Civil Appeal No

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 52 OF 2023 FUZZY INTERNATIONAL COMPANY LIMITED…………….……………..APPELLANT VERSUS MKURANGA 2013 SECURITY AND GENERAL SERVICES CO. LTD ……...…...…………...........................RESPONDENT Date of Last Order: 26/10/2023 Date of Ruling: 06/11/2023 JUDGMENT OF THE COURT KAFANABO, J.: This appeal emanates from the ruling in Civil Application No. 11 of 2022 of the district court of Mkuranga, at Mkuranga. At the said district court the appellant filed an application to set aside exparte judgment and exparte decree issued on 3rd August 2022 in Civil Case No. 4 of 2022 between the parties herein. The district court declined to grant the application hence this appeal. A brief background of the matter is that on 19th May 2022 the respondent herein instituted Civil Case No. 04 of 2022 against the Appellant herein in the District Court of Mkuranga at Mkuranga. The respondent was claiming against the appellant Tanzania Shillings (TZS) 75,000,000/= for the alleged 1 breach of contract. The contract between the parties was for the provision of security services at the appellant’s premises at Kiparang’anda in Mkuranga district. As per the plaint, the contract commenced on 10/05/2017 and ended on 31/09/2017(sic) and the monthly payment was TZS 800,000/=. It was the respondent’s claim that the appellant paid TZS 1,400,000/= only out of TZS 4,000,000/=. Besides, on 11/10/2017 the parties entered into another contract for the same purpose as the first one, but this time the monthly payment was TZS 1,800,000/=. The second contract ended on 11/04/2018, however, it was the respondent’s further claim that the parties made several oral extensions of the contract until 31/12/2022. It is the respondent’s allegation that the appellant did not perform his duty under the contract to the extent that the monthly payments accumulated to the tune of TZS 75,000,000/=. The respondent instituted Civil Case No. 4 of 2022 claiming to be paid specific damages of TZS 75,000,000/=, general damages of TZS 50,000,000/=, order of the court terminating the contract between the parties, costs of the suit, and any other relief the court may deem fit and just to grant. The matter proceeded ex-parte under order VIII Rule 14(1) of the Civil Procedure Code, Cap. 33 R.E. 2019 (hereinafter the ‘CPC’) against the 2 appellant for the alleged failure of the appellant to file a written statement of defense. Eventually, on 3rd August 2022, an exparte judgment was entered against the Appellant. Aggrieved by the ex-parte judgment of the district court of Mkuranga (K.P. Mrosso, SRM) the appellant preferred Civil Application number 11 of 2022 under order VIII Rule 15(1) of the CPC. In the said application the appellant sought, among other prayers, to set aside ex parte judgment and ex parte decree dated 03/08/2022 in Civil Case number 04 of 2022. After hearing both parties, the district court of Mkuranga (R.E. Mwaisaka, SRM) on 15th February 2023 declined to grant the application. Again, the appellant being aggrieved by the said decision, approached this court by way of appeal. The grounds of appeal as enumerated in the memorandum of appeal filed in this court on 27th April 2023 are two folds, as follows: 1. That the trial court rejected the application to set aside exparte judgment and exparte decree without any justifiable reason. 2. The trial Court erred in law and fact by its failure to conclude that there was no sufficient and legally(sic) evidence adduced by the Respondent to proof(sic) service of summons to file a written statement of defence. 3 Both parties filed their written submissions as ordered and scheduled by the court. Now, herein below, the court will consider submissions made by both parties. As regards ground one of the appeal, the appellant submitted that the trial court observed that there was a summons in the court file, but it was not a summons to file a written statement of defence, rather it was the summons to appear which was not served to the appellant according to the requirements of the law. The Respondent submitted that the trial court rejected to set aside ex-parte judgment and decree for want of merit because the copy of summons and plaint served on the appellant was remitted to court as proof of service. Further, it was because advocate Hamis Mikidadi appeared before the trial court on behalf of the appellant and the appellant himself had no any justification for non-appearance. In support of ground number two of the appeal, the appellant started by referring to Order V, Rule 2 of the CPC. Further, reference was made by the appellant to Order VIII Rule 1(1) of the CPC which requires a defendant to file a written statement of defence within 21 days after service of summons. The appellant submitted that the trial court ignored the fact that the respondent did not provide evidence that summons was properly served on 4 the appellant when determining the application to set aside exparte judgment. It was the appellant’s further submission that he was neither served with the summons nor plaint as alleged by the respondent. It was also submitted that even the summons found in the court file does not have sufficient details proving service to the appellant. The appellant further faults the decision of the court that there is proof of service and that the appellant was properly served through Shukuru Sabuni. Reference is made to the 2nd paragraph from the bottom of page 2, and the 2nd paragraph of page No. 4 of the ruling declining to set aside exparte judgment and decree. The appellant submitted that the trial court did not capture the evidence on its record concerning the service of summons. The reason is that the court did not make clear who is responsible for receiving a summons in the case of a company and whether the alleged Shukuru Sabuni is the authorized agent of the appellant. Further, it is not stated who was the process server and there is no, on-record, an affidavit of the process server of the summons and the plaint. It was thus their submission that there was no proper service to the appellant. 5 Opposing ground two of the appeal, the respondent submitted that the summons together with the plaint were served to the appellant’s officer, one Shukuru Sabuni, on 23/05/2022 at the premises of the appellant which the respondent provides security services. It was also submitted that Advocate Hamisi Mikidadi from Optimum Associates appeared for the appellant. It was the respondent’s submission that on 3rd June 2022, the said advocate issued a notice of absence, and a copy of the same was served on the respondent’s side. From that date, there was no appearance of the appellant or his advocate without notice. The respondent thus argued that the appeal was without merit and prayed for this court to dismiss it. In rejoinder submissions, the appellant simply reiterated the substance of their submissions in chief. It was also insisted that the appellant did not engage advocate Hamisi Mikidadi as alleged by the respondents and that the trial court heard and decided the matter exparte because of the non-filing of the written statement of defence and not because of the absence of the appellant. After considering the submissions of the parties, this court turns to consider the relevant grounds of appeal. The grounds of appeal reproduced herein 6 above seem to be interrelated but will commence with the 2nd ground of appeal because, if determined, may also resolve the 1st ground of the appeal. The said 2nd ground of the appeal reads: The trial court erred in law and in fact by its failure to conclude that there was no sufficient and legally(sic) evidence adduced by the Respondent to proof (sic) service of summons to file a written statement of defence. Given the 2nd ground of appeal reproduced above, the major contention of the parties is whether the trial court rightly refused to set aside exparte judgment and decree on the basis that there was proper service of the summons and the plaint to the appellant herein. It is noted that the district court refused to set aside exparte judgment and decree because it was satisfied that there was proof of service, which according to the district court, proper service was done. This aggrieved the appellant. Commencing with the ruling of the trial court dated 15/02/2023 delivered by Hon. Mwaisaka, SRM, the interest of this court is drawn to page 4 of the ruling where the trial court observed that: 7 “In the circumstances of this case, it is undisputed fact that the defendant was properly served, there is proof of service of summon(sic) as it was effected by officer of the defendant one Shukuru Sabuni, on 23/05/2022 and signed and the same was tendered before the court.” Making the above paragraph a ‘starter’, it is clear that there is a contradiction between the above finding and the evidence on record and submissions of the parties. The respondent made it lucid in her submission that the summons were served on one Shukuru Sabuni, but the learned magistrate observed that service was effected by Shukuru Sabuni, which is a contradiction. The summons on record dated 19/05/2022 purports to be signed by one Shukuru Sabuni on 23/05/2022. But it is not indicated in the summons on whose behalf the summons was received. The summons also does not indicate the address of the appellant or the person to whom it is to be served. In the proceedings of the lower court, it is not indicated who served the summons, and there is no affidavit of the process server who effected the service, if any. Further, the said summons is simply a summons to appear and is not a summons to file a written statement of defence. Considering Civil Case No. 8 04 of 2022, the proceedings of 6th July 2022 indicate that the trial court simply accepted the statement from the bar that the defendant (appellant herein) was duly served and ordered the matter to proceed exparte against the appellant. Another finding of the court is also found on page 4 of the ruling of Civil Application No. 11 of 2022, the district court observed that: Moreover, the applicant engaged advocate Hamis Mikidadi who sent a notice of absence before the court, proving that they were aware of this matter. I am aware that from that date the said defence counsel never appeared again before the court, but there was negligence on the part of the applicant for not making follow up of his case and even appearing before the court. ” A simple scrutiny of the proceedings of the trial court in Civil Case No. 04 of 2022 indicates that the alleged Hamis Mikidadi never showed up in court since the institution of the said case. Save for proceedings of 03/06/2022 which indicate that advocate Zawadi Lupelo purportedly held brief of the said advocate Mikidadi and the trial court, startlingly, relied on this as evidence of proper service and concluded, though erroneously, that the appellant was aware of the case pending in court. 9 Another piece of evidence relied upon by the court to proceed exparte, and in refusing to grant an application to set aside exparte order, is the alleged notice of absence sent to court on 03/06/2023. The alleged notice of absence has holes and wanting content-wise to be relied upon by the court as proof of service warranting to proceed exparte. Simply stated, the notice was requesting an adjournment because the alleged advocate was appearing in the High Court of Tanzania at Dar es Salaam. However, the notice did not indicate the case number or the Judge before whom he would be appearing. Further, the alleged notice does not bear the name of the author. All these cast a lot of doubts on its reliability as a proof of service. The issue for this court to determine is whether there were summonses issued and duly served upon the appellant, to put them on notice that they were required to file a written statement of defence as ordered by the court and consequently enter an appearance on the date fixed for mention. The controverted summonses in the appeal before the court are the summonses issued on 19/05/2022 when neither the appellant nor the respondent were present in court. Through the said summons, the parties were required to appear in court on 03/06/2022. On that day, advocate Zawadi Lupelo entered an appearance for the plaintiff (respondent herein) 10 and, purportedly, held a brief for the alleged Hamis Mikidadi for the appellant. The proceedings show that the advocate for the plaintiff/respondent informed the court that they (the plaintiff) have served the appellant and prayed for another date of mention. Even though it is not stated the defendant was served with what document/item. Moreover, the said advocate did not say anything as to who was served with and received the summons on behalf of the appellant. The said advocate Zawadi Lupelo also did not acknowledge receipt of summons or plaint on behalf of the appellant given that he purportedly held the appellant’s brief on 3rd June 2022. That was followed with another order for mention on 23/06/2022, no other summons were issued. On 23rd June, 2022, again, advocate Zawadi Lupelo entered an appearance for the respondent and the appellant was marked absent. However, no word from Advocate Lupelo as to the whereabouts of the appellant given that he held their brief on 03/06/2022. He did not even mention that he notified the appellant of that day’s order for mention as he appeared on the plaintiff’s behalf on the preceding mention date before the court. Instead, the learned advocate, complained of not being served with the written statement of defence. 11 The court adjourned the matter and fixed the same for mention on 06/07/2022. Coming 06/07/2022, the matter was due for mention and the Respondent was represented by advocate Matitu but the appellant was absent. The court accepted the respondent’s counsel's prayer of tendering summons and notice of absence as proof of service and proceeded to order that the matter should proceed exparte under Order VIII Rule 14(1) of the CPC and the matter was fixed for hearing exparte on 19/07/2022. In the facts of this case, there is a clear conflict of interest where an advocate for the ‘plaintiff’ (respondent herein) allegedly held the brief of the advocate for the ‘defendant’ (appellant herein) on a preceding date in court. Then on the next date, he does not provide proof to the court that he provided the defendant or his advocate with information regarding the status of the matter and orders of the court as issued on that particular day because he held their brief. Instead, he purports to seek adverse orders or chooses to express his discontent against that party for either nonappearance or non- filing of the written statement of defense. In the interest of justice, he shall be barred from complaining against that party or advocate, and shall not be allowed to seek adverse order against that other party, unless he proves that he, being officer of the court, has discharged his duty in ensuring that justice 12 is done. Otherwise, if the court entertains such lapses from officers of the court many parties will be condemned unheard, and great injustices will be done. It is, therefore, this court’s observation that in the trial court’s proceedings, there was not an iota of evidence that the appellant was served with either a summons to appear or to file a written statement of defense or plaint. It was, consequently, premature and hasty for the trial court to proceed exparte under Order VIII Rule 14(1) of the CPC which provides that: ‘Where any party required to file a written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub rule 3 of rule 1, within the period of such extension, the court shall, upon proof of service and on oral application by the plaintiff to proceed ex parte, fix the date for hearing the plaintiff’s evidence on the claim’ Given the evidence on record, there is no proof that the appellant was, at any point in time after the institution of the suit, required to file a written statement of defense and failed. Hence, there was no justification for the district court to proceed exparte under Order VIII Rule 14(1) of the CPC against the appellant. 13 Moreover, the issuance and service of summons are regulated under the provisions of Order V of the CPC. Order V rule 1 provides as follows on summons: ‘Where a suit has been duly instituted, a summons may be issued to the defendant at the time when the suit is assigned to a specific Judge or Magistrate pursuant to the provisions of rule 3 of Order IV, to file in accordance with sub rule (1) of rule 1 of Order VIII, a written statement of defence to the claim.’ The respondent in his submission argued that service was made to one Shukuru Sabuni, but did not manage to explain who is that person in the Appellant’s company. Order V Rule 8 of the CPC provides that: ‘Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.’ The position of the person allegedly served with the appellant’s summons is not known in the appellant’s company, and the respondent did not establish his agency or authority to receive a summons in any manner whatsoever. In that case, the service, if any, was not sufficient. 14 It is just judicious, at this occasion, to observe that the said summons, notice of absence, and statements from the bar of the respondent’s advocates will not be given any credence by this court, in the absence of an affidavit of proof of service as required under rule 14 of Order V of the CPC which states: " The serving officer shall, within fourteen days of service in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original; summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons." Moreover, this court is guided by rule 12 of Order V of the CPC, which provides that: Where the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf, he shall require the person to whom the copy is so delivered or tendered to sign an acknowledgement of service endorsed on the original summons. 15 In the present case, as already explained above, the appellant, being a company was at least supposed to stamp the summons if received as alleged by the respondent. It is clear that there is no proof of the appellant acknowledging receipt of the said summons. Moreover, the service was not duly effected, as the endorsement made in the summons is questionable. Also, the return of service is not supported by the proof of service as there was no affidavit or document showing compliance to the dictates of rules 12 and 14 of the Order V of the CPC. The deficiency in endorsement and acknowledgment could have been salvaged by the affidavit of the process server proving that the service was duly effected. In this case, the affidavit was neither sworn nor filed in court. The provision of Order V rule 6 of the CPC, which directs on appearance on the date fixed is also relevant. The said rule provides as follows: "The day of appearance of the defendant shall be fixed with reference to the current business of the court, the place of residence of the defendant and the time necessary for service of the summons; and the day shall be so affixed as to allow the defendant sufficient time to enable him to appear and answer on such day." 16 Since there was no proof in that regard, it is unsafe to conclude that service was effected on 23rd May 2022. By proceeding exparte the trial court denied the appellant a right to be heard without justification. The Court of Appeal in the case of Mary Mchome Mbwambo & Amos Mbwambo vs Mbeya Cement Company Ltd (Civil Appeal 161 of 2019) [2022] TZCA 179 (4 April 2022), quoting with approval the case of Abbas Sherally & Another v. Abdul S. H. M. Fazalboy, Civil Application No. 33 of 2002 (unreported), the right to be heard before adverse action is taken is well elucidated when the court said: "The right to be heard before adverse action or decision is taken against such a party has been stated and emphasized by courts in numerous 18 decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard because the violation is considered to be a breach of natural justice." The Court further held that: The violation of the right to be heard is a breach of the cardinal principle of natural justice and an abrogation of the constitutional 17 guarantee of the basic right to be heard as enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. See: Mbeya Rukwa Auto Parts and Transport Limited v. Jestina George Mwakyoma [2003] T.L.R. 251. Given the settled position of the law as applied to the facts of the case, the 2nd ground of appeal is meritorious. This also disposes of the 1st ground of appeal which is also well founded given the reasons herein above. Therefore, this court is satisfied that the district court wrongly proceeded exparte against the appellant as there was no proof of service of any summons. Further, by so doing, it condemned the appellants unheard and their application to set aside exparte judgment and decree should have been allowed by the district court under Order VIII rule 15(1) of the CPC. It is further ruled that the decision to proceed exparte without proof of service vitiates the proceedings before the district court. This counts from 19th May 2022 when the court ordered the appellant to be summoned. This court, therefore, allows the appeal. The ruling in Civil Application No. 11 of 2022 is set aside. It follows that the proceedings, exparte judgment, and decree in Civil Case No. 04 of 2022 of the district court of Mkuranga are, also, hereby quashed and set aside for being nullity. It is further ordered 18 that the record of the Trial court be remitted back to the district court of Mkuranga and proceedings should commence afresh from issuance of necessary summons. In the circumstances of this appeal, we order no costs. DATED at DAR ES SALAAM this day 6th of November, 2023. ~ JUDGE 6/11/2023 The judgment delivered this day 6th of November, 2023 in the presence of Hashim Mziray, learned advocate for the appellant and Shukuru Ngweshani director for the respondent. J K. I. KAFANABO JUDGE 06/11/2023 19