20051013 TZCA Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CIVIL APPEAL NO. 2 OF 2000 (From the decision of the District Court of Dodoma at Dodoma in Civil Case No. 36 of 1997) HUSSEIN AHMED FUND I .......................... APPELLANT VERSUS OMARY SHABAN GUMBO ........................ · RESPONDENT JUDGMENT S.S. KAIJAGE, J. In Dodoma District Court Civil Case No. 36/1997, the respondent herein, OMAR SHABANI GUMBO, obtained an ex parte judgement on a counter claim against HUSSEIN AHMAD FUNDI, the appellant herein. Subsequently, the appellant applied for leave to file an application, out of time, for setting aside an ex parte judgement on a counter claim. For reasons stated in its Ruling dated 08.09.1999, the trial co1:1rt rejected that application. The appellant was aggrieved, hence the present appeal. The appeal has been filed on the basis of following grounds; 2 1. THAT, the trial Magistrate erred in law and fact in holding that, the appellant was properly served by substituted service by publication, without effort to serve him personally. 2. THAT, the trial Magistrate, misdirected himself in holding that, the provision$ of S.14 ( 1) of the Law of Limitation is inapplicable to the application to set aside ex parte judgement. 3. THAT, the learned trial magistrate misdirected himself in law and fact in holding that, the appli(2ation for extension of time was for filing defence rather than to set aside ex parte Judgement. In CdSMAS CONSTRUCTION CO. LTD. V. ARR0\\1 GARMENTS LTD [1992] T.L.R. 127 the Court of Appeal (TZ) held that: "A party who fails to enter an appearance disables himself from participating when the proceedings are consequently ex - parte, but has to be told when the judgement is delivered so that he may, if he wishes, attend to take it as certain consequences may follow." 3 Going by the trial court's record, it appears that on 18.05.1998 an exparte judgement on a counter claim was entered against the appellant. I have made a perusal of the trial court's record, but I could not lay my hands on any notice issued to the appellant notifying him about the existence of an ex parte judgement on a counter claim against him. Indeed, at no subsequent time did the trial court draw the attention of the appellant, a lay man, about the existence of the said ex paiie juqgement. The appellant was simply not aware of that judgement against him until when the services of his advocate (under legal aid) were engaged. On 18.11.1998, Mr. iv1poki who advocated for the appellant discovered the existence of an ex parte judgement entered against his client. He thus promptly filed an application for an extension of time within which to file an application for setting aside the ex parte judgement out of time. The application was filed on 4.12.98. On the basis of the decision in Cosmas Case (supra), it was patently wrong on the part of the trial com1 to ignore giving Notice to the appellant or drawing his attention to the existence of the ex parte judgement against him. The combination of the fact that the trial court did not discharge its obligation to issue the requisite notice to the appellant, coupled with the fact that the appellant was not aware of the existence of an ex parte judgement until when the services of a lawyer to advocate for him were engaged, constitute, in my view, reasonable cause upon which the trial court ought to 4 have extended the time to file the appellants intended application under the provisions ofS.14 (1) of the Law of limitation Act, No. 10/1971. In the upshot, I find that the trial court's refusal to grant the application filed on behalf of the appellant was not justified. Consequently, the appeal is allowed. The order refusing the appellant's application is / hereby set aside. Considering the circumstances surrounding the case, it will be appropriate to order a retrial, as I hereby do, and make no order as to costs. It is further hereby directed that the trial court should expediate the hearing of the said matter which is to be retried. ~ /;t~C!____ S.S. KAIJAGE JUDGE 16.09.2005 Delivered this 13 th day of October, 2005 in the presence of Mr. Kuwayawaya, learned counsel for the Respondent. and in the absence of the appellant. S.S. KAIJAGE JUDGE 13.10.2005