fungwe mbasa administrstor of the estate of the late fungwe shija vs goi manweki ntuzu administrator of the estate of the late manweki ntuzu and antoher 2023 tzhc 2077

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA MISC. CIVIL APPLICATION NO. 20 OF 2023 (Arising from Misc. Land Application No. 27 of 2022 and Land Case Appeal No. 27 of 2006 both of the High Court of Tanzania at Tabora and originating from the District Land and Housing Tribunal of Shinyanga in Land Application No. 19 of 2006)) FUNGWE MBASA (administrator of the estate of the late FUNGWE SHIJA)....................................................... APPLICANT VERSUS 1. GOI MANWEKI NTUZU (administrator of the estate of the late MANWEKI NTUZU) 2. MAHONA MANWEKI NTUZU (Administrator of RESPONDENTS the estate of the late DAUD NTUZU) RULING Date of Last Order: 30/08/2023 Date of Ruling: 30/08/2023 MATUMA, J. Way back in 2006 the late Fungwe Shija was sued by Manweki Ntuzu and Daud Ntuzu in the District Land and Housing Tribunal for Shinyanga. For reasons not apparent in the instant application, the suit proceeded ex-parte. i The late Fungwe applied before the tribunal to have the ex-parte judgment set aside but on the 5th December, 2006 his application was dismissed for lack of merit. Being dissatisfied by the dismissal of his application, the late Fungwe Shija appealed in the High Court vide Land Case Appeal no. 27 of 2006 but on the 30th April, 2013 such appeal was withdrawn by his advocate before Hon. Justice H.T. Songoro. Three years later on 25/05/2016 the Applicant herein Fungwe Mbasa obtained letters of administration of the late Fungwe Shija. Having been so appointed and almost six years later the Applicant applied for Restoration of the withdrawn appeal in the High Court at Shinyanga but it was discovered that Shinyanga High Court Zone was a wrong registry because the matter sought to be restored was withdrawn at the Hight Court zone of Tabora. His Application was thus struck out hence the current application for restoration after the applicant had successfully obtained extension of time vide Misc. Land Case Application no. 27 of 2022. At the hearing of this Application the Applicant was present in person and had the service of Mr. Akram Magoti learned advocate. The Respondents were absent and the learned advocate for the Applicant explained that they tried to effect service to the respondents through hamlet chairman but it was not successful because the chairman endorsed that the said respondents are nowhere to bee found. The learned advocate thus asked for this court to proceed with the matter ex-parte under Order XXXIX Rule 17 (2) of the Civil Procedure Code. It is upon such background I thought it necessary to make this ruling as to whether we can legally proceed with this matter ex-parte against the respondents who have not been served. 2 The law cited by the learned advocate order XXXIX Rule 17 (2) of the CPC supra provides for the circumstances of none appearance of the respondent at the hearing without any excuse. In the instant matter it is not the question of none appearance of the respondent but a none service to the respondent. In accordance to the Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, G.N. 363 of 2017, only Court Processes Servers appointed and recruited under the law are eligible for effecting services. When it is not practically possible to procure the court process server for whatever reason, the party bound to effect service may apply to the Deputy Registrar or the Resident Magistrate incharge for an order appointing any public officer to effect such service. That is in accordance to rule 30 and 31 of GN no. 363 of 2017 supra. Court process servers are appointed under rule 5 (2) of G.N No. 363 supra and are subject to disciplinary measures under the G.N and they have their own code of conduct made under the same G.N. Service of summons is therefore not a duty to be executed by anybody but by very selected and recruited persons under the G.N supra. It is the duty that should not be taken lightly or for leisure. In the case of Pascal Leonard versus Iddi Kavuruzi, DC Civil Appeal No.9 of2020, this Court at Kigoma held that service of summons is a dignified duty which entails integrity, honesty, competence, quality service and confidentiality. The essence of the law in putting in place Court process servers to effect services was well stated in the case of Pascal Leonard supra to the effect that a party to the suit should not be allowed to make his own private arrangements for effecting service to avoid misleading the Court On the true 3 status of service which might put justice in danger. The Court in rejecting private arrangements for effecting service held at page 6; - "That is very dangerous as I have said herein above as it may mislead the Court and cause the right of the parties to be heard be infringed by mere affidavits sworn by unrecognized persons like what happened in this case. The person to effect service should not be under control of either party to the suit so that he would state the true status of service for the better end ofjustice. To ensure as such, the process server must be only those who are legally recognized as herein above stated, and who are subject to Disciplinary Committee and Code of Conduct for process servers, or who are under special appointment by the order of the Registrar of Magistrate for special cases as stated herein". I fully subscribe to the herein above finding and take it as part of the decision in this application. If the Applicant made his private arrangement to procure the alleged Mwenyekiti wa Kitongoji whose name is even not stated nor he has sworn any affidavit to state the true status of his service to the respondents and he returned feedback to him that the service was not successful, the next step was not for him to pray for ex-parte hearing but to find out another summons and use the process server to effect such service. Only the affidavit of the process server is wealthy to be considered as a true status of service. Since in this case the said Mwenyekiti wa Kitongoji was neither a process server nor a public officer appointed under Rule 31 of G.N. No.363 supra to effect service in lieu of process servers, and since he was^privafely engaged 4 by the applicant, his integrity and freedom to swear the real facts pertaining to the service in question is questionable. It is thus very dangerous to act on his mere endorsement on the summonses to the detriment of the respondents. Since the Applicant has not effected service nor he has any intention to do so, I cannot grant the ex- parte hearing of the application. I have as well noted that the Applicant obtained extension of time through ex-parte hearing and this indicates that even if we proceed exparte against the respondents and restore the appeal, there is likelihood the Applicant would use the same tactics to have the appeal been heard ex-parte against the respondents. I find it more dangerous when the original parties are not parties herein. We are not told when Manweki Ntuzu and Daud Ntuzu died and how did the Applicant became knowledgeable of their respective deaths. How did he became aware of the administrators of the estates of such respondents. If he became aware of all such facts how then does he state that such respondents are nowhere to be seen. It was necessary for them to appear and establish whether really the real respondents are no more alive and they possess the requisite authority to stand for the respective estates. We cannot take the adjudication as a light duty without adhering to the guiding principles. I find that the Applicant has been so reluctant to properly pursue the matter whose effect is failure to prosecute his application because prosecution of the matter before the court involves effective services to the opponent parties. With the herein analysis, I find that the applicant has failed to prosecute this application for failure to effect service to the respondents in accordance to the law and his reluctance to show any effort to make any future service. Court; Ruling delivered in presence of the Applicant in person and his advocate Mr. Akram Magoti, and in the absence of the respondents. Right of 6