FIKIA FINANCE LIMITED VS REHEMA MIRAJI MULIKA CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM. CIVIL APPEAL NO. 202 OF 2023 (Arising from the Ruling and Drawn Order of the District Court of Kinondoni at Kinondoni (Hon. Mtega, PRM) dated 07th September 2023 in Misc. Civil Application No. 78 of 2023) FIKIA FINANCE LIMITED……..……………………………APPELLANT

VERSUS REHEMA MIRAJI MULIKA………………………………..RESPONDENT

JUDGMENT Date of last order: 13/08/2024 Date of judgment: 27/09/2024 A. A. MBAGWA, J. This is an appeal against the ruling and drawn order of the District Court of Kinondoni at Kinondoni (the trial court) delivered by Hon. Mtega, PRM on 7th September 2023 in Misc. Civil Application No. 78 of 2023 (the application). What transpired in the trial Court, as per the record of appeal, may be recounted as follows; 1 The respondent who was the plaintiff in the trial court, instituted a suit against the appellant claiming for several reliefs. The appellant (defendant by then) was duly served but defaulted to file its written statement of defence. Henceforth, the suit was ordered to proceed ex parte against the appellant. In a bid to salvage itself from the matter to proceed ex parte, the appellant unsuccessfully applied to set aside the ex parte order hence this appeal. Aggrieved with the trial court’s order refusing to set aside an ex parte order, the appellant filed the instant appeal. In the memorandum of appeal, the appellant advanced two grounds of appeal to wit; 1. That, the Trial Magistrate erred in law and facts in holding that the Appellant did not establish sufficient grounds to set aside an order permitting the Respondent to proceed with hearing ex parte against the Appellant without considering the evidence in the affidavits in support of the chamber application.

2. That the Trial Magistrate erred in law by ignoring binding legal authorities and misinterpreting the provisions and principles of law governing the setting aside of ex parte orders and thereby dismissing the chamber application based on extraneous matters. On 16th July 2024, when the appeal came up for hearing, Mr. Jamaldin 2 Ngolo, the learned advocate appeared for the appellant whilst Mr. Jonathan Lulinga also the learned advocate appeared for the respondent. Upon a consensual prayer by both advocates, this Court ordered the appeal to be disposed of by way of written submissions. Both counsel impressively filed their respective submissions within time. For purposes of brevity, I will not reproduce the submissions verbatim. Suffice it to say that I have read both and considered the rival submissions. Submitting on the first ground of appeal, Mr. Jamaldin had it that Order VIII Rule 14 (2) of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) requires the applicant to assign good cause for the Court to set aside an order to proceed with hearing ex-parte. He cited the cases of Issa Selemani Mwanga vs Hamisi Mega, Misc. Civil Application No. 24 of 2021 (unreported) and Republic versus Aidan Challe, Criminal Appeal No. 130 of 2003 [2004] TZCA 28 to cement his assertion. The learned counsel expounded that paragraphs 2, 3, 4, and 5 of the affidavit by Elizabeth Budodi and

paragraphs 2, 3, and 4 of the affidavit by Jamardini Ngolo in trial court records sufficiently disclosed good cause. He candidly submitted that the respondent’s counter affidavits did not controvert the appellant’s evidence as the same just put the deponent 3 under strict proof without adducing challenging evidence to the contrary. On this, he cited the case of Bros-Canvas & Tents Limited and another versus I & M Bank (T) Limited, Misc. Commercial Application No. 14 of 2018 (unreported) to fortify his submissions. It was his submission that paragraph 7 of the counter affidavit is merely hearsay evidence as it did not disclose the identity of the court process server thus the trial court erred to rely on such evidence. He expounded further that the law requires that an affidavit that mentions another person such person must also swear an affidavit. He argued that there is no proof that the said summons was filed thereto. He cited the cases of Elihaki Giliad Mbwambo vs Mary Mchome Mbwambo and another, Misc. Civil Application No. 449 of 2019 (unreported) and NBC Ltd vs Superdoll Trailer Manufacturing Co. Ltd, Civil Application No. 13/2002. CAT at Dar es Salaam (unreported) to cement his submissions. Mr. Jamaldin forcefully submitted that the appellant was denied the right to be heard. To bolster his submission, he cited Article 13 (6) (a) of the Constitution of the United Republic

of Tanzania, 1977, and the case of Cloudy Roman Shikonyi vs Estomi A. Baraka and 4 Others, [2019] 4 1 TLR 192. He further submitted that Order V of the CPC provides for various ways of effecting summons to the opposite party including substituted service. He cited the case of Njerii vs Muturi and others [2007] 2 EA 363 to cement his submissions. Mr. Jamaldin argued that Order XXVIII Rule 2 (a) (b) of the CPC provides that service of summons to a company or corporation is deemed to be effected if the receiver is a company secretary, director, or any principal officer. To buttress his submissions, he cited the cases of Pathec Limited vs Juma Lukinda Majegelo, Civil Appeal No. 42 of 2022 (Unreported) and Coca-Cola Kwanza Limited vs Harid Mbonela and 8 others, Misc. Civil Application no. 173 of 2014, High Court, Dar es Salaam. It was his prayer that the 1st ground of appeal has merits and thus be allowed. On the 2nd ground of appeal, Mr. Jamaldin submitted that the power to set aside ex parte order is discretionary and the same should be exercised judiciously by the court upon assigning good cause by the applicant. He cited Order VIII Rule 14 (2) of the CPC and the case of Lyamuya Construction Company Ltd vs Board of Registered Trustee of Young Women’s Christian Association of Tanzania, Civil Appeal No. 2 of 2010 (Unreported) to support his submissions. He was of the opinion 5 that

the trial court erred in concluding that the service was effected through the court process server by relying on an affidavit which alleged to have been tendered in court while the same was not annexed by the Respondent. He lamented that the trial Court failed to exercise its discretionary power judiciously, an act that resulted in the denial of the appellant’s right to be heard. It was his prayer that the appeal be allowed. Responding to the 1st and 2nd grounds of appeal conjointly, the respondent’s counsel had it that the appellant’s affidavits and submissions focused on establishing that she was not served with the plaint and thus she failed to file a defense. The respondent’s counsel submitted that the appellant neither refuted receiving the summons nor provided sufficient reasons warranting the setting aside of the ex-parte order. He wondered how the appellant became aware of the suit if, at all, she was not served by the court process server. On the need to have a good reason, he cited the case of Lim Han Yuang & Another vs Lucy Tresea Kristensen; Civil Appeal No. 219 of 2019 [2022] TZCA 400 to support his submission. The respondent’s counsel concluded by praying the Court to dismiss the appeal with costs. 6 In a brief rejoinder, Mr. Jamaldin basically reiterated his submission in chief. Having gone through the record of appeal and upon scanning the rival submissions, the

relevant issue for determination is whether this appeal is meritorious. Commencing with the first ground of appeal, the appellant laments that the trial Magistrate erred in law and facts in holding that the appellant did not establish sufficient grounds to set aside. As the first appellate court, this court has the power to revisit and re-evaluate the entire evidence objectively and come up with its own findings of facts. See: Siza Patrice vs Republic, Criminal Appeal No. 19 of 2010 cited in Kaimu Saidi vs Republic, Criminal Appeal No. 391 of 2019 (both unreported). In Kaimu Saidi (supra) the Court of Appeal had this to say on page 7 of the typed judgment;- “In the event a trial court fails to perform its duty under the law to consider the defence evidence, a High Court, being a first appellate court has powers to step into 7 the trial court's shoes and reconsider the evidence of both sides and come up with its own finding of fact.” (Emphasis added) Exercising the above mandate, I accordingly step into the shoes of the trial District Court to reconsider the evidence adduced. As hinted earlier, the application was by way of chamber summons supported by an affidavit. Therefore, the evidence is the affidavit along with their annexures. See the case of Bruno Wenceslaus Nyalifa vs Permanent Secretary Ministry of Home Affairs & Another, Civil Appeal No. 82 of 2017 [2018] TZCA 297

where it was stated on page 10 of the typed judgment that;- “…affidavit is evidence and the annexture thereto is intended to substantiate the allegations made in the affidavit. Unless it is controverted, therefore, the document can be relied upon to establish a particular fact.” (Emphasis added) I have gone through the applicant’s affidavit (now appellant). It is clear 8 that the order for the suit to proceed ex parte was issued by the trial court on 9th February 2023. As stated under paragraphs 2, 3, and 4 of the affidavit of one Elizabeth Budodi, the authorized officer of the appellant in support of the application, the main reason for not filing the written statement of defence is that the appellant was unaware of the suit until sometimes in February 2023, when she received information about the suit from an undisclosed source. Paragraphs 2 and 4 of the affidavit read;- “2. That sometimes in February 2023 (sic) in got information that the Respondent had filed a suit against the Applicant. After getting that information I instructed Josan Attorneys to proceed with representing the applicant.

4. That I was later informed by Mr. Jamardini Ngolo, advocate, that the suit has been ordered to proceed ex parte against the Applicant for the Applicant’s failure to file the defence.” (Emphasis added) It is a settled law that if an affidavit contains information provided for and 9 or obtained from a third party or any other source of information, then the deponent needs to disclose the source of information. This is because as a general rule of practice and procedure, an affidavit for use in court, being a substitute for oral evidence should only contain statements of facts and circumstances to which the witness deposes either of his own knowledge or from information which he believes to be true. See Uganda vs Commissioner of Prisons, Ex-Parte Matovu [1966] 1 EA 514. The affidavit under scrutiny did not disclose the source of information (whether a person, newspaper advertisement, or public announcement of the cases within the court’s premises) which enabled the said appellant’s authorized officer to became aware of the pendency of the suit. Further, the same does not disclose how she knew the number of the suit to specifically instruct Josan Attorneys to represent her in the trial court. Moreover, the appellant did not substantiate how she became aware of the suit nor did she provide any further and better particulars thereby rendering the averments hearsay which a court of

law cannot act upon. See the cases of Sabena Technics Dar Limited v. Michael J. 10 Luwunzu, Civil Application No. 451/18 of 2020, CAT at Dar es Salaam (unreported), Sabena Technics Dar Limited vs Michael J. Luwunzu, Civil Application No. 184/18 of 2022. (all unreported) to mention but a few. In view of the above, I hold that the requirement to disclose the source of information in the circumstances of this appeal was essential. As such. I decline the invitation by Mr. Ngolo that the trial Magistrate erred in law and facts in refusing to set aside the ex parte order. I therefore find this ground of appeal wanting in merits hence liable to be dismissed. I now turn to consider the second ground of appeal on the failure of the trial Magistrate to exercise judicial discretion. Without much ado, Order VIII Rule 14 (2) of the CPC enjoins the trial court the discretion to set aside the order to proceed ex parte upon adducing good cause. The crucial issue for determination in this ground of appeal, therefore is whether the trial court properly exercised its discretion in refusing to grant the appellant an order for setting aside the ex parte hearing. Considering the parties' dispositions, it is my holding that, the trial Magistrate exercised her discretion judiciously in that the affidavits in support of the 11 appellant’s application did not demonstrate sufficient cause for its

failure to file the written statement of defence. Moreover, the applicant did not reveal the source of information on how she became aware of the pendency of the suit against it. C.K.TAKWANI in his book titled CIVIL PROCEDURE Fifth Edition on page 21 states that: "Where an averment is not based on personal knowledge/ the source of information should be clearly disclosed." (Emphasis Added) In the case of Salima Vuai Foum vs Registrar of Cooperative Societies & Others [1995] TLR 75 (CA), the Court of Appeal categorically stated on page 78; "Where an affidavit is made on information it should not be acted upon by any court unless the sources of information are specified.” (Emphasis added) In light of the above authorities, I fully subscribe to the position taken by 12 the trial Magistrate. Consequently, this ground too must fail. Having considered the appeal as a whole, I am inclined to hold that the appellant’s appeal is devoid of merits. As such, I hereby dismiss it with costs. It is so ordered. The right of appeal is explained. Dated at Dar es Salaam on this 27th day of September 2024. A.A. Mbagwa

JUDGE 27/09/2024 13