LONG FORTUNE V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA MISC. CIVIL APPLICATION NO. 44 OF 2023 (Arising from Civil Case No. 11 of 2022) LONG FORTUNE PVT LIMITED …................................... APPELLANT VERSUS SIMBANGWILIMI & ASSOCIATES ADVOCATES ………RESPONDENT RULING 5th March & 30th May, 2024 S.M. KULITA, J. This is an application to set aside this court’s ex-parte judgment in the Civil Case No. 11 of 2022 delivered on the 10th day of November, 2023. The application has been filed under the provision of Order VIII, Rule 15(1), (2)(a)(b) and (3); and Section 95 of the Civil Procedure Code [Cap 33 RE 2019], by the Applicant’s Advocate, Learned Counsel Cheba Suleiman Kameya, from Hoffen Attorneys of Kinondoni, Dar es Salaam. The application was attacked with the Preliminary Objection on point of law lodged by Mr. Gervas Geneya, Learned Advocate from Respondent’s office, 1 Simbangwilimi & Associates Advocates of Kahama. The said grounds of Preliminary Objection are the following; 1. That the court has been moved under the wrong provision to entertain the application. 2. That, paragraphs (ii), (iv) and (vi) of the affidavit sworn by Dallang Gu offend Order XIX, Rule 3(1) of the Civil Procedure Code [Cap 33 RE 2019] for concealing the source of information. 3. That, paragraphs (ii), (iv) and (vi) of the affidavit offend Order XIX, Rule 3(1) of the Civil Procedure Code [Cap 33 RE 2019] for basing on speculations. 4. That, the affidavit sworn by Cheba Suleiman Kameya offends Regulation 61 of the Advocates (Professional Conduct and Etiquette) Regulations, GN. No. 118 of 9th March, 2018 as the said Advocate did not appear in the proceedings for a Civil Case No. 11 of 2022. 5. That, since the dispositions of paragraph (ii) of the affidavit sworn by Cheba Suleiman Kameya based on the information, not facts which can be proved by himself, it offends Order XIX, Rule 3(1) of the Civil Procedure Code [Cap 33 RE 2019] for concealing the source of information. 2 6. That, the Affidavit sworn by Cheba Suleiman Kameya is incurably defective for containing legal arguments, opinions and conclusions in paragraph (iv). It thus offends Order XIX, Rule 3(3) of the Civil Procedure Code [Cap 33 RE 2019]. The said grounds of Preliminary Objections were argued by way of written submissions. While Mr. Shaban Mvungi, Advocate argued for the Objector, Mr. Cheba Suleiman Kameya submitted for the Applicant. In his written submission in support of the 1st ground of Preliminary Objection Mr. Shaban Mvungi, Advocate, stated that the Applicant moved this court under the wrong provision of Order VIII of the Civil Procedure Code [Cap 33 RE 2019]. He said that the proper provision was supposed to be Order IX, Rule 9. As for grounds 2 and 5, the counsel submitted that the affidavits by Dallang Gu and Cheba Suleiman Kameya do not state in their verification clauses as to where they obtained facts which do not arise from their personal knowledge or understandings. He mentioned the said faults being found at paras (ii), (iv) and (vi) for Dallang Gu’s affidavit and para (ii) for Cheba Suleiman Kameya’s affidavit. He said that, in doing so, the deponents 3 concealed the source of information, hence their affidavits should be regarded defective. Submitting on the 3rd and the 6th grounds of Preliminary Objections, Mr. Mvungi stated that paragraph (v) of the affidavit sworn by Daliang Gu based on speculations ie. rumors, while that sworn by Kameya contains legal arguments at paras (iv)(b), (c), (d) and (e). It also contains opinion at paragraph (iv)(g) and (h). Mr. Mvungi further submitted that Mr. Kameya’s affidavit also contain conclusions at para (iv)(f). According to Mr. Mvungi those paragraphs offend Order XIX, Rule 3(1) of the Civil Procedure Code [Cap 33 RE 2019]. On this, Mr. Mvungi concluded that the court cannot proceed with the application as the remaining paragraphs are inconsequential. As for the 4th ground, that the affidavit sworn by Cheba Suleiman Kameya, Advocate offends Regulation 61 of the Advocates (Professional Conduct and Etiquette) Regulations, GN. No. 118 of 9th March, 2018, Mr. Mvungi submitted that, as the said Advocate did not appear in the proceedings for a Civil Case No. 11 of 2022 which was heard and determined ex-parte against 4 the Applicant herein, it means he is not familiar with the case. Hence, his affidavit in respect of that matter is unreliable, thus, incurably defective. In his reply to the 1st ground of Preliminary Objection, Advocate for the Applicant, Mr. Cheba Suleiman Kameya, submitted that the court is properly moved for this application. The reason behind according to him is that, the application at hand is for this court to set aside the ex-parte judgment. Contrary to Mr. Mvungi’s submission, Mr. Kameya submitted that the proper provision for that purpose is Order VIII, Rule 15 (1) and (2)(a)(b) of the Civil Procedure Code [Cap 33 RE 2019]. He urged that Order IX, Rule 9 cited by Mr. Mvungi is not a proper provision for that purpose. Replying the 2nd and 5th grounds of Preliminary Objections in collective, Mr. Cheba Suleiman Kameya, Advocate, submitted that Counsel for the Objector never elaborated in his submission as to why the affidavits of Dallang Gu at paragraphs (ii), (iv) and (vi) and that of Kameya at paragraph (ii) are not within their personal knowledge and understanding. He said that there is no reason for the Objector’s Counsel to say so while in real sense those facts are within the knowledge and understanding of the respective deponents. 5 As for the 3rd and 6th grounds the Counsel replied that there are no facts in the Affidavits which contain speculations/rumuors, legal arguments, opinion, offensive statements or conclusions. Mr. Kameya added that the Objector’s Counsel never made explanation on this ground of objection. He thus prayed for the said grounds of Preliminary Objections to be disregarded. Submitting a reply in respect of the 4th ground of Preliminary Objection Mr. Kameya stated that he did swear the affidavit for this matter after being aware of the case upon perusing the original case file. He added that, he presented a letter to the Deputy Registrar dated 1st December, 2023 for that purpose and consequently allowed. He challenged that, his act of swearing affidavit for his knowledge of the proceedings for a Civil Case No. 11 of 2022 while he had not entered appearance for that case does not offend Regulation 61 of the Advocates (Professional Conduct and Etiquette) Regulations, GN. No. 118 of 9th March, 2018. Advocate for the Applicant, Mr. Cheba Suleiman Kameya, concluded by saying that the Preliminary Objections hold no water, he thus prays for the same to be overruled with costs. 6 I start my analysis on the raised Preliminary Objection with the 1st ground. In my thorough perusal over the Civil Procedure Code [Cap 33 RE 2019], I have noted that Order IX is for failure of the party to enter appearance on the date scheduled for hearing. The Hearing stated in this section is the ordinary one, that is inter-parties. That is the hearing which involves both parties after the pleadings being lawfully completed, but it happens that the Defendant does not turn up to court. But Order VIII of the Civil Procedure Code [Cap 33 RE 2019] deals with the legal consequence for the defendant’s failure to file WSD, which is a status in this matter. The fact that the Defendant’s (Applicant herein) WSD (Written Statement of Defense) in the original case was rejected for being filed out of time, the implication is that there was no WSD lodged in court. Therefore, the Applicant properly moved this court under the provision of Order VIII of the Civil Procedure Code [Cap 33 RE 2019] which deals with the legal consequence of the defendant’s failure to file WSD. As stated herein before, Order IX deals with failure of the party to enter appearance on the date scheduled for hearing after the pleadings being complete, thus there was no fault in moving the court as alleged. 7 In my analysis I can also agree with Mr. Kameya’s reply submission in respect of the 4th ground of Preliminary Objection, that he did swear the affidavit for this matter after being aware of the case, upon perusing the original case file. Myself I can see in the record the copy of his letter to the Deputy Registrar dated 1st December, 2023 which was for that purpose. Therefore, his act of swearing affidavit on his knowledge of the proceedings for a Civil Case No. 11 of 2022 while he had not entered appearance for that case does not offend Regulation 61 of the Advocates (Professional Conduct and Etiquette) Regulations, GN. No. 118 of 9th March, 2018. Actually the dictates of the said provision do not go to the extent suggested by Mr. Mvungi. The content of the provision is read as follows; “Subject to court rules and practice an advocate shall not be allowed to give evidence in a matter in which the advocate is involved as advocate, except in circumstances where it is permissible” When you read the above cited provision of Regulation 61 of the Advocates (Professional Conduct and Etiquette) Regulations you can note it irrelevant to the matter at hand. The reason behind is that, the Respondent’s Counsel has not justified that the act of the Applicant’s 8 Advocate, Mr. Kameya to swear the affidavit implies that he gives evidence, and that the same does not fall under the permissible circumstances. In short, Mr. Mvungi never stated as to how the act violated the law. Further, the law does not restrict Mr. Kameya to do so for the reason that he was not the Advocate for the Applicant during trial of the original case. In the Civil Procedure Code [Cap 33 RE 2019] particularly at Order XIX which deals with the affidavits, there is nowhere stating that a counsel for a party cannot swear an affidavit on behalf of his or her clients. However, it is clear from case laws that even the Advocate who represented the party in the original case, in some circumstances, can swear affidavit on behalf of the client. See Lalago Cotton Ginnery and Oil Mills Company Ltd Vs. Consolidated Holding Corporation, Civil Appeal No. 130 of 2005, CAT at DSM, in which it was held that as the Advocate who did not represent the party during trial can swear affidavit for the matters raised in subsequent, of which he has personal knowledge only. The purpose of the restriction stated above is that, apart from swearing things not in the knowledge of the counsel for the party, it is to avoid the possibility of an advocate playing the dual role of an advocate and a witness in any given matter (see M/S Consortium of Les Genes (Pty) & Oberoi 9 (Pty) Limited V. Medical Store Department & Attorney General, Misc. Civil Application No. 53 of 2019, HC at DSM (unreported). The complaint by the counsel for the respondent in the matter at hand is that, one of the affidavits was sworn by the applicant’s Advocate who had not represented him in the original case, hence not conversant with the matter. But it is confirmed in the verification which shows that the information is on the knowledge of the said deponent. Indeed, the affidavit is sworn by Mr. Kameya who is the advocate for the applicant and it is vividly clear that he was not the advocate who had previously attendted the case (see paragraph 3 of the affidavit). However, upon perusing the record for the impugned case, the said Advocate managed to know what transpired in that said case. In that respect, Mr. Kameya is competent to swear the affidavit on the issues of information upon perusal of the original record. Having been conversant as to what transpired in the proceedings for the Civil Case No. 11 of 2022, obvious the said deponent can prove the facts on his own knowledge and is capable of replying questions for the matters he has deposed. 10 That being the case, the said Advocate, Mr. Kameya, was right to swear affidavit in the proceedings in which he appears for his client, on matters which are in the said Advocate’s personal knowledge. The fact that the Respondent’s Advocate averred that he went through the original case file, Civil Case No. 11 of 2022 though he had not entered appearance during trial, the implication is that his act of swearing affidavit on it does not offend Regulation 61 of the Advocates (Professional Conduct and Etiquette) Regulations, GN. No. 118 of 9th March, 2018. He was not an advocate for that case but the matter came into his knowledge upon perusing its record, as stated and evidenced through his letter to the Deputy Registrar seeking for perusal of the case file for the said case. As for the Preliminary Objections No. 2 and 5 Mr. Mvungi challenges that the verifications by the deponents are defective for not mentioning the source of information. Upon going through the verification parts for each of the said affidavits I have noticed them stating that, what they have deposed were true to the best of their personal knowledge. It means the facts stipulated therein were perceived by them through their own sensory organs. In that situation, the deponents couldn’t be in a position to mention the source of information. 11 Concerning the 3rd and 6th grounds of Preliminary Objections, that the affidavits contain speculations/rumors, legal arguments, opinion, offensive statements or conclusions, I can actually see them in all sub-paragraphs of para (iv) of the affidavit sworn by the Applicant’s Counsel, Mr. Cheba Suleiman Kameya, that their contents based on the said alleged faults. The remedy for such fault is to expunge those defective paragraphs from the pleading. That being the case, the whole content of paragraph (iv) in Kameya’s affidavit is hereby expunged, but the remaining stand still. As for the affidavit sworn by Daliang Gu, I find it proper with no alleged faults. For the above analysis, apart from expunging the whole content of paragraph (iv) of Kameya’s affidavit, and declaring the remaining paragraphs proper, I find this ground of Preliminary Objection partly sustainable. I can agree it to that extent. However, the said result does not make the whole application unmeritorious. The matter can proceed extraneous to the above said ambit. Now, I tune my mind into the Merit of the Application filed by the Applicant herein, aiming to set aside the ex-parte judgment delivered by this court on 10th November, 2023. 12 Among the grounds raised by the Applicant’s Counsel is that there was no sufficient proof of services for the summons to file WSD which was affected to the Applicant. That, there was no affidavit sworn by the process server showing that the Applicant actually received the summons to file WSD. Submitting on this, Advocate for the Applicant, Mr. Cheba Suleiman Kameya, stated that the Respondent herein served the copy of plaint without summons to file WSD and that she did so to somebody else instead of the Applicant (Defendant). Mr. Cheba further submitted that the fact that the said case was fresh, the Respondent was required to serve the Applicant herself who could then choose an Advocate to represent her for that case. In his reply to that argument, Advocate for the Respondent, Mr. Mvungi, argued that the defective WSD which was expunged from the court records is read to have been endorsed by not only Mr. Goodluck Herman, Advocate for the Defendant but also the Principal Officer for the Applicant, one Song Yong Sheng on the lapsed date of 10th February, 2023. Mr. Mvungi challenged that, for the said scenario, the Applicant herein was aware of the said case and that she actually instructed Mr. Goodluck Herman, their Advocate, to proceed with the matter. 13 Having gone through the original record and submissions made before me for this issue of service, there is no dispute that the copy of plaint was served to Mr. Goodluck Herman, Advocate who signed it as the Defendant’s Counsel on 02/01/2023. However, the said Counsel (Mr. Goodluck Herman) filed a WSD on 13/02/2023 which was the 41st day after the service of summons being made to him. Further, there was no leave of the court for the said WSD to be lodged out of time. As the prescribed time of 21 days for filing WSD had already lapsed, the implication is that the WSD was not filed at all. Now the question that triggers my mind is, whether the service of plaint to the Defendant (Applicant herein) being done to the Advocate instead of the Defendant herself was fatal. According to Mr. Cheba Suleiman Kameya who is the Advocate for the Applicant in this application case, it was fatal. He averred that the Advocate to whom the copy of plaint was served had no instructions to represent the Defendant (Applicant) for that matter. Hence, the Applicant was unaware of the said case due to the wrong service of the copy of WSD to the Defendant. In my view, I can agree with the Applicant’s argument on this. The reason behind being that, as it was the first time for the opponent party (Defendant) to be served the copy of pleadings (plaint) and/or summons for that fresh 14 case, the Respondent ought not to serve the person whom he purported to be the Advocate for the Defendant without herself satisfying on it. When you scrutinize the process in which the copy of plaint and/or summons to file WSD had been made for the original case, you can notice that it was improper, as the question may arise, what made the Plaintiff to believe that Mr. Goodluck Herman was the Defendant’s Advocate or was instructed by the Defendant to represent her in that case which was still fresh? Actually, there is nothing to justify that thing in the original record. Having so noticed, if the Applicant won’t be given the right to defend the suit, Civil Case No. 11 of 2022, her basic constitutional right to be heard, which is stipulated under Article 13(6) of the Constitutional of the United Republic of Tanzania, will be infringed. Mr. Mvungi argued that the act of the Principal Officer for the Applicant, Song Yong Sheng endorsing the WSD on the lapsed date of 10th February, 2023 is an indication that the Defendant was aware of the said case, and that they had actually instructed Mr. Goodluck Herman, Advocate to proceed with the matter. It is true that the said Principal Officer for the Defendant/Applicant endorsed on the said WSD and he did so after the lapse of the prescribed 15 time limit, but my standing point remains the same, that the Plaintiff’s act of serving the pleading/plaint to Mr. Goodluck Herman, Advocate, was not proper as there was no certainty that the said person could actually be used by the Defendant for this case as the company’s Advocate. As this ground alone is sufficient to dispose of the matter, that is, setting aside the ex-parte judgment entered against the Applicant herein in the Civil Case No. 11 of 2022, dated 13th February, 2024, I hereby set aside the ex- parte proceedings, judgment and its resultant decree. I also set aside all orders arisen therefrom. Consequently, I hereby restore the Civil Case No. 11 of 2022 for the same to be determined inter-parties. S.M. KULITA JUDGE 30/05/2024 DATED at SHINYANGA this 30th day of May, 2024 S.M. KULITA JUDGE 30/05/2024 16 ORDERS; 1. The ex-parte proceedings, judgment, decree and all orders arisen thereafter in the Civil Case No. 11 of 2022 are set aside. 2. The said original case is restored for determination inter-parties. 3. The Plaintiff’s Counsel to serve the Defendant’s Counsel with the copy of plaint so that he can file WSD in the original case, Civil Case No. 11 of 2022. S.M. KULITA JUDGE 30/05/2024 17 18