20181016 TZHC Dodoma

IN THE HIGH CO~JRT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA (DC) CIVIL APPEAL NO. 1 OF 2017 (Originated from Civil Case No. 1/2016 of the District Court of Bahi at Bahi) COCA COLA KWANZA LTD ....................... ........................ APPELLANT VERSUS ALBERTY MNYANGA t/a MSEMA REVENUE MANAGEMENT ... i ..... ~ ........................... RESPONDENT JUDGMENT 31/07/2018 & 16/10/2018 KALOMBOLA, J. COCA COLA KWANZA ts the appellant, appealing against the decision in Civil Case No. 1/'2016 of the District Court of Bahi at Bahi. There are (9) grounds of appeal that the learned trial Magistrate erred in Law and fact:- ( 1) or misdirected hirnself in holding that the Appellant did not file any application for leave to defend) the original summary suit; 1 ., .; .. ... •f '·' ,, ,tr .. '' •·. i· "1 ''> (2) and procedure· in misconstruing the applicability of the Law relating to determination of summary suits; (3) in omitting or failing to compose and accordingly _deliver judgment; (4) in failing to consider the Law on burden and standardof proof and thereby misdirected himself on matters of evidence such as tendering and credibility of evidence; -(5) - in - unjustifiably gran_tir"!g,_ as he did, to the Respondent all the prayers as appearing in the Respondent's pleadings unsubstantiated; (6) in awarding unspecified commercial rate interest without any support; (7) in awarding interest on the decretal sum at the rate of 10% from the date of judgment until full payment; (8) in holding that the right of appeal was explained. (9) in awarding costs of the case against the Appellant. Respondent ALBERTY MNYAGA t/a MSEMA REVENUE MANGAGEMENT Countered the appeal and the appeal was ordered argued by written submissions. It is the submission by the appellant on the 1st ground of appeal that the appellant complied with the provisions of Order XXXV, Rule ( 1) of the Civil Procedure Code by filing leave to 2 . , .· ,,. ... .. · • ,. • • .I •,. .., •••,1 •• .. ., ' ,. '·• •. defend, the same were presented for filing on 1/8/2016. And that .the surbordinate Court .surnmons together with a copy of Respondent's plaint were served upon the appellant on 18/7/2016. Therefore by counting up to 1/8/2016 the appellant's Chamber Summons and Affidavit were presented for filing ·at trial Court registry it was the 15th day before the lapse of 21 days. It is further submitted unfortunately the registry officer failed to direct appellant's courier agent on procedure of filing the application by paying Court fees within reasonable time. Instead registry officer one Arapha just received the said documents on 1/8/2016 ( see annexture CCK- 1- signed by the registry officer). That on making follow up they found the trial Magistrate has inserted her signature on the appellant's Chamber Summons and Affidavit, later on erased and refuse to admit appellant's application by verbally informing. appellant's principal officer that a default judgment was already delivered. ( A copy of original copies are annexed as CCK-2) It is submitted on the 2nd ground of appeal that Law, requires suit for recovery of rent, interest or other. debts due to Republic, the government or any local government authority where it is so desires may proceed to recover the ·debts due by way of Summary procedure. Rather in the present . case the suit was instituted by an individual ( the respondent herein) purported to be -an authorized agent of Bahi District Council, while Order XXXY,.Rule 1 (e) of CPC provides the Government or any Local Government can recover such debts by instituting a summary 3 .. ,., .., . ' ,, ., ,_ 'tJ• u' ,,. ., ' ".. ·... t suit (see pleadings under paragraph 1 and 3 of the respondent's plaint). In the circumstance it is submitted the trial Court failed to ascertain the legal existence of the Principal and Agent relationship before granting the prayers. And the trial Court failed to direct the respondent to comply with the requirement as , provided . · under Section 66 of the Evidence Act and fail to address itself on the maintainability/ appropriateness of the action in terms of Order XXXV Rule 1 ( e) of the Civil Procedure Code. They submitted on the 3rd ground of appeal that the judgment of the trial Court contravened the provisions of Order XX Rule 4 and 5 of CPC as in the same the trial Court entered a decision-purported. to be judgment in favour of the respondent ... Further the trial Court by failing to state in its finding the reason upon the issues which were framed, Contravened Order XX Rule 5 of CPC. On the 4th ground it is submitted the standard .of proof in ·C-ivil Case is that of balance of probabilities which burden lies on a person who claims to have his legal rights violated as provided under Section 110 and 115 of the Evidence Act. It is stated the trial, Court failed to find out that the respondent failed to discharge his burden to required standard and that the appellant was liable to pay advertisement fees for year 2014/2015 in terms of Section 66 of Evidence Act. And in the Court record the trial Court failed to conduct formal hearing so as the 4 ,~ .. ·' '. . '' .; f' ,_.., 1"-•• .I f '. ,l ..,.• .. , .. '. .'• . .,." Ii., , I ., 5 respondent to prove his case instead it proceeded to enter default judgment. It is stated on the 5th ground of appeal they reiterated the submissions as it were made on the 4th ground of appeal. As to the 6th ground of appeal it is submitted the trial Court contravened Order XX Rule 21 read together with Section 29 of the Civil Procedure Code in awarding unspecified commercial rate interest from 5/9/2015 to 29/6/2016 date of filing the suit and unjustified 10% interest rate from date of judgment until full satisfaction of the decretal sum in absence of express agreement in writing before or after the delivery of the judgment or as ·may be adjudged by consent. That the trial Court by so doing failed to direct t-he respondent to prove his claim against the appellant and move the Court to award 10% interest rate ·on the decretal sum with reasonable justification. They support this point with the case of NJORO FURNITURE MART LTD VRS TANZANIA ELECTRICITY SUPPLY CO. LTD (1995) TLR 205. On the 7th ground of appeal they submitted that the trial Court recorded the proceedings implying the appellant was present (see proceedings dated 10/8/2016). It is their submission on the 8th ground of appeal that costs of the suit was awarded in absence of the parties and the respondent failed to prove his case. Therefore the trial Court ought to have held the respondent not entitled to any relief. They prayed the appeal be allowed. 5 :,, I! ,._.; ...' .. ' 1 .,' ; ' ., . ,, . , ' '' ' ,., ·r, :... .. ,,1 ··,,. ,. The respondent replied that the counsel for the appellant annexed to its submission a copy of different documents as evidence but prayed this Court to note that evidence can only be annexed to pleadings such· as plaint, Written Statement of Defence or Affidavit /Counter Affidavit to the application. He made reference to the case of V ACATIONAL EDUCATION TRAINING AUTHORITY YRS GHANA BULDING CONTRACTORS and ANOTHER, Civil Case No. 198/1995 High Court of Tanzania at Dar- es-Salaam ( unreported) at page 10, to support his argument hence -prayed the whole submission be expunged. Moreover that this appeal is premature before this Court as the appellant must have first apply before the very Court for the decree or execution to be set aside and apply for the surnrnons for leave to appear to defend to issue as per Order XXXV Rule 8 of CPC as amended by Government Notice 256/2005. He supported this argument with the case of BONITE BOTTLERS LTD VRS OKAMUDA LTD, Civil Appeal No. 43/2016 (HC - AR USHA ) (unreported). And add that since the appellant failed to obtain leave this appeal is premature. Rather he replied the 1st ground of appeal that the trial Court decision holding the appellant did not · file an application for leave was correct as the appellant failed to do. And a reason which was raised by the appellant lacked guidance frorn the Court clerk is immaterial and lack proof. The decision was ·guided by Order XXXV Rule 2 (2) of CPC. .6 • .-., JI Cf ., f. .,-... ,. .' ' ' ·' . -· ·, t < ,.,, '' f.""' •, .' , ' r t '· '. .r _,.. 'I .i I It replied the 2nd ground of appeal that the respondent had mandate to file summary suit on behalf of Bahi District Council to recover the debt, therefore he had locus standi as per Section 31 (1) of the Local Government Finances Act as it was annexed to the plaint (indicating he was the appointed agent). In respect of the 3rd ground of appeal it was submitted the trial Court was guided by Order XXXV Rule 2 (2) of CPC in writing the judgment. Therefore the content in the judgment cannot be used as a justification for its failure to file its application for leave to defend. It is submitted on the 4th ,5 th , 6th , 7th and 9th grounds of appeal that the trial Court was aware of the procedure regarding summary suit. The record show appellant failed to obtain leave to defend and judgment was entered after the failure hence the grounds of appeal raised have no merit because the appellant raised grounds as if the matter was heord on merits this is not permitted as it is stated in the case of RAMANLAL & CO. YRS CHUN ILAL 1932 ( A.I.R) BOM. 163 BEAUMONT CJ at pg 165. In the premises they pray the appeal be dismissed. There is no dispute that this case was filed under Summary Procedure. Having received submissions from both sides, I find the. gist of appeal is. that the appellant filed an application for leave to defend but due to Court's negligence, ·the same was never dealt with, accordingly it was taken that it did not file the said application. 7 --.,. ... _, J_,•· .....,., -. 'tr-•• _. . ' •. '' / _., i n .. - ,, ., Without wasting precious time of this Court, I have discovered from the record that service was not duly effected to the appellant. I say so after having gone through the lines of the affidavit of service which was sworn by process server one HATIBU OMARY of Kisutu Resident Magistrate's Court. Looking at a line stating "By whom the said ..... was known to me personally /was pointed out to me ... " That the process server indicated to have served the summons -to CGCA _COLA _K_WANZA LTD as pointed to him by the plaintiff, obviously it is surprising how he served the said COCA COLA KWANZA LTD but below he stated:- "Summons hii imepokelewa no Bw JOHN KAIZA ambaye ni Public Affair & Communication Director" This Court asks who between COCA COLA KWANZA LTD and John Kaiza was served with this summons? It is the view of this Court by appearance of this summons, the appe,ll_ant was not duly served. For this reason I find no· need of determining the appeal on merits since that it is obvious the appellant was not availed with opportunity to exercise its right as it is provided under Order XXXV 2 ( 1) of the Civil Procedure Code, Cap 33 R.E. 2002 which provides:- " Suits to which this Order .applies shall be instituted by presenting a plaint in the usual form but endorsed "Order XXXV Summary Procedure" and the summons -8 .. · .: ef·· .. ', :.."- ........ : ,.. ...,., shall inform the defendant that unless he obtains leave from the Court to defend the suit, a decision may be given against him and shall also inform him of the manner in which application may be made for leave to defend." As I have already said hereinabove, the appeliant was not duly served. For this reason and without even discussing the appeal on merits, this reason suffices to say that the proceedings of the trial Court are nullified and orders arising therefrom are set aside. It is hereby ordered the suit be tried de novo. Appealis allowed. Each party to bear own costs. It is so ordered. (H. H. KAi.~LA) JUDGE 16/10/2018 .. ti .• . +;.,;. ---9'/- ..,· ... ·~ c.:''· .{/ t:£:~: , .... ·¼, ..:.,. :,;;]I' 1',..,;. ~:..; a DATE: 16/10/2018 Coram: Hon. Madam H. H. Kalombola,J. Appellant: Absent Respondent: /v\r. lsaya Nchimbi/Mr. Wilson- Present. C/c: F. Nkamirwa COURT · · RlJling- read today 16/10/20_18 in the absence of the appellant and the respondent. Mr. lsaya Nchimbf. advocate is present, holding the brief of Mr. Wilson advocate for the respondent. 10 ., .... ,;