MGENI

IN THE HIGH COURT OF THE UNTIED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT PAR ES SALAAM CIVIL APPEAL NO. 26128 OF 2023 (Originating from Miscellaneous Civil Application No. 105 of 2023 in the District Court of Kinondoni) M-GENI TANZANIA INSURANCE CO. LTD....................................... APPELLANT VERSUS AGAPITI EDWARD KOBELO..............................................................RESPONDENT JUDGMENT 25th March, & 17th Oct. 2024. DYANSOBERA, J.: The instant appeal has been filed assailing the ruling and order passed by the District Court of Kinondoni in Civil Application No. 105 of 2023 dated 1st November, 2023 whereby the District Court dismissed the appellant's application for extension of time to set aside the ex parte judgment. In order to understand and appreciate the points involved in this appeal, it is necessary to set out certain facts. Before the District Court of Kinondoni, M-GEN Tanzania Insurance Co. Ltd, the present appellant, instituted Civil Application No. 105 of 2023 seeking extension of time in which to set aside the judgment passed ex parte her on 2nd May, 2022 in Civil Case No. 222 of 2021. The grounds that had been advanced in support of the application were that the appellants were unaware of the case as they were not only not served with the summons to appear and defend the suit but also were not notified of the date of the delivery of the ex parte judgment. i It was the appellant's argument that when she became aware of the case, the time to file an application to set aside the ex parte judgment had elapsed. She further argued that the ex parte judgment was tainted with illegality in that the appellant was ordered to pay general, exemplary and aggravated damages plus interests while the case against her had not been proved to its hilt. These allegations were refuted by the respondent through her counter affidavit. It was her argument that the appellant had been duly served with summons to defend but deliberately ignored to make appearance and defend the suit. The respondent supported her stance by attaching an affidavit of the process server as proof of service. The other evidence on proof of service was a piece of Mwananchi Newspaper dated 15th December, 2021. After hearing the application, the learned Principal Resident Magistrate was satisfied that there was inordinate delay which was not explained away and that the appellant failed to exhibit any diligence in prosecuting her case. The application was thus dismissed with costs to the respondent. The appellant was aggrieved by that decision hence this appeal. In the memorandum of appeal dated 22nd day of November, 2023, the the appellant has set out five grounds of appeal. The appellant's complaint in the first ground of appeal is that the Learned Trial Magistrate erred in law and fact by ruling in favour of the respondent basing on the affidavit of proof of service of summons which its authenticity is questionable and that the affidavit of the process server is not free from flaws. He reasoned that the suit is of 2021 but the affidavit 2 indicates that on 23rd September, 2023, Patrick Nkwera received the summons dated on 23rd September, 2023, and on the same date he sen/ed the same to the appellant but that the summons that they have attached therein indicates that it was issued on 6th September, 2021 and not on 23rd Setember,2023 as the evidenced by the Respondent in the affidavit of service. He further contended that said affidavit of service does not only contradict itself on the date of issuance and service of summons, but also contradicts with the Court's records. He asserted that while the respondent insists on claiming that the appellant was served with summons on 23rd September, 2021, the Courts' records indicated otherwise. Counsel clarified that the judgment of the Court at page two supports that the appellant was served on 17th November, 2021 but that there is neither stamp of the appellant endorsed in the summons to show that the same was served nor is there a name of the Officer of the Appellant to show that the Summons was received. Counsel also contended that the place where it was supposed to be written the one who received the summons does not show who received the same, a fact which casts a lot of doubts on the authenticity of the summons to show that it was received by the appellant herein nor his officer. In counsel's view, the uncertainty of the information from the Affidavit of service, and discrepancy on the exact date when the appellant was served with summons between the court's records and the affidavit of service, raises doubt on service of the said summons to the appellant and that if the summons was duly served as purported, the dates of service would have matched, counsel for the appellant insisted. He wondered the 3 unusual mixing up of dates and years and invited the court to disregard the affidavit of the process server alleging that it is a forgery and unreliable. To support this argument, counsel for the appellant relied on the case Ignazio Messina v. Willow Investment SPRL and another, Civil Appeal 105 of 1998) [2002] TZCA 9 (21 June 2002), [2002] TZCA 9, CAT at Dares Salaam at page 4; on the authority that an affidavit which is tainted with untruths is no affidavit at all and cannot be relied upon to support an application. False evidence cannot be acted upon to resolve any issue. In the second ground of appeal, the appellant is faulting the lower court for finding that the appellant was properly served with summons to appear and defend Civil Case No.222 of 2021 by publishing summons on the newspaper in non-observance of the prerequisites of substituted service by way of publication. According to him, the trial court was duty bound before issuing an order for substituted service to satisfy itself that, the appellant was avoiding service or it was impossible to serve her in an ordinary way or he is avoiding sen/ice. Counsel for the appellant placed reliance on the case of Abutwalib Musa Msuya and two others v. Capital Breweries Ltd and two others, Civil Revision No. 2 of 2012) [2016] TZCA 549 (25 April 2016), [2016] TZCA 549, CAT at Dodoma at page 15; in which it was held 'The appropriate law under Order V rule 20 of the CPC prescribes conditions that the trial Judge should have met to his satisfaction before granting an order of substituted service. It must be shown either that the defendant is keeping himself away to avoid or evade service of summons; or there is any reason shown on the record that the summons could not be 4 effected on the first and second defendants in the ordinary way' Counsel was emphatic that the appellant herein not served with summons to appear and defend his case, partly because, there is no proof of service of the said summons as the summons was not endorsed anywhere to prove that it was duly received and partly because, authenticity of the affidavit of service is questionable. In the counsel's view, the respondent deliberately failed to serve the appellant with the summons to defend his case as required by the law, and deprived him the right to be heard which right is enshrined in the Constitution of the United Republic of Tanzania of 1977 as amended from time to time. Under the provision of Article 13 (6)(a) of the Constitution of the United Republic of Tanzania of 1977 as amended from time to time. Counsel for the appellant contented that it has been held out in a number of cases that failure to give parties rights to be heard affecting the rights of any person is fatal and constitutes. Reference was made on the case of National Insurance Corporation (T) Limited v. Shengene Ltd, Civil Application No. 230 of 2015 [2020] TZCA 261 (27 May 2020), [2020] TZCA 261. The court was also referred to the case of Mohamed Salim Said, the Administrator General and Mabunda Auction Mart, Civil Application for Revision No. 68 of 2011 (unreported) in which the court had the occasion to discuss the consequence which should follow a failure to afford a hearing any decision affecting the rights of any person is given: '...Its breach or violation, unless expressly or impliedly authorized by law, renders the proceedings and decisions and/or orders made therein a nullity even if the same decision would have been reached has the party been heard...." 5 In the third ground of appeal, the appellant's complaint is that the Learned Trial Magistrate erred in law and fact by disregarding the fact that the trial proceeding contains illegalities which is the best ground for extension of time. Admitting that in applications for extension of time it is the principle of Law that one has to account for each day of delay, counsel for the appellant, however, contended that Court of Appeal in several occasions has ruled that wherever there is illegality in the decision from which the extension of time is being sought, even where a party has failed to account for each day of delay, such extension should be granted. To cement his argument, counsel relied on the case of the Attorney General v. Emmanuel Marangakis (as attorney of Anastasios Anagnostou) and 4 others, (Civil Application No. 138 of 2019) [2023] TZCA 63 (24 February 2023), [2023] TZCA 63, CAT at Dar es Salaam, at page No. 19; Winding his submission in the third ground of appeal, counsel for the appellant submitted that the appellant has outlined the illegalities on the proceedings by the trial court which prejudiced his rights, including the right to be heard and the right to be notified on the date of delivering the ex-parte judgment. It is his view that it is immaterial where or not the Appellant has accounted for each day of delay and, therefore, the trial Magistrate was mandated to order for extension of time as the appellant herein then the applicant had already exhibited the illegalities contained in the judgment particularly on the service of the summons also as far as right to be heard is concerned which is the fundamental right in dispensing of justice to the party. 6 Arguing in support of the fourth ground of appeal that, counsel for the appellant was uncomfortable on the trial court's failure to give the decision on whether the notice of ex-parte hearing and delivering the ex- parte Judgment was served to the Appellant or not. This, according to him, was also an illegality as the appellant was not duly informed on the date of ex-parte judgment, the result of which denied the appellant the right to be informed with the ex-parte judgment so that he could act on his further right at the right time. In the fifth ground of appeal, the appellant is faulting the learned Principal Resident Magistrate for not properly evaluating the appellant's submission and a result he arrived an erroneous decision. In his written submission in reply, counsel for the respondent proposed and rightly so, that the issue for determination was whether the appellant had demonstrated reasonable and sufficient cause warranting the court to exercise its discretion in his favour and grant extension of time. Making reference to the case of Regional Manager TAN ROADS v. Ruaha Concrete Company Ltd, Civil Application No. 96 of 2007, counsel re-iterated that, what constitutes sufficient reason cannot be laid down by any hard and fast rules this must be determined by reference to all the circumstances of each particular case. This means that the applicant must place before the court material which will move the court to exercise its judicial discretion in order to extend the time limited by the rules. Counsel was of the view that the court has to taken into account other factors including those stipulated by the Court of Appeal in the case of Lyamuya Construction Company Ltd versus Board of Registered Trustee of 7 Young Women's Christian Association of Tanzania Civil Application No. 2 of 2010. Reacting to the first and second grounds of appeal, counsel for the respondent submitted that it is from the records that the appellant was duly served with summons of 27th September, 2021 through a process server named Patrick Nkwera who swore an affidavit to the effect where the appellant neglected to appear to defendant her suit. Further, the respondent went further and effected service by way of publication via circle Newspaper dated 15th day of December, 2021 and that since the appellant is a famous company still she dishonored the summons again. Counsel for the respondent also informed the court that the appellant exhibited an inordinate delay and lacked diligence. In fine, it was argued on part of the respondent that the appellant failed to satisfy any of the conditions stipulated in the of Lyamuya case (supra) Respecting the third ground on illegality, counsel for the respondent refuted any presence of illegality. He said that the illegality was not established. Calling in aid to Lyamuya case (supra), counsel for the respondent was emphatic that such a point of law must be that of sufficient importance and must be apparent on the face of the record, such as a question of jurisdiction; not one that would be discovered by a long drawn argument or process. It was the counsel's argument that in our case, the illegality alleged by the appellant does not fall within the ambit of jurisdiction or time limit. In reply to the rest grounds of appeal, the respondent's Counsel maintained that the appellant's application was dismissed because the 8 delay was inordinate and the appellant failed to place before the court material which would have moved the court to exercise its judicial discretion to extend the time. In a brief rejoinder, counsel for the appellant re-iterated his submission in chief and, in addition, contended that there was ill-motive on part of the respondent who, with design to proceed ex parte, led to the tempering with the affidavit of service and a denial of the right to be heard. I have considered the trial court's record, the grounds of appeal and the submissions of the learned advocates for the parties. I have also taken into account the legal provisions and case laws referred to me. There is no doubt that the appellant's application which is the genesis of this appeal was filed under section 14 (1) of the Law of Limitation Act [Cap.89 R.E.2019] which enjoins the court to extend time upon any reasonable or sufficient cause being shown. It is trite law that when considering an application for extension of time, the court has discretionary power to grant or refuse to grant it. The discretion, however, must be exercised judicially i.e. upon good reason. It is on record that the trial court, after hearing the parties, came to the finding that the appellant failed to demonstrate sufficient cause to warrant it exercise its discretion in her favour. 9 The issue calling for determination is whether the learned Principal Resident Magistrate exercised his discretion judiciously. While the respondent was the court to answer it in the positive, the appellant holds opposite view. As far as the appellant's first and second grounds of appeal are concerned, the complaint is that the appellant was unaware of the case as she was not only was she not served with summons to appear and defendant the suit but also was also not notified of the date of delivery of the ex parte judgment. As to the proof of service exhibit by the respondent, the argument of the appellant is that the authenticity of the proof of service was questionable. On part of the respondent, it was contended that the appellant was duly and properly by the process server who filed an affidavit of service in proof. According to the trial court's record, the appellant was served on 27th September, 2021 through Patrick Nkwera, the process server. A sworn affidavit was duly filed in proof of the service to the appellant. It is on record that the appellant neither appeared nor filed a statement of defence. 10 Despite the efforts to do service in an ordinary manner, the trial court granted the respondent's request to resort to another legal mode of service, that is, by substituted service through publication. It is also on record that the appellant was served by publication in Mwanchi Newspaper dated 15th December, 2021 and that it is after all efforts were unsuccessfully exhausted that the trial court decided to proceed ex parte, hence the ex parte judgment which was given on 2nd May, 2022. According to the record of the lower court, the appellant was notified on the execution proceedings on 25th April, 2023. The record is clear that on 18th May, 2023, through Mr. Nkwera, the appellant requested in writing to make perusal and it is not until on 30th May, 2023 when the appellant filed the application for extension of time in which to apply to set aside the ex parte judgment. Apart from the fact that the appellant was duly served personally and through publication but made no appearance, the same appellant was also notified of the execution proceedings on 25th April, 2023, it is not until on 30th May, 2023 when he filed the impugned application. The appellant did not explain the whole period of delay. Counsel for the appellant appears not to have disputed the delay and failure to explain it but argues that wherever there is illegality in the decision from which the extension of time ii is being sought, even where a party has failed to account for each day of delay, such extension should be granted. It is my humble but considered view that the principle audi alteram partem does not take away the right and power of the decision maker to make a decision on the material available before him particularly in the circumstances where that party was afforded sufficient opportunity of being heard and presenting his defence but the same opportunity was not duly exercised. This leads me to the third ground of appeal where counsel for the appellant maintained that it was wrong for the learned trial Resident Magistrate to disregard the fact that the appellant had exhibited illegalities in the service and in the ex parte judgment. It is true and decisions abound that it is settled law that a claim of illegality of the challenged decision constitutes reason for extension of time regardless of whether or not a reasonable explanation has been given by the applicant to account for the delay. See The Attorney General v. Emmanuel Marangakis (as attorney of Anastasios Anagnostou) and 4 others (supra) and VIP Engineering and Marketing Limited v. Citibank (T) LTD, Consolidated Civil Reference Nos. 6, 7 and 8 of 2006 (unreported). In the latter case, the Court of Appeal of Tanzania stated that: 12 'It is, therefore, settled law that a claim of illegality of the challenged decision constitutes reason for extension of time under Rule 8 regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay' However, in my view, not every allegation of illegality should warrant the court to extend time. Applying this principle of the law blindly and without reservations is likely to invite parties who lost their cases some years ago who just want to see the court's rooms but have no no interest in seeking rights. That is why, I think, the same Court of Appeal in the case of Lyamuya (supra) made the following pertinent observations as follows: - 'Since every party intending to appeal seeks to challenge a decision either on points of law or facts, it cannot in my view, be said that in VALAMBIA S case, the court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points of law should, as of right, be granted extension of time if he applies for one. The Court there emphasised that such point of law must be that of sufficient importance and, I would add that it must also be apparent on the face of the record, such as the question of jurisdiction; not one that would be discovered by a long-drawn argument or process.' As rightly submitted by counsel for the respondent, the appellant failed to satisfy the threshold set in the Lyamuya case (supra), that is the a point of law of sufficient importance and which is also apparent on the face of the record. This also disposes of the fourth ground of appeal. With respect to the fifth ground of appeal, the appellant is faulting the learned Resident Magistrate for not properly evaluating the appellant's submission and as a result he arrived at an erroneous decision. With respect to counsel for the appellant, the attack has no any legal justification. The record is clear that the learned trial Resident Magistrate 13 considered and evaluated the evidence that was adduced before him. He came to the conclusion that the appellant had not shown sufficient cause for extension of time. As to the submission, it is trite that submission is not evidence. This legal position was elucidated by the Court of Appeal in the case of Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman, Bunju Village Government & 11 Others, Civil Appeal No. 147 of 2006 in the following words: 'Submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are elaborations or explanations on evidence already tendered. They are expected to 8 contain arguments on the applicable law. They are not intended to be a substitute for evidence'. For the stated reasons, I am satisfied that the grounds of appeal by the appellant lack any legal merit. Before I end my judgment, a point of remark is apposite. Parties must take the rights seriously an must comply with their obligations, to bring the point home, I can do no better than insisting the position of law as elaborated by the Court of Appeal in the Mbuyula Coal Mining Limited & 2 others v. Asiafrica International Logistics and Trading Company Ltd, Civil Application No. 538 of 2023 when borrowing the wisdom of the Supreme Court of India whereby Carr J. in Su-Ling Vs. Goldman Sachs International, [2025] EWHC 759 (Comm.), that: 'Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain 14 justice efficiently and proportionately, and that the courts enable them to do so'. Having analysed the position of the law and the case laws as stated above, it is my finding that the trial court exercised its discretion judiciously when declining to grant extension of time. This appeal fails and it is dismissed with costs to the respondent herein this court and in the court below. Order accordingly^ J V W.P. Dyahsobera JUDGE 17.10.2024 This judgment is delivered under my hand and the seal of this Court on this 17th day of October, 2024 in the presence of Mr. Davis Rweyemamu, learned counsel for the respondent and holding brief for Mr. Ambrose Nkwera, learned advocate for the appellant/K W.P. Dyansobera JUDGE 15