julius peter nkonya vs edgepoint company limited 2022 tzhclandd 167 22 march 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 45 OF 2022 (Arising from Land Case No. 95 of 2021) JULIUS PETER NKONYA............................................. APPLICANT VERSUS EDGEPOINT COMPANY LIMITED........................... RESPONDENT RULING Date of Last Order: 07/03/2022 Date of Ruling: 22/03/2022 A. MSAFIRI, J The applicant Julius Peter Nkonya has filed this application under the provisions of Order IX Rule 4 and Order VIII Rule 14(2) of the Civil Procedure Code Cap. 33 R.E. 2019. He is praying for the following orders: i. That this Honourable Court be pleased to vacate its order of ex-parte hearing in the Land Case No. 95 of2021 which was made on the 23d August 2021 and the Court be pleased to order the matter proceed inter-parties. ii. That this Honourable Court be pleased to order the defendant to file written statement of defence in the Land Case No. 95 of2021 and the suit to proceed inter-parties. Hi. Costs of this application. iv. Any other relief(s). L/ /' i The application was supported by an affidavit of the applicant himself while the respondent filed a counter affidavit opposing the application which was sworn by Christopher Rabi, Principal Officer of the respondent. The hearing of the application was conducted by way of written submissions and the submissions by the applicant were drawn and filed by Egbert Milanzi, advocate for the applicant. The respondent's reply submission was drawn and filed by James Evarister, advocate. The reasons in support of the application and against the application were elaborated in the affidavit and counter affidavits and cemented in the submissions from both parties. Having gone through the said submissions, the issue is whether the applicant has established good cause for this Court to vacate its previous order and allow the main suit to be heard inter-parties. As per the records, the main suit i.e. Land Case No. 95 of 2021 was instituted by the respondent against the applicant. On the first date of appearance before this Court, i.e. on 14/07/2021, this matter was scheduled for mention. The applicant (defendant) was absent. The case was fixed for another date of mention on 28/7/2021. The Court was informed that the respondent has refused the summons. The advocate for the plaintiff produced a summons which was served to the defendant thought a Court process server one Mohamed Mnyeve and was claimed to be refused by the defendant. The Court process server affirmed an affidavit of service to prove that and it is in the Court's records. The Court ordered for another summons to be issued and served to the defendant, db I 2 On 28/7/2021, the defendant was again absent. Mr. James Evarister prayed to serve the defendant through publication. He stated that he is facing difficulties to trace the defendant's whereabout. The prayer was granted. The matter was set for another date for mention on 28/8/2021. On 28/08/2021, in absence of the defendant, the advocate for the plaintiff prayed for an ex-parte order on the reason that the defendant has been served by publication through a newspaper on 03/08/2021 and has failed to appear before the Court. The Court granted the prayers and the matter was set for ex-parte hearing on 22/9/2021. In his reasons for prayer of setting aside the ex-parte order, the applicant has stated that he became aware of the respondent's institution of a Land Case No. 95 of 2021 on 07/2/2022 when he was making a follow up to the respondent on the outcome of their lease agreement. The applicant through his advocate denied to have received any summons from the respondent, and he said further that the applicant and the respondent are residing on the same compound since the respondent is the tenant of the applicant. That, that being the status, the respondent was capable of effecting summons to the applicant as required by the law. That, the applicant was available all the time and there was correspondence between them regarding their lease agreement. That the respondent has ill motive towards the applicant and he misled the Court so as to deny the applicant his constitutional right to be heard and defend the case against him. J, f Ij 3 The applicant avers further that the service by publication was done on 03/8/2021 in Uhuru News paper which is not a wide circulated newspaper. That, an ex-parte hearing order was made on 23/8/2022 which was within 21 days, hence denying the applicant his right to be heard. Opposing vehemently, Mr. Evarister for the applicant replied that the applicant has refused the summons presented by the Court process server one Mohamed Mnyeva on 13/07/2021. That again, there was an attempt to serve the applicant through a Court process server one Rajab Mwaliko but the applicant evades the services by switching off the mobile phone. He stated that, the attempt to inform the applicant about the existence of Land Case No. 95 of 2021 did not end at summons alone but there was constant communication between the applicant and the Principal Officer of the respondent, by which the applicant was informed to appear in Court and defend in the said Land Case. He prayed for the Court to dismiss this application with costs. As per the Court records, it is true that the applicant was served twice through court process servers i.e. on 13/7/2021 and on 27/7/2021. On 13/7/2021 it was said that the applicant has refused the service while on 27/7/2021, it was said that the applicant's whereabout was unknown. Following that, the Court ordered the service by publication on 03/8/2021. On 23/8/2021 the Court ordered ex-parte hearing against the defendant. Mr. Milanzi has brought to my attention that the ex-parte order was entered by the Court before the expiry of statutory 21 days upon which the defendant was supposed to enter appearance and file his defence. As 4 observed earlier, the publication was done on 03/8/2021 and ex-parte order was made on 23/8/2021 whereby twenty 20 days has lapsed out of 21 days by which the defendant was supposed to file his defence. It is for this reason that I will allow this application, taking into consideration that the applicant has a constitutional right to be heard. I hereby grant this application by setting aside my ex-parte order of 23/8/2021. The hearing of the Land Case No. 95 of 2021 shall be heard inter-parties. The applicant who is the defendant in the main suit to file his written statement of defence within ten (10) days from the date of this Ruling. Costs to follow the events in the main case. Dated at Dar es Salaam this 22nd March, 2022. 5