rajabu issa vs juma faki mbwewe 1986 tzca 42 9 october 1986

CORAM: M U S T A FA, J.A.g KISAMGA, J.A. And O M R , J.A. CIVIL APPEAL WO. 15 OF 1985 R A J A B U I G S A .......................... APPELLANT VERSUS J U M A FAKI MBWEWE. . . . . . . . . RESPON D E N T (Appeal f r o m the Ru l i n g of the H i g h Court of Tanzania at Bar es Salaam) (Mapigano, J.) da,ted the 19th July, 1982 in Civil Case H o. 7.6. of .19.82 JUDGrEHT OF' T H E COURT MUSTAFA, J . A . g The appellant R a j a b u was a defendant in a case filed b y the r espondent J u m a in w h i c h Juma, had claimed a, sum of money for goods d eposited w i t h Rajabu and w h i c h were not returned to J u m a despite demand. There apparently were difficulties in serving Raja.bu and the court made an order for substituted service. The process server, Frank, deponed tha/t he had duly affixed a notice in terms of the Court Order on the door of the dwelling house of Raja.bu. On proof of such substituted service an exparte judgment was entered against Rajabu. La,ter execution proceedings were out t a ken / and an attachment on the dwelling house of Raja,bu was ordered. At that stage R a j a b u reacted. That was a,bout 1st October, 1983. Raja,bu applied to set aside the exparte judgment on the gro u n d that he knew nothing a,bout the Summons and that no such notice of service was affixed to his house as fix as he knew and that it was only w h e n the attachment order on his house was made that he came to k n o w of the suit filed by Juraa, Affidavits and counter-affidavits were duly filed and as us u a l in such matters, the affidavits were contradictory. Prank the process server filed his affidavit of service and in it he me n t i o n e d that he had affixed the notice ctf Summons on Rajabu's house in the presence of one Rashidi, a local 10 cell leader. The trial judge ordered P r a n k and Rashidi to attend his Chambers to testify, and they did. Ras h i d i directly contradicted P r a n k concerning the affixing of such n o t i c e 0 The trial judge clearly proferred the evidence of Prank. H o w e v e r in his ruling dismissing R a j a b u ’ s application to set aside the exparte judgment the judge said inter alia i!I have seen and heard the applicant R a s h i d i Mohamed and the process server. I cannot but help saying that was impressed. b y the process server and think that he wa,s a, truthful person". It is obvious tha,t the judge had mistaken Ras h i d i Iioha.med, the 10 cell leader for the applicant, Rajabu. Ra.ja.bu did not testify at all before the judge. The trial judge, in error, in fact had found Ra.ja.bu not worthy of belief ^ contrast to Prank, the process server, and reje c t e d Ra,jabu's contention that he had. not known of the no t i c e of Summons without giving Ra,ja.bu an opportunity to testify. In our v i e w this is a. material error of fact, and vitiates the ruling. In an application in w h i c h affidavits conta,ining contradictory averments are made, it is extremely difficult to decide on facts unless the principal parties and witnesses are examined and cross examined, if that wa,s thought advisable, Here a principal witness, Rajabu, was bjr mistake, thought to have been examined and subsequently disbelieved, when in fact nothing of the sort was done. We think that the ruling of the judge and the exparte judgment entered against R a j a b u should be and are hereby set aside. We graxit leave to Ra j a b u to defend. Ra.ja.bu must file his statement of defence on or before 30th October, 1986. The costs thrown a,way todate be in the cause. The costs of this appeal will also be in the ca.use* DATED at D A R ES SA L A A M this 9th da,y of October, 1986. A . MbliTAjj'A JUSTICE 0E APPEAL R . H . KISAl'IGA J USTICE O.P APPEAL