kilimanjaro truck company and another vs leonard paul kisenha 2023 tzhc 22608 31 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAAM SUB REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO.17 OF 2023 (Originating from Civil Appeal No. 47 of2022 before Hon. Mgonya, J.) KILIMANJARO TRUCK COMPANY.......................................... 1st APPLICANT ROWLAND SAWAYA.............................................................. 2nd APPLICANT VS LEONARD PAUL KISENHA.................................................... RESPONDENT RULING S. M. MAG HIM BI, J: The applicants above named moved this court under the provisions of Order IX Rule 9 of the Civil Procedure Code, Cap. 33 R.E 2019 ("The CPC"). He is moving the court for an order setting aside this Hon Court's Ex-Parte Judgment and Decree given on the 20th December, 2022 in Civil Case No. 47/2022. They also prayed for costs of this application and any other order the court deems fit to grant. On the 08th day of May, 2023 the respondent lodged a notice of preliminary objection on points of law that: l a) That, this Court lacks jurisdiction to entertain the instant application. i b) That the instant application is untenable for lack of a decree seeking to be set aside. c) That, the instant application is untenable for being supported and relying solely on an affidavit sworn by an incompetent person. d) That, the affidavit in support of the instant application is fatally defective for containing extraneous matters and hearsay. e) That, the enabling provision in support of the instant application is defective for relying on a non-existing statute. On the 08th May, 2023 the court raised a concern having observed that the suit that is a subject of this application had three defendants while in the current application, there is one defendant (3rd defendant) was completely left out. The parties were ordered to address the court on that issue. Before this court the applicant was represented by Mr. Michael Joachim Tumaini Ngalo learned Advocate, while the respondent was represented by Mr. Aloyce Rugazia, learned Advocate. In addressing the issue raied by the court, Mr. Rugazia agreed with the concern of the Court. He was of the observation that the instant application has omitted the 3rd Judgement Debtor/Defendant in the Civil Case No. 47 of 2022 before Hon. Mgonya, J one Mohamed Mjahid without explanation. He submitted further that it is a common place that the 2 application is incompetent for omitting a key party to a case without leave of the Court. He supported his submissions by citing the case of Salim Amour Diwani Vs. The Vice Chancellor Nelson Mandela African A Institute of Science and Technology and Attorney General, Civil Application No. 116/01 of 2021. In reply, Mr. Ngalo submitted that non-joinder or exclusion of the third defendant is neither improper nor invalid. That even if it was, then the effect thereof is not fatal but a curable defect or irregularity. He argued that it is seen that the defendants were three but Counsel for the latter claims that he acts for the 1st and 2nd defendants only and that the applicants had nothing and have nothing to do with or against the 3rd Defendant. He went on submitting that the 3rd defendant was sued by the or rather joined by in the suit by the respondent and obtained an ex-parte judgment against him as he obtained the one against the applicant herein. Mr. Ngalo went on submitting that there were two reasons why the 3rd defendant has been left out, one is that the applicants have no grievance against the 3rd defendant and two there is no relief or remedy to be sought against the said defendant. Finalising their submission on this part, the applicants Counsel cited and produced the requirement of 3 Order 1 Rule 9 and Rule 10 (2) of the Civil Procedure Code, Cap. 33 R. E. 2023. Having gone through the submission of the parties, and in relation to the Court's concern, it is undisputed that the original civil case and the ex-parte the parties were four, the respondent who was the plaintiff, the first and second applicant who were the 1st and 2nd defendant respectively and one Mjahid Mohamed who is not a party to this application. The applicants are seeking to set aside an ex-parte judgment which that person was the third defendant but he is not a party to this application, the question is whether the omission was proper. Mr. Ngalo's argument is that they have no claim against the missing person. However, the important issue is that the suit that they are seeking to restore by setting aside ex-parte judgment was not theirs, it was a suit filed by the respondent herein. By omitting the said Mjahid means they are choosing for the respondent as who to claim against in the main suit. The above notwithstanding, it is the position of the law that a party cannot be omitted in a case without leave of the court. In the case Salim Anour Diwani vs The Vice Chancellor of Nelson Mandela African Institution of Science and Technology and Another (Civil 4 Application No. 116 of 2021) [2023] TZCA 33 (21 February 2023), Hon. Kihwelo, J. A held that: - "I wish to state at the outset that, court records are considered authentic and should not be easily altered as parties would wish to. It bears reaffirming that, parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not 4 observing that and only with the leave of the court". Again, in the same case it was further reciprocated that: - "We underscored the significance of the authenticity and accuracy of court records which in our considered opinion includes a citation ofparties' names as they appear in the proceedings". From the above principle, I am of the firm view that the records of appeal/application or any subsequent proceedings of the Court have to be consistency with the records from the first instance. Moreso, since the applicants herein were not the plaintiffs in the Civil Case No. 47/2022, omission of the name of Mjahid is an imposition to the respondent by the applicants on who to sue while the demands of the law prohibit omission of parties without leave of the court. 5 Having made those findings, I find the application before me incompetent. This makes determination of the remaining objections raised by the respondent nothing but an academic exercise. The destiny of this application, having been found incompetent is to be hereby struck out with costs which I hereby so do. The application is struck out with costs. 6