Jassie Co Ltd vs Sultanate Energy Co Ltd Misc Commercial Application No 179 of 2023 2024 TZHCComD 95 28 May 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

COMMERCIAL DIVISION

AT PAR ES SALAAM MISC.COMMERCIAL APPLICATION NO. 179 OF 2023 JASSIE& COOPPNNLIMITED........................................................... APPLICANT

VERSUS SULTANATE ENERGY COMPANY LIMITED..................................... RESPONDENT

RULING Date of last Order: 06/03/2024 Date of Ruling: 28/05/2024 GONZI, A. The applicant filed this application under Order IX Rule 9 and Section 95 of the Civil Procedure Code Cap 33 RE 2019 praying for orders that: 1. That this Honourable Court be pleased to set aside the exparte Judgment dated 20th October, 2023 in Commercial Case No. 115 of 2022 which proceeded by way of exparte proof against the Applicant.

2. Cos^ts; ofthis ap^p^llcc^tic^n bee provided for. 1 3. Any other relief(s) this Honourable Court may deem fit and just to grant. The application was supported by an affidavit of Kulwa Samson Ndulila, learned advocate for the applicant. The respondent resisted it by filing a counter affidavit of Deogratias Mathayo Tesha, learned advocate for the respondent. The Applicant's learned counsel also filed a reply affidavit responding to the counter affidavit. From the affidavit of the applicant, it was stated that on 20th October, 2023 an Exparte Judgment was passed in Commercial Case No. 115 of 2022 by Hon. Matuma, J. He stated that the Applicant did not file witness statements in the main suit but he was just surprised by fixation that the case was coming for hearing on 7th November, 2023 and that even before that date the court just delivered its judgment on 20th October, 2023 without even notifying the Applicant of the date of delivery of the exparte judgment. The applicant attached a copy of the Exparte Judgment as annexture L-A 1 to the affidavit. He stated further that his attempts to file the witness statements failed and the exparte judgment was delivered in favour of the Respondent who was the plaintiff therein. The applicant stated that it was illegal and unfair for the court to deliver the exparte 2 judgment in the absence of the applicant and without summoning

the applicant to attend the date of delivery of the exparte judgment. In the counter affidavit, the Respondent stated that the case had been previously fixed for hearing on 7th November, 2023 and it was subsequently rescheduled to another date whereupon notice of date of hearing was issued and communicated by the court to all concerned parties. The respondent stated that the case proceeded exparte due to non-appearance of the Applicant before the court on the date the case was fixed for hearing on 18th October 2023 whereby all parties were notified by the court process server one Athuman Hassan Chama and that the decision to proceed exparte followed after several adjournments requested by the applicant who also did not file the Witness statements. The Respondent stated that Commercial Case No.115 of 2022 had earlier on been assigned to Hon Judge Mbagwa, but upon his being transferred, the case was reassigned to Hon. Judge Matuma who changed the date of hearing from 7th November 2023 to 18th and 19th October 2023 and that both sides were duly notified of the changed date of hearing. He stated that on 17th October, 2023, the new trial Judge changed the time of hearing of the Commercial Case No.115/2022 for 18th October, 2023 from 11:00 am to 9:00 am and that 3 these changes were also communicated by the Court Process Server to both parties whereupon the Applicant complained of

the sudden change of time, and therefore, the Court resumed the earlier fixed time of 11:00am on 18th October 2023 so that the applicant's wishes could be accommodated. However, at 11:00am on 18th October 2023, the Applicant still did not attend the hearing and so exparte hearing proceeded. The respondent referred to annexture SECLA 2 to the affidavit which is made up of the 2 affidavits of proof of service of summons to attend hearing deponed by the court process server, Mr. Athuman Hassan Chama. The Respondent also referred to annexture SECLA-3 being the affidavit of proof of service of the notice of date of delivery of the exparte judgment also sworn by Athuman Hassan Chama, the court process server. The statements in the counter affidavit were disputed in the reply affidavit of Kulwa Ndulila, learned Advocate. The application was heard orally whereby the applicant was represented by Mr. Ondijo Silvanus, learned advocate, while the Respondent was represented by Mr. Deogratias Tesha, learned advocate. Mr. Ondijo adopted the affidavit of the applicant and submitted that the essence of the Application is that the Applicant was not duly served with 4 summons to appear on the date set for hearing so that he could come and defend the case. He submitted that the purported service violated Order V Rule 8 of the Civil Procedure Code which requires service to be effected personally or

through recognized agent. He argued further that in terms of Order V Rule 12 of the CPC, the process server should have required the recipient of summons to sign acknowledgement of service and where the recipient refused service, the court process server should have left a copy and return to Court the original summons with an affidavit of non­ acceptance of service. The learned counsel submitted that under Order V Rule 16(1) of the CPC, the Court should have ordered substituted service where other modes had allegedly proved futile. He submitted further that under Rule 17(1) of the Commercial Court Rules, there are other modes of service of summons including service which is done electronically like using fax and e-mail or service using the past known address of the recipient. He argued that none of the foregoing procedures was applied in the case at hand. Mr. Ondijo submitted further that under paragraph 11 of the affidavit, read together with annexture SECLA-1, show that the court process server merely telephoned the applicant who did not attend. He argued that 5 service by phone call is not among the prescribed modes of service of summons. He argued that the affidavit by the court process server attached as annexture SECLA-3 is nothing but mere narrations by the court process server. It was not proof of service. He argued that annexture SECLA-1 to the affidavit shows that the

summons was duly served upon the respondent and that it was signed by the receiving person who signed and inserted his name as Kapinga W. Kapinga. Mr. Ondijo reasoned and argued that on the other hand no similar treatment was accorded to the applicant. Mr. Ondijo submitted that proof of service is necessary before the court can take any adverse action against the party to the suit. He submitted that the serving Officer must prove service to the Court. He relied on the case of Caritas Kigoma vs KG Dewsi Limited decided by the Court of Appeal of Tanzania at Mwanza for the rule that summons must be duly served, and to be duly served, entails that the service must be done in accordance with the law. He also relied on the case of Kaiza Katamba Mwalugaja versus Obby Sikuangukaa Mwampaja, decided by the High Court of Tanzania at Mbeya in 2022 which reiterated the need for summons to be duly served. He argued that the case of Kaiza Katamba (supra) insisted 6 that it is not enough for the court to rely on affidavit of the process server as the same could be false, rather the court should make investigation to satisfy itself if the service was duly done. Mr. Ondijo submitted further that annextures SECLA 1 and SECLA 2 are affidavits which show the same mobile number 0788 972 672 which allegedly is owned by two different persons named in the first affidavit as someone "Leornard Wakili"

while in the other affidavit of 17th October 2023, the same number is shown as belonging to another person named Kulwa Samson. Therefore, he argued that the affidavits of the court process server should not be trusted. Mr. Ondijo argued that the second basis for the present application is on the Applicant not being notified of the date of delivery of the exparte judgment. He submitted that under Order XX Rule 1 of the CPC a due notice of the date of delivery of the exparte judgment should be given to a party or his advocate. He reasoned that in the case at hand that was not done and hence the resulting exparte judgment was a nullity. He cited a book of Mulla on the Code of Civil procedure (2007), 7th Edition Vol II at page 581 where the learned author insisted on the need for the court to satisfy itself on the sufficient reasons advanced by a party which might 7 have prevented him to attend the hearing date and that the sufficient reasons are not limited to reasons that prevented a party to appear but the totality of the situation must be considered including deficiency on the court's own procedures. Mr. Ondijo also relied on the case of Omari Shabani Nyambu versus Dodoma Water Supply, decided by the Court of Appeal at Dar es Salaam where a judgment delivered without notifying a party was declared a nullity. In reply submissions, Mr. Deogratias Tesha adopted his affidavit

and submitted resisting the application. In respect of the allegation of non­ service of summons of the date of hearing, the learned counsel for the applicant had misconceived the law in that the summons was issued on 24th October, 2022 and it was a summons to file Written Statement of Defence and that the summons had fixed the date for necessary orders on 14th November, 2022. He submitted that this summons was duly served upon the applicant who appeared in court on 14th November 2022 where he prayed for extension of time to file the Written Statement of Defence, which was indeed filed on 28th November, 2022. Mr. Tesha submitted that the Applicant, thereafter, started to give excuses resulting into adjournments of the case from 24th April, 2023 to 11th September 2023 8 which was the last time the Applicant attended the court through his advocate one Mr. John Chogoro who also prayed for yet another adjournment on the ground that he had been recently engaged. Mr. Tesha argued that it was on 11th September, 2023 that the case was fixed for hearing on 7th November 2023 before Hon. Mbagwa, J., in the presence of both parties" counsel, but that upon his being transferred, the matter was reassigned to Hon. Matuma, J., who rescheduled the hearing date to 18th and 19th October 2023. He argued that both parties were duly notified by the Court Process server, as per the affidavit of the

court process server annexture SECLA-1 in the counter affidavit. He argued that this was not service of summons, it was notice of the date of hearing. Mr. Tesha argued that the mobile phone number 0788972672 which the applicant's counsel raised issues upon, is actually the same number which appears in the chamber summons filed by the Applicant's learned advocates in the present application and is shown as owned by Leonard & Co. Advocates. Hence, he submitted, it belongs to the applicant's law firm. He submitted that the different names mentioned in the two affidavits of proof of services as being the persons the court process server had contacted using that mobile phone number, that is Kulwa and Leonard 9 Wakili are actually Mr. Kulwa Samson and Mr. Leonard who are both advocates in the same law firm of Leonard & Co. Advocates and hence both are using that mobile number for official correspondences. Mr. Tesha submitted further that annexture SECLA-2 is an affidavit which shows that the applicant was notified of the time of hearing of the case being rescheduled on 17th October, 2023 whereby the date of hearing was fixed on 18th October, 2023 but that the time had been changed to start as from 9:00 am instead of 11:00 am. He argued that upon that notification of the change of time of starting the hearing, the Applicant actually complained of the change of that time of hearing.

Mr. Tesha argued that the complaint means that the Applicant was aware and duly notified of the rescheduled dates and time of hearing of the case. He submitted that the consequence of the applicant's complaint is reflected in the record of proceedings of the court for 18th October, 2023 when the case was called for hearing at 9:00 am on 18th October, 2023. The court adjourned the case for two hours from 9:00 am to 11:00 am in order to give time to the applicant who had complained of the sudden change of starting time of 11:00am which had been previously agreed and fixed to 9:00 am. 10 Mr. Tesha submitted that the court actually did not issue the order for the Commercial Case No. 115/2022 to proceed exparte due to the non­ appearance of the Applicant in court only, but also that it was due to the failure by the Applicant to file and serve a witness statement on time whereby the Applicant's witness statement was struck out by the court. He submitted that the Applicant does not take their cases seriously as this is not the first time that the Applicant is in court trying to set aside exparte judgments passed on default to file witness statement and serve it on time on the part of the Applicant. On the second limb on which the application at hand is based namely failure by the trial court to issue notice of the date of delivery of the exparte judgment, Mr. Tesha submitted that on

19th October 2023, the court duly issued notice of the date of delivery of the exparte Judgment. He argued that the notice of delivery of the exparte judgment was communicated to the applicant by the court process server one Mr. Athuman Hasssan Chama as evidenced by annexture SECLA 3 in the applicant's affidavit. He argued that this amounted to the Applicant being duly served. He argued further that the affidavit of the court process server 11 is not a mere narration, rather it shows under oath what transpired in the course of effecting service to the applicant. Mr. Tesha submitted that the Applicant never made any efforts to file witness statement after striking out of their witness statement despite having appeared in court 5 times in Commercial case No. 115/2022 on 21st April 2023, 7th June 2023, 5th July 2023, 24th July 2023 and 11th September 2023. In all those appearances, the applicant as the defendant in Commercial case No. 115/2022, never applied for extension of time to file witness statements. By way of rejoinder, it was the submission of Mr. Ondijo, learned counsel that, as it is admitted by the Respondent's advocate and at paragraph 11 of the counter affidavit, there was a rescheduling of the date of hearing from 7th November 2023 to 18th and 19th October 2023. He submitted that the changes were supposed to be duly communicated to the Applicant before the hearing

could justifiably proceed exparte. On the use of the same phone number by two different persons who are described as the owners thereof, Mr. Ondijo, learned advocate, submitted that the court process server in his affidavits stated that he had called the applicant's advocate "through his mobile phone" in Kiswahili language "kupitia simu yake ya 12 mkononi" which signifies that the one called was the owner of the mobile phone number. As two persons are indicated as the owners of the same mobile phone number, the affidavit should not be relied upon. Mr. Ondijo submitted that right to be heard is a constitutional right that cannot be lightly defeated by merely swearing affidavits as it becomes difficult for the court to ascertain whether the applicant's counsel were actually served or contacted and replied the way the court process server says in his affidavit. That was the end of the submissions by the counsel for both sides. In essence, the application at hand is based on two major premises. The first one is failure to serve the applicant with summons to attend the dates of hearing on 18th and 19th October when the Commercial Case No. 115/2022 had been rescheduled from 7th November, 2023. The applicant seeks to make the court set aside its exparte judgment on that basis. The second premise is that the applicant, as the defendant in Commercial Case No. 115/2022 was not duly

notified or summoned to appear and attend the court to receive the exparte judgment against the Applicant. The applicant seeks to move the court to declare the exparte judgment thereby pronounced as a nullity and hence set it aside. 13 Starting with the first limb of the application, I had to satisfy myself under what circumstances did the Applicant, as the defendant in Commercial Case No. 115/2022, lose the right to participate in the trial and that case proceeded exparte against the applicant. At page 3 of the Exparte Judgment attached to the applicants affidavit, Hon. Matuma, J is loud and clear when he stated the background of that case that: "Bearing in mind that the defendant in fact violated rule 49(2) of the Commercial Court Rules as amended which requires the parties to file witness statement(s) within the prescribed time and rule 55 thereof which mandatorily requires service of the witness statement by each party to the other or else the unserved witness statement to be struck out, this court granted the prayer and consequently struck out the witness statement of defence and ordered exparte proof." (underlining supplied) Therefore, the arguments by the applicant's counsel to the effect that the applicant was not duly served with summons for the date of hearing and as a result the matter was heard exparte, are irrelevant. The order to proceed 14 exparte hence resulting

into delivery of the exparte judgment, was imposed, not because of absence in court of the Applicant or his counsel, but rather due to failure by the Applicant to timely file and serve the defendant's witness statements. The consequence of failing to file and serve timely the witness statements by the defendant is striking out the witness statement and the case to proceed exparte against the defendant. If a similar defect is committed by the plaintiff the outcome thereof is dismissal of the case for want of prosecution on the part of the Plaintiff where no witness statement is filed at all. In the Petrofuel (T) Limited versus Power Road (T) Limited and 2 others (2012), it was held by this Court and insisted at page 14 thereof that: "The witness statement filed by Mr. Ishengoma was filed out of time and hence in contravention of not only the Court order dated 29th March 2022 but also the provisions of Rule 49(2) of the High Court (Commercial Division) rules of Procedure, GN. No. 250 of 2012 as amended by GN No. 107 of 2019. Consequently, there being a contravention of that mandatory rule, nothing can be relied on to rescue 15 the situation but that the witness statement stands struck out and I hereby strike it out from the record." The consequences of failure to file a witness statement of the Plaintiff and where there is no other witness statement to rely upon, is dismissal of

the suit for want of prosecution in accordance with the holding in the Petrofuel case at pages 14 and 15 thereof where this Court held that: "The various cases I relied on herein above are very clear. Since there is no other witness statement which can be relied on to substantiate the allegations in the Plaint, it means that the Plaintiff's case has not been prosecuted... the present suit cannot stand anymore but be liable to dismissal." Hence, in the case at hand, as the Court found in Commercial Case No. 115/2022 that no witness statement was filed and served on time by the Defendant, the court struck out the Applicant's witness statements. The consequence of striking out the defendant's only witness statement, was the same as if the Defendant had failed to appear in Court on the date when the case was coming for defence hearing. Since the failure to file 16 witness statement is equated to failure to appear when the case is called for hearing, the court ordered for exparte proof of the suit by the plaintiff as it can be seen at page 3 of the Exparte judgment by Hon. Matuma, J. Now, once an exparte judgment is delivered on the basis of the Defendant's failure to timely file and serve a witness statement, when the defendant intends to set aside the exparte judgment, his grounds should focus on the reasons which caused him fail to timely file and serve upon the other side the

witness statement. The Defendant under such circumstances cannot advance grounds establishing not being duly summoned to physically attend the hearing of the case when the plaintiff was making an exparte proof of the plaintiff's case. The Defendant cannot challenge his non-involvement in the exparte hearing or exparte proof of the Plaintiff's case because his non-involvement and exclusion from such hearing is the natural, desired and intended consequence of the exparte order that allowed the plaintiff to make exparte proof of the case when the defendant failed to timely file and or serve his witness statement. The exparte proof under Rule 22 of the Commercial Court Rules could be done by way of the Plaintiff filing an application for default judgment vide Form No.l supported by an affidavit of proof. In other Courts, where the Civil 17 procedure Code applies, it could be done by the oral testimony of the Plaintiff's witnesses. It is the exparte hearing that gives rise to exparte judgment. Once the exparte judgment is delivered and if the Defendant is aggrieved, he may challenge the exparte judgment by calling upon the same Court to set aside the exparte judgment reached or he may appeal against the exparte judgment. It all depends on the nature of the attack advanced against the exparte judgment, the desired outcome of the challenge and the grounds relied upon. The applicant

has come to this Court attempting to set aside the exparte judgment under Order IX Rule 9 and section 95 of the Civil procedure Code. Whereas section 95 is on inherent powers of the court to ensure ends of justice are not defeated and which may be resorted to where there is no other applicable provision of law, Order IX Rule 9 of the Civil Procedure Code provides that: 9. In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court 18 shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that, where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also, (emphasis supplied) It is clear that in order to set aside an exparte judgment emanating from non-appearance of a party, the only ground is "if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing" Now, does the above provision which relate to non-appearance of a party during

the hearing of the case, also apply even where the exparte hearing resulted from the striking out of witness statement of the defendant? I am of the affirmative view. It is settled that Courts give an analogous treatment of failure to file a witness statement as tantamount to failure to appear when the case was called for hearing. In that regard the two incidences have the same fate and there is no reason why their remedies should not be the same. In 19 commercial cases before the High Court, Commercial Division, the suit is deemed to have been called on for hearing on the date when the party was required to file in court its witness statement. If the Defendant did not timely file and serve the witness statement on the due date, he is deemed to have failed to appear in court when the case was called on for hearing. If the defaulting party is the defendant whose sole witness statement is struck out, as it was the case with Commercial Case No. 115/2022 herein, the Court orders an exparte hearing to proceed by the ordering the plaintiff to make an exparte proof of the claim in the suit. Now, in the event of, and upon, the exparte judgment being ultimately imposed against the defendant, if the defendant is desirous of applying to set aside the exparte judgment entered due to his failure to file the witness statement, which actually is equated to failure to attend the hearing date

in court, the defendant should satisfy the court that he was prevented by any sufficient cause from timely filing and serving the witness statement when he was required in law to do so. That failure by the defendant to file his witness statement is equated to failure by the defendant to enter appearance when the suit was called on for defence hearing. In the case at hand, therefore, as the non-appearance that lead to the exparte proof order, emanated from 20 failure by the applicant to timely file and serve the defendant's witness statement as evidenced at page 3 of the exparte judgment by Hon. Matuma, 1, then all the arguments, explanations, excuses and blames of not being duly served were supposed to be directed at the circumstances which led to the applicant's witness statement being struck out in Commercial Case No. 115/2022. That was the root cause for the exparte proof order being made by this court as per Hon. Matuma, J. Strangely, the in the present application all the applicant's concerted efforts were directed at attacking the Defendant's non-involvement in the actual hearing of the case after the court had ordered exparte proof of the case by the Plaintiff. Therefore, I find that all the facts in the affidavit and reply to counter affidavit as well as the learned counsel for the applicant's submissions complaining of the applicant not being duly served with the

summonses to appear for hearing on 18th and 19th October 2023, are irrelevant. The applicant has spent all his cartridges shelling an illusory target leaving his true enemy unscathed! The arguments by the applicant were directed at establishing denial of the right to be heard on the part of the applicant who was the defendant in Commercial case No.115/2022, in a case which the court had already ordered that it should proceed exparte the defendant. 21 "Proceeding exparte" literally, means "proceeding in the absence of (the other) party" Non-inclusion of the defendant in exparte proceedings is not a matter subject of any complaint in law. The excluded defendant cannot complain of not being notified of the date of exparte hearing when he was already aware of the order that the suit would proceed exparte against him. The right of the defendant against whom the case was ordered to proceed exparte was to be duly notified of the date of delivery of the exparte judgment, not of the date of the hearing of the plaintiff's case exparte. The Court of Appeal of Tanzania in Cosmas Construction Co. Ltd v. Arrow Garments Ltd (1992) T.L.R. 127 held that: "Dr. Lamwai has submitted before me that the High Court had no obligation to notify the applicant of the date when judgment was going to be delivered. With respect, that view cannot be correct. A party who fails to enter appearance disables

himself from participating when the proceedings are consequently exparte: but that is the farthest extent he suffers. Although the matter is therefore considered without any input by him, he is entitled to know the final outcome. He has to be told 22 when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may follow. In the present matter the applicant was not present and there is no proof that he was served with a copy of notice of judgment dated 7th October 1991." (underlining supplied) Therefore, I reiterate that as the Applicant herein, who was the defendant in the Commercial Case No. 115/2022, failed to timely file and serve the witness statement and thereby the law treated him as having failed to enter appearance when the case came for defence hearing, thereby effectively disabled himself from participating in the exparte hearing proceedings involving the plaintiff only when the proceedings consequently turned exparte. The applicant lost that right in the same way as a defendant who fails to enter appearance during hearing of the defence case loses his right to be heard upon the proceedings turning exparte. The applicant was not entitled to be summoned or notified of the hearing dates of the exparte proof of the case by the Plaintiff because that exclusion is the natural and intended consequence of the proceedings turning

exparte against him. The summonses to attend hearing which were purportedly 23 issued by the court and served through the court process server on 19th October 2023 and 20th October 2023 to the Defendant (Applicant); and to his lawyers were therefore superfluous and made no difference whether they were duly served or not. It is on that basis therefore that I decline to accept the explanations given by the learned counsel for the Applicant in attempt to set aside the exparte judgment based on the ground that the applicant was not duly served with the summonses for dates of hearing on 19th and 20th October 2023. All the reasons and authorities relied upon by the applicant are displaced and misplaced when the case at hand is taken in its proper legal context. The notices or summons which mattered in law were those allegedly attempting to notify the Applicant herein who was the defendant in the Commercial Case No. 115/2022, of the date of delivery of the exparte judgment. That was his right and it was imperative for the court to ensure that the Applicant was duly served. If not dully served, in my settled view and based on my reasoning, next coming herein, the consequences would render the exparte judgment a nullity and that in turn would not competently attract the remedy of the applicant applying before this very court to set aside the nullity exparte judgment thereby

pronounced. 24 I now turn to the second limb of complaint by the Applicant's learned counsel. This relates to the applicant as the defendant in Commercial Case No. 115/2022 not being duly notified of the date of delivery of the exparte Judgment. The applicant's counsel relied on the case of Shabani Omari Nyimbu versus DUWASA (supra) decided by the Court of Appeal of Tanzania to argue that the omission rendered the judgment a nullity and thus I should proceed to set it aside. This is a very interesting but self­ defeating argument. The records of the court show that this Court on 19th October, 2023 through the Deputy Registrar, issued Notice of date of delivery of exparte Judgment to the Managing Director of Jassie and Co. Limited of Ilemela Industrial Area Mwanza under the Care of Kulwa Samson Ndulila of Leonard & Co. Advocates P.O. box 11975 Dar es salaam. The Notice annexed as SECLA-3 informed them that the case had been fixed for exparte judgment on 20th October, 2023 at 15:00hrs before Hon. Matuma, J. The Notice was accompanied by two affidavits of the court process server notifying the applicant's counsel of the date of delivery of the exparte judgment dated 19th October 2023 and 20th October 2023. The affidavit of 19th October 2023 stated that: 25 "Leonard Wakili, yupo Mwanza, nimempigia simu yake ya mkononi 0788972672 nikamueleza juu ya kesi yako inakuja kutolewa hukumu

na Mh. Jaji Upande mmoja, hii ni baada ya yeye wakili kutohudhuria mahakamani siku ya kesi amekubali maamuzi yatolewe upande mmoja. (Advocate Leonard is in Mwanza, I called him through his mobile phone No.0788972572 and I informed him that his case is coming for delivery of Exparte Judgment before the Hon. Judge, and that this is due to his non-appearance in Court on the date of the case. He agreed that the exparte judgment be delivered.) The affidavit of the court process server of 20th October 2023 stated that: "MD wa kampuni ya JASSIE nimezungumza nae kwa simu 0715788990 nimemueleza juu ya kesi yake itatolewa hukumu upande mmoja baada ya yeye kutofika mahakamani amenikubalia kesi hiyo itolewe hukumu upande mmoja (I have talked to 26 the MD of JASSIE Company through his phone number 0715788990 and I have told him that exparte judgment in his case will be delivered and that this comes after he failed to attend the court. He has agreed that the exparte judgment be delivered.) Both affidavits are entitled "affidavit of process server upon return of a summons or Notice" and they are made under Order V Rule 18 of the Civil Procedure Code which provides that: 18. -(1) The original and a copy of a summons may be sent by the court by which it is issued either by one of its officers or by post to any court (not being the High Court) having jurisdiction in the place where the defendant resides.

19. The court to which the original and a copy of a summons are sent under rule 18 shall, upon receipt thereof, proceed as if the summons had been issued by such court and shall then within fourteen days of completing such proceeding return the summons to 27 the court of issue, together with the record (if any) of its proceedings with regard thereto. Based on the above reproduced affidavits and the exposed position of the law under which they were made, the question is whether or not the applicant was dully notified of the date of delivery of the exparte Judgment? The Applicant's learned counsel has argued that the applicant was not duly served and thus the resulting exparte judgment in Commercial Case No. 115/2022 became a nullity. But behold! Where does this argument lead to? Under the second limb, the application at hand is brought before the High Court to persuade it to set aside its own exparte judgment in Commercial Case No. 115/2022 on the basis that the exparte judgment is a nullity for being delivered without firstly notifying the Applicant who was the defendant in the Commercial Case No. 115/2022, of the date of delivery of the exparte judgment. Do I have the requisite jurisdiction? The words of Hon. Nyarangi, J.A., of the Court of Appeal of Kenya in the case of "MV Lilian S" [1989] 1 KLR, still ring in my head that: - "Jurisdiction is everything, without it, a Court

has no power to make one more step. Where the Court 28 has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." It is undisputed that under the arguments advanced by the applicant's learned counsel on the second limb of his application, should I make a finding that the Applicant was not duly served with notice to attend in court on the date of delivery of the exparte judgment, the outcome will be to declare the exparte judgment delivered by my fellow Judge of the High Court, a nullity. This is the only outcome where any judgment is delivered by the court without the court duly notifying any of the parties, even the one against whom proceedings proceeded exparte, of the date of delivery of the judgment. In the case of Omary Shabani Nyambu versus DUWASA, Civil appeal No.303 of 2020, decided by the Court of Appeal of Tanzania at Dar es salaam it was held that: "Applying the principle in the above cited authority, we agree with both learned counsel that the purported judgment delivered in the absence of 29 the parties was not effective, operative or valid judgment which could be appealed against. It was a nullity/' The Court of Appeal of Tanzania in Cosmas Construction Co. Ltd v. Arrow Garments Ltd (1992)

T.L.R. 127 held that: "Dr. Lamwai has submitted before me that the High Court had no obligation to notify the applicant of the date when judgment was going to be delivered. With respect, that view cannot be correct. A party who fails to enter appearance disables himself from participating when the proceedings are consequently exparte; but that is the farthest extent he suffers. Although the matter is therefore considered without any input by him he is entitled to know the final outcome. He has to be told when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may follow. In the present matter the applicant was not present and there is no proof that he was served with a 30 copy of notice of judgment dated 7th October 1991." (underlining supplied) As the consequences of a judgment delivered by a Court in absence of a party without prior notifying the parties of the date of delivery of the judgment is a nullity, I think that finding can only be conclusively made by a superior court to the one which passed the judgment in question. As a successor Judge I stand in the same footing like the predecessor Judge with no more or lesser powers over the decision made by the predecessor Judge of this Court. I am convinced that I do not have jurisdiction to decide whether or not a decision of the High Court is a nullity. As I do not have

jurisdiction to declare the exparte judgment in Commercial Case No. 115/2022 a nullity in case I find that it was delivered without the defendant in the case being duly served, I reserve my energy for other purposes. I cannot inquire into the appropriateness or otherwise of the service of the notice of date of delivery of the exparte judgment. I cannot start what I cannot finish. Therefore, although I have heard both counsel on this contested issue of service upon the Applicant herein of the notice of date of delivery of the exparte judgment, I decline to decide that issue because, in effect, the learned counsel for parties were, actually, arguing it 31 in the wrong forum. The application before me is therefore bound to fail on this second limb as well though not on merits but on lack of jurisdiction to determine it on merit. As I finish, I would like to express my view albeit very briefly as an eye­ opener that, it seems the procedures for challenging exparte judgments and default judgments appears to be an intricate issue that seems to elude not a few legal practitioners. This court has powers to set aside its own exparte judgment so as to proceed with a hearing of the case inter partes. However, practically the remedy for setting aside an exparte judgment cannot be available to or appropriate for every case which proceeded exparte. It depends on the circumstances which made

the proceedings to turn exparte, and such circumstances are diverse. Also, it depends on the grounds advanced to challenge the exparte judgment. It also depends on the remedy sought by the aggrieved person (defendant). There are some circumstances where even if the defendant succeeds to set aside the exparte judgment, he cannot, ipso facto, be entitled to take party in the proceedings. There are some grounds of challenging exparte judgments which, if successful, will result into nullification of the entire exparte judgment hence there will be no exparte judgment in existence to be set 32 aside. Therefore, there are circumstances when the ideal challenge to an exparte judgment may be a direct appeal or other remedies rather than an application to set it aside. The remedy of a direct appeal challenging an exparte judgment is not strange. The Court of Appeal of Tanzania speaking through Hon. Maige, J. A in Civil Appeal No. 13 of 2021 Dangote Industries Ltd Tanzania Versus Warnercom (T) Limited stated that: "The issue, it would seem to us, is not whether an ex parte judgment is appealable but rather whether the same can be appealed against without first attempting to set it aside. The procedure for setting aside an ex parte judgment in both the High Court and subordinate courts is set out under Order 9 rule 13 (1) of the CPC according to which an ex-parte judgment may be set aside

if the judgment debtor assigns good cause that prevented him to enter appearance on the date when the court allowed the decree holder to proceed ex-parte. Further, under order XL rule 1 (d) of the CPC, an order refusing to set aside an ex parte judgment is appealable. 33 Conversely, an ex-parte judgment is appealable under section 70 (2) of the CPC which provides that "an appeal may tie from an original decree passed ex-parte" Section 70 (2) of the CPC, unambiguous as it is, does not impose any condition for appealing against an ex-parte judgment". Therefore, taking cue from the words of the Court of Appeal in the above stated case, I am of the settled view that setting aside is not the only or the mandatory prerequisite remedy against exparte judgments. It depends on the circumstances under which the proceedings turned exparte, the grounds relied upon to challenge the exparte judgment and the intended outcome of the challenge. However, in my view, one thing is settled and that is the remedy of Setting aside an exparte judgment by the same Court that passed it, by its very nature, presupposes that there exists a valid exparte judgment which can actually be set aside to pave way for involvement of both parties in the hearing of the case. In the case at hand, the Applicant has challenged the exparte judgment for lack of notice to the defendant of date of delivery of the exparte judgment. 34 If successful, the exparte judgment would be a nullity and hence there would be no exparte judgment to be set aside. The question that arises is whether this Court has powers to declare its own decision a nullity? That is the power of the superior court namely the Court of Appeal. In the upshot, the application is hereby dismissed with costs. It is so

JUDGE 28/05/2024 Ruling is delivered in Court this 28th day of May 2024 in the presence of Mr. Ondijo Silvanus learned advocate for the Applicant and Mr. Deogratias Mathayo Tesha, learned advocate for the Respondent. 28/05/2024 35