. 643 of 2023 which was before Hon. Luvanda, J. dated 15/11/2023. The Application is made by way of chamber summons supported with an affidavit deponed by Alphonce Kihwele (the applicant). The Application was opposed by the respondent by filing the counter affidavit deponed by Irene Lazaro Mollel (the respondent). i Both parties were legally represented whereas, the applicant was represented by Mr. Boniphace Erasto, learned Advocate while the respondent enjoyed the legal services of Mr. Joseph Asenga, learned Advocate. The hearing was oral. On his submission Mr. Erasto, adopted the affidavit of the applicant to form part of the submissions and further submitted that the reason for the applicant's absence in Land Case No. 132 of 2011 was because he was unaware of the existence of the said case as it is pleaded in the Applicant's affidavit under paragraphs 5, 10 and 12 of the same. Furthermore, Mr. Erasto argued that the said Land Case was tainted with illegality and irregularities in which the applicant was not served with summons to defend his case nor served with a copy of the Plaint from the plaintiff who is now the respondent therefore the applicant's right to be heard was deprived. He added that the conditions set in serving the summons under Order V of the Civil Procedure Code Cap 33 [R.E. 2019] (herein the CPC) were not complied with, which led to irregularities that rendered the proceedings in Land Case No. 132 of 2011 a nullity. He argued that there was no proof that the applicant (then the respondent) has avoided services but the respondent rushed to serve by substituted services. JV/I 2 To bolster his points, Mr. Erasto cited the case of Abutwalib Musa Msuya &3 others vs. Capital Breweries &3 others, Civil Revision No.2 of 2012, CAT at Dodoma where it was held that for the substituted service to be issued there are preconditions which must be followed as set under Order V Rule 20 of the CPC. Mr Erasto argued that the said preconditions were not complied with in Land Case No 132/2011. He added that the applicant was not even served with the summons to appear on the date the exparte judgment was to be delivered. He prayed that this court be pleased to order trial de novo so that the applicant can be accorded the right to be heard. On reply, Mr. Asenga for the respondent also prayed to adopt the contents of the counter affidavit of the respondent. He contended that the applicant was duly served with summons via 1st class Courier service of Expedited Mail Service (EMS) on 16/06/2011 and then the applicant was served with summons by substituted service by publication in Uhuru Newspaper dated 21/11/2011 for the applicant to appear to defend the matter. Both the EMS and the newspaper were attached as annexures in the respondents counter affidavit. /L| 3 Mr Asenga submitted further that the reason that the applicant was unaware of the pendency of Land Case No. 132 of 2011 cannot be ground to setting aside the ex parte judgment. To bolster his argument, the counsel cited the case of Lim Han Yung & another vs Lucy Treseas Kristensen, Civil Appeal No. 219 of 2019. He argued that the applicant has not advanced sufficient good cause on his failure to appear to defend his case, despite the fact that he was dully served. He urged the court to dismiss this application for being devoid of merit. On rejoinder, Mr. Erasto reiterated what was submitted in chief and further contended that the position in the cited case of Lim Han Yung (supra) is distinguishable from the application at hand. That in the instant matter there is no evidence from the court process server as to whether the summons was served to the applicant. I have gone through the rival submissions of the parties, and also read the contents of the affidavit and counter affidavit, I have gathered the facts of the dispute as that the applicant claims that he was the defendant in Land Case No. 132 of 2011. He stated in his affidavit that the respondent by then the plaintiff instituted the above said case against him, the applicant without his knowledge. That the applicant was never served with summons to appear in court to defend his case. That he 4 became aware of the existence of the judgement and decree against him in 17/3/2022 when he was served with the execution proceedings. He said further that on perusal, he discovered that the said judgment and decree was tainted with illegalities and irregularities apparent on face of records which requires the attention or intervention of this court. That he was not served with summons to file his defence and also he was not served with summons to appear on the day the exparte judgement was delivered and hence, he was denied his right to be heard. It is the law that the power given to the court in setting aside an exparte judgment is discretional. However that discretional power can be exercised by the court where the same is satisfied that the applicant has assign good reasons to justify his failure to appear on the date the suit was called for hearing or file his written statement of defence, (see the case of Lim Han Yung & another vs. Lucy Treseas Kristensen (supra). In the said cited case, the Court of Appeal also observed that the power to set aside an exparte judgment is vested in the court by which the decree was passed. This is also in accordance with Order IX Rule 9 of the CPC which provides that: Lf I Q .. 5 "9. In any case in which a decree is passed ex parte against defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. " From the above principle, it follows that the issue is whether the applicant has assigned good reasons for his non-appearance in Land Case No. 132 of 2011 so that this court can exercise its discretion and grant the sought orders. In his affidavit, the applicant stated that he was unaware that the respondent has instituted Land Case No 132/2011 against him as he was never served with any summons to file the written statement of defence or to appear on the date the exparte judgment was delivered. He said further that according to the records, the substitution service by way of publication in the newspaper was not ordered by a presiding judge but it was ordered by the Deputy Registrar and that there is no record to show that the service was ever conducted by affixation before option of substituted service and that there is uncertainty of service. He insisted that he has never been served with a Plaint or any 6 document relating with Land Case No. 132 of 2011 except that of application for execution which was served to him in 2022. Having heard the submissions by both parties, I went through the records of the exparte proceedings. Indeed the records are silent on whether the procedure for service was complied with. The records are silent on whether the defendant was duly served and the court was satisfied that the summons were duly served. There is no any records on whether the provisions of Order V of the CPC were complied with. The records only show the order of the court on exparte hearing. It was issued on 13/8/2012. The records are silent on how the order of exparte hearing was reached and on how the court was satisfied that the defendant was duly served by all means required and have failed to enter appearance and/ or file his defence. In the counter affidavit, the respondent has averred that the order to proceed exparte was issued after ordinary/ conventional means of serving applicant proved futile. That all conventional ways of personal service was exhausted including usage of 1st class courier service of expedited mail service (EMS) on 16/6/2011.1 have seen the attached EMS which was purported served to the applicant on 16/6/2011. The document has no proof on whether it was received by addressee i.e. Alphonce Kihwele. -WI L - 7 To sum up, this court is satisfied that the applicant have advanced good and sufficient reason for his absence during the proceedings of Land Case No. 132/2011. The major reason being that he was not duly served with the summons to appear before the court hence he was unaware that the plaintiff have instituted a case against him until he was served with the application for execution in 2022 and hence he was denied his right to be heard. And for that reason, the court hereby exercise it discretional power vested under Order IX Rule 9 of the CPC. The application is granted and the exparte judgment and decree entered on 30/10/2013 in Land Case No.132 of 2011 by this court is hereby set aside. The exparte proceedings are also set aside and the case to be heard interpartes on the date to be fixed by the court. Each party to bear their own costs. 8