Joseph Kazi Ruling

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO. 7364 OF 2024 (Arising from Civil Case No.10/2022). JOSEPH THOMAS KAZI ………………………….……………… 1ST APPLICANT SUMAI THOMAS KAZI …………………………..……………... 2ND APPLICANT LOUISE THOMAS KAZI ……………….………………………… 3RD APPLICANT

VERSUS MAGRARITHA THOMAS KAZI …………….………………… IST RESPONDENT SIDNEY THOMAS KAZI ………………….…………..……… 2ND RESPONDENT LENATUS THOMAS KAZI ……………………..…..………… 3RD RESPONDENT TAMASHA JUMANNE (Suing as a next friend of AYUBU THOMAS KAZI) ………………..…..……… 4TH RESPONDENT ROCK CITY TAKERS LTD ……………….…………………… 5TH RESPONDENT DAVID THOMAS KAZI (As administrator of the Estate of the late MIRIAM THOMAS KAZI) …………..…… 6TH RESPONDENT DAVID THOMAS KAZI …………………….………….……… 7TH RESPONDENT

RULING 29th July & 24th September, 2024 CHUMA, J. The applicants are moving this court under Order IX Rule 9 and Order 95 of the Civil Procedure Code Cap 33 R.E 2019 (hereinafter referred to as the CPC) for a grant of the following Orders: - a) Setting aside an Ex parte Judgment dated 13th day of December 2022 issued in Consolidated Land Cases Nos. 15 of 1 2021 and233 of2021; b) Costs of the application to be in the due cause c) Any other relief (s) the court may deem fit and just to grant. The application is supported by an affidavit of Sumai Thomas Kazi contested by the respondent's counter affidavit. By consent of the counsel for the parties, the application was argued by way of written submissions which were filed by Mr. Masoud Mwanaupanga and Mr. Steven Mhoja both Learned counsels for the applicant and respondent respectively. The counsel for the applicant stated in his submission advanced two main reasons behind the entire application namely non-service of summons to the applicants and that the ex-parte judgment is tainted with illegality referring to paragraphs 8 and 9 of the applicant’s affidavit. Regarding the issue of service, it was argued that the plaintiff ought to serve the defendant with a summons under Order V Rule 1(1) of CPC, Cap. 33 R.E 2019 but the applicants were not served with a summons. And that the respondents failed to submit the alleged served summons

in proof thereof. On illegality concern the applicants’ 2 advocate avers that the proceedings proceeded in the absence of the 5th defendant Miriam Thomas Kazi who was reported dead and an administrator was not appointed for the purpose hence the whole proceedings are nullity. He invited this court to a case of Selemani Ally Nyamalege and 2 others Vs. Mwanza Engineering Works Ltd Civil Application No. 22/2014 and Marietha Gabo Vs. Adam Mtengu Civil Appeal No. 485/2022. In response, Mr. Steven Mhoja's advocate for the respondent contested the applicant’s submission indicating that the applicants were aware of the existence of Civil case No. 10/2022. According to him, the applicants didn’t dispute entering an appearance in the referred case and filed application No.78/2022 for an extension of time for admission of their Written Statement of Defence. As to the illegality issue once again Mr. Mhoja submitted that the applicants never disputed the fact that the same was not disclosed in their written statement of defence and treated this factor as an afterthought and that the alleged illegality is not clear on the face of the record. He finally prayed this application be dismissed with cost for want of merit. 3 Having carefully considered the rival submissions for and against this application from the counsel for the parties the issue that cries for determination is whether the

present application has merit or otherwise. However, I found it pertinent to start with the order 95 cited by the applicant in this application. The application was preferred under Order IX Rule 9 and Order 95 of the CPC. This issue cannot take much time and energy as it is amply clear that the Civil Procedure Code Cap. 33 RE 2019 does not contain order 95 cited by the applicant. Without prejudice to the above observation I now turn to determine this application on merit. For the court to grant the sought order under Order IX Rule 9 of CPC, the applicants are required to establish sufficient reasons that prevented them from appearing in court. The provision reads; “Rule 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 be set 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 shall make an order setting aside the decree as against him upon such terms as to costs, payment 4 into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit”. From the quoted provision of law, the scope of inquiry is limited to finding out whether there is "sufficient cause for non-appearance" when the suit is called on for hearing. Therefore, to attract the provisions of Order

IX Rule 9 the suit must be called on for a hearing, and to grant restoration of the suits under Order IX of the CPC, the Court must be satisfied that there are sufficient causes for non- appearance at the time when the suits were called on for hearing. The expression "sufficient cause" used under Order IX Rule 9 of the CPC is not defined in the mentioned law or any other law in our jurisdiction. The court has found the same position in other jurisdictions like India where Justice C. K. Takwani in his book titled Civil Procedure with Limitation Act, 1963, 7th Edition, on page 281, it was stated in the case of UCO Bank Vs. Iyengar Consultancy Services (P) Ltd, 1994 Supp (2) SCC 399 that, the expression "sufficient cause" has not been defined anywhere in the Code. It is therefore a question to be determined by the facts and circumstances of each case. 5 It was further stated in the same book that, the word "sufficient cause" must be liberally construed to enable the court to exercise powers ex debito justitiae. The position of the law stated in the above- referred book is almost similar to the position of the law stated by the Court of Appeal of Tanzania in the case of Yusuph Same & Another Vs. Hadija Yusuph, Civil Application No. 1 of 2001 where it was stated that: - "It should be observed that the term "sufficient cause" should not be interpreted narrowly but should be given a

wide interpretation to encompass all reasons or cases which are outside the applicant's power to control or influence resulting in delay in taking any necessary step...." Although the above-cited case was dealing with an application for an extension of time the court has found it can borrow a leaf from the interpretation given therein and apply the same in the matter at hand where the applicant is seeking an order of setting aside the ex parte judgment. Guided by the above position of the law the court has found that, the main reasons in this application are non-service of summons and illegality concern. 6 The court has however found the record very clear that, before the matter was ordered to proceed ex-parte the applicants were privy to the Civil Suit No. 10/2022. They were served with the summons on 12.4.2022 and filed their Written Statement of Defence on 12.5.2022 which attracted objection on 24.5.2022 for being filed out of time and the court ruled out on 9.6.2022. The suit passed several adjournments till 8.11.2022 when the plaintiff's advocate now the respondents requested invocation of Order VIII Rules 20 (1) (b) and (c) of CPC. The court allowed ex-parte proof on 9.11.2022. The record then indicates that the applicant was served with a summons in Civil Suit No 10/2022 which implies that they knew existence of the suit in dispute before abandoning trial. Therefore,

their contention that they were not served with summons is out of context. The second reason is that the ex-parte judgment is tainted with illegality in the sense that the proceedings proceeded in the absence of the 5th defendant Miriam Thomas Kazi who was reported dead. In my understanding, this fact is among the factors to be considered for the grant of an extension of time. I hesitate to state that this factor is fit for an application to set aside the ex-parte judgment because I don’t 7 think is a factor that prevented the applicant from appearing in court for trial. It is indisputable that what is required in this application is for the applicant to establish the reasons behind their absence in court that rendered ex-parte proceedings. In the strength of all that I have stated hereinabove, the court has found the applicants failed to satisfy it that they were prevented by sufficient cause to appear in the court rendering the matter to proceed ex-parte. Consequently, the application is devoid of merit and hence dismissed with cost. It is so ordered. DATED at MWANZA this 24th day of September 2024. W.M. CHUMA

JUDGE 8 Ruling delivered virtually in attendance of Mr. Masoud Mwanaupanga advocate for the applicant and Mr. Steven Mhoja advocate for the respondents this 24th day of September 2024. W.M. CHUMA

JUDGE 9