MISC

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY

AT MUSOMA MISC. CIVIL APPLICATION NO. 000017067 OF 2024 REFERENCE NO. 202407161000017067

BETWEEN KIRIBO LTD.................................................................................... APPLICANT

VERSUS TARIME DISTRICT COUNCIL............................................. 1st RESPONDENT THE ATTORNEY GENERAL.................................................. 2nd RESPONDENT

RULING 03rd & 06th December, 2024 M, L. KOMBA, J,: The applicant has filed this application under Order XXXV Rule 8 and Section 95 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) supported Affidavit of KEBACHO MONATA, Director of the applicant, praying for this court to set aside Summary Judgment and Decree of Civil Case No. 25519 Of 2023 with Reference No. 20231115000025519 from this court (Musoma Sub- Registry) delivered on 19/06/2024 before Hon. M. L. Komba, J. and any other order they deem fit to grant. Page 1 of 9 When served with the application, respondents did not file counter affidavit and when the matter was due for hearing they informed this court about their right to submit on legal issues only. In this matter, applicant had legal service of Mr. Samson Sarno Advocate while both respondents were represented by Mr. Anesius Kamugisha, State Attorney. Mr. Sarno started submission in support of the application by first praying affidavit to be adopted and proceeded that when applicant was served with plaint concerning Civil Case with reference number 20231115000025519 of 2023 against respondent, he engaged an advocate Emmanuel Joakim Msengezi who was instructed to represent the applicant in that suit. He insisted that Mr. Msengezi was engaged on time and was instructed to file application of leave to appear. He said, later on Advocate informed the applicant that he

has filed application for leave to defend under Misc Civil Application with reference number 202403151000005510 of 2024 on time while it was not true and he gave apology not to appear when the matter was scheduled for hearing on 08/4/2024 when it was noted application for leave was filed out of time and there was no extension of time. He said that fact made the matter with reference number 20231115000025519 to proceed ex-parte Page 2 of 9 while denying the applicant right to be heard. It was his submission that what happened was negligence on the side of an advocate and the applicant shall not be punished for the act of his advocate. Mr. Sarno supported his submission by Atuwonekye Mwenda vs Hezroni Mangula, Misc. Land Application No. 5 of 2020 HC decision and Ghania J. Kimambi vs Shadrak Ruben Ng'ambi Misc. Application 692 of 2018 that applicant should not be blamed on blander done by his advocate and it is wrong for a part in civil suit to be punished for the error of the advocate. Mr. Sarno insisted that it was advocate who lately filed application for leave and he failed to apply for application of time. Ail those turn to the applicant and was denied right to be heard and defend in Case number 25519 of 2023. Further, counsel submitted on what he calls faults in the proceedings of Case number 25519 of 2023 which resulted to summary judgment, that there was no notice to

applicant to attend in court when the summary judgment was issued which is contrary to Order XX Rule 1 of the CPC. Applicant was not served when expert judgment was issued contrary to the law. He went on submitting that section 28 of the CPC demand parties to be notified in ex-parte hearing. The provision of law used Page 3 of 9 word 'shall' to mean that was mandatory but in the proceedings revealed no notice was issued. Mr. Sarno bewailed that respondent did not prove his claims to the tune of TZS 174z 582,771.32 which he claimed to be outstanding service levy from applicant. While noting that paying service levy is requirement of the law, he submitted that there was no exhibit proved that applicant was supposed to pay TZS 174, 582/771.32. For the justice to be done, he prayed this court to accept his prayers and set aside summary judgment and under Article 13 of the Constitution make an order applicant be heard. Mr. Kamugisha opted to argue on legal issue only while group submission by counsel Sarno into three parts; one, is the issue of negligence on the side of the advocate who was engaged and failed to perform his duty. It was his submission that a party to the suit is bound to make follow up of the case and cannot blame the advocate. While citing decisions in Moteswa Lusinde vs Nokia Solutions and Network, Misc Application No 101 of 2023 and Lim Han Yung & Another vs Lucy

Treseas Kristensen (Civil Appeal 219 of 2019) [2022] TZCA 400 he was of the position that applicant failed to discharge his duty of making a follow up of his case. Page 4 of 9 About failure to issue notice of ex-parte judgment, he said through his perusal and reading, he found Order XXXV is about the summary suit and there is no provision that require issuance of notice on summary judgment. He went on submitting that Order XXXV Rule (2) is clear that in the absence of any leave to defend, the allegation in the plaint shall be deemed to be admitted. So, plaintiffs needed not to prove anything in the plaint. In the last issue about proving the amount claimed by respondent, he referred Order XXXV and submitted that respondents were not supposed to prove anything with evidence and prayed this court to disallow the application. In his rejoinder Mr. Sarno reiterate his submission in chief and further clarified that summary suit do not deny the right of notice to the other party as the order cited is silent on that but order XX rule 1 used word shall and summary judgment fall under the same pit with ex-parte judgment. The duty of this court is to determine if the application has merit. Counsel for applicant started by complaining that it was advocate Msengezi who failed to file on time application for leave to defend in a summary suit as a result leave was not obtained. He further

agreed that there was no application for extension of time but complained that Page 5 of 9 applicant was denied his right as that was negligence of an advocate who was fully instructed. He finds it was not proper to punish applicant for the conduct of his advocate. He backed up his submission by Atuwonekye Mwenda vs Hezroni Mangula (supra). State attorney while submit on legal issue was of the position that party to a suit is duty bound to make a follow up of his suit. Counsel submitted that applicant was informed everything was in order while it was not true. He did not work on information so as to know if what was informed was correct. That means applicant did not see the copy of application for leave in which he could note on dates and applied for extension of time. I find applicant relaxed and did not make a follow up of his case. The case of Atuwonekye Mwenda vs Hezroni Mangula (supra) though not binding to this court, it is distinguishable as in that case counsel filed chamber summons and affidavit in time and failed to make appearance. In that case, court finds there is evidence in affidavit and cannot dismiss as the advocate could have no new evidence. In the case at hand, advocate filed application out of time, it is like no application was filed. And so far as applicant did not make a follow up so that he can pray for extension of time, I agree with Mr. Kamugisha that

applicant failed to discharge his duty. The court Page 6 of 9 in Lim Han Yung & Another vs Lucy Treseas Kristensen (supra) said; 'It Is also our considered view that even If the appellants were truthful in their allegations against their erstwhile advocates1 inaction, negligence or omission, which generally, does not amount to good cause, they themselves share the blame. The appellants cannot throw the whole blame on their advocates.' By failure to make a follow up of his case, the applicant shares the blame and not the advocate alone. He denied himself to utilize right to be heard which is provided with conditions. Further counsel for applicant presented that the claim against respondent was not proved, that respondent had to receive TZS 174, 582,771.32 as service levy. It is true that plaintiff did not testify extensively during hearing to account how the amount in decree was obtained, that is they did not prove with evidence. However, that is not requirement of the law. At this juncture, I join hands with state Attorney submission that there was no need to prove allegation in the plaint and the submission holds no water. Order XXXV rule 2 (2) is clear that; '(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from the judge or magistrate as Page 7 of 9 hereinafter provided

so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations In the plaint shall be deemed to be admitted, and the plaintiffshall be entitled...,.' The last submission was on issuance of Notice. Mr. Samo register his concern basing under Order XX of the CPC that court had to issue notice prior to pronounce judgment but applicants were not served. To him this is irregularity. State Attorney submitted that so far as the suit was filed under Order XXXV, that order did not dictates issue of notice before judgment and pray this court to found the submission lacks merit. It is true that the suit which resulted to summary judgment in case with reference number 20231115000025519 was filed as summary suit under Order XXXV. The Order is silent on issuance of notice before judgment just as submitted by State Attorney. I read further rules in that order and find this; XXXV R. 11 'Save as provided by this Order, the procedure In suits under this order shall be the same as the procedure in suits institutedin the ordinary manner.' That provision forced me to read Order XX about Judgments and find it is the requirement of that order notice to be issued to parties to the case before judgment is pronounced. I had much time to read proceedings of case with reference number 20231115000025519 and Page 8 of 9 find no

notice was issued to defendant on the judgment day. As submitted by Mr. Sarno, that requirement is mandatory. So far as the notice under Order XX of the CPC was not issued to applicant, then the procedure was vitiated. Under Rule 8 of Order XXXV, I hereby set aside Summary Judgment and Decree of Civil Case No. 25519 Of 2023 with Reference No. 20231115000025519, I proceed to set aside execution and I hereby order defendant to make appearance in case with reference number 20231115000025519 and defend the claim as in plaint. It is so ordered. M. L. KOMBA Judge 06th December, 2024 Page 9 of 9