NA TZHC Dar es Salaam4 1

IN THE HIGH COURT OF TANZANIA AT DAR e:ec·r :en - ES ___,SALMIM. - ..--..........-.. CIVIL CASE NO. 74 OF 1996 MAKINYUMBI TIE TATE CO. LTD ••••••••••••••• Pili lliTIFF , · Versus NBC HEAD OFFICER DEFENDANT In Civil Case No. 74/96 the plaintiff MAKIYUMBI ESTATES CO. LTD, a privat~ company incorporated in Tanzania, filed a suit again~t the National Bank of Commerce praying for number ofJreliefs, including payment of T.Shs. 181,754,55,~t The plaint was presented for filing on 18th March 1996 through the services of PM Majithis learned advocate. The record further shows that on 29th May 1996 11 ~ . the def•ndant advocated by Maria & Company Advocates prayed for and was granted - leave to file a wrttt~n statement of defence by 11th June 1996 as wel"l as sn · ~ -_ :ii,.-.. ·' _:, expaI?t,e. he8:ring of ,an_ ~ppli~ation for a Thi.i-d Party Notice ~ainst V.G.CHAlIDA 1 - , --= "'" ' a Co-director in the plaintiff company. Among the prayers in-the applic~~~on for a Third party.Notice was that t~e Notice be served through publication in one issue of the Busiriess Times . : since 'it was alleged that the whe..:-e&'~•)U1:E of the Third Party were not known. ' On 27th June 1996~ this court granted the application for a Third ?ctrty Notice ~nd subsequently the Notice wGs IJ'1biished in -l;h.e Business Times News-- paper on Friday 19th Jhly 1996. · In the supplementary affidavit filed on 15th March 2002 V.G.CHAlIDA the Third Party i.s deponing that he learned of the existence of the Third Party. Notice sometime in September 1996 through his wife who we:3 then in Tanzania, The deponent avers further that Mr. Mkono learned advoc~te whom he instructed td represent him at the time, informed him that the Notice was issued a long while ago and had also been published in the Business Tim~s Newspaper, hence the prayer to,be granted leave to file hfa defenqe out of time. The 1 ; ~ of Mr. V.G.CHAVDA , the third party in that sir.ice the Third Pari-y Notice was not effected on him at the time, the cciurt exercise· its discretion and grant leave for filing the defence out of time. The p~ayer for grant of leave brought under Order 1 Rule 47 and Section 95 of the Civil Procedure Code is strenously reaisted by both the plaintiff and the defendant on ground that . the court ha.snot been properly moved, the order being sought has been over- taken by even ts and the disc?-et:f.onsry powel's of t he Court to enls.rge t irne is curtailed by the provisions of GN 422/94. Mr:•. Maira, who has vehemently lead the objection to the applicatioo, hes s~pported hj~ points of contention with •••••/2. 2 J,;, • the foll"owing cases, namely:- (i) fffl'c V~i.DRUDU.M:EGJI .-(CA) Civ~1:, !PJlli;~tion , •ca.., a No. 20/97 ( ii) K11POOR 1968 EA 618 and ( iii) TH;.1 V MOifoMED R HOH,'.;MEP - Civil . Appeal No. 80/99. In support of the application Mr. Gomba learned counsel for the Third l'i.'>.ri::, has contended emphatically that at the time of publication of the Third Party Notice in the Business Times Newspaper 011 ◄ 9th July 1996 the third party wo.s ·outside Tanzanian fact not disputed by the p~rties. Mr. Gombo submits therefor~ that there was no service of notice to the Third .. Pcrty constructively or expre•~· ssly nnd neither 1-1ko~o & Co. Advocates •or Mr. Mkono in person could be said to hDve instructions t• h,ndle the motter nt the mnteriol time on behnlf of the Third Porty._ Mr. Gomlto further holds the view th""t in the circumstances Mr. VoGo CHJWDA hoa no o.ny men.ns of lrnowhg about the Third Porty not ice, hence the j)apse of period between the dote of publicotif'.m :.:ind the dote when he become aware of its existence~ With regord to the applicable l:iw in effecting service of the Third 0a::-ty Notice Mr. Gomba1 s point of view is th~t Order V Rule 29 of the Civil Procedure Code is the relevant low loying dovm so to spMk the requisite modes of service which are to be proved by the holder of the notice in terms of Rules 30, 31 & 33 if the Code. Mr. Gombo.; in his attempt to distinguish the cases ci~ed by Ivfr. M;;:d.ra, ho.s submitted thnt the nppli~·~tion il<i i;questi~n h~s been properly_ hrought court under Order 1 Rule 17 of the Code providing for specific method a~ ,,e~l as stating the powers of the court to ent~rt.J.in an applico.tion by a third p..,rty • · I hc.ve closely ond onxiously given considerntion to the pleadings and submi,.• ssions of the parties. It is quite oppru-ent in my view th~t the central issue for de~arminotion is whether service of the notice to the third party was effected in accordance with the law. Without belabouring the point, I h~ve no doubt in stnting thct I nm in cgreemet'l.t with Mr. Gombo. leo.rned o.dvoco.te that service of the notice hod not been effected to the thirrl pm-ty in ~ccordo.nce to lnw. It is to be noted th~t Order V of the Civil Procedure Code provides on elabor::1.te m,::inner of effecting services in v-rious situ"ltions. ,1s correctly pointed out by Mr. Gamba Rule 29 of the Code clenrly details the mode of serv'i.ce to o. person residing outside the country elsewhere th~n in Kenyo., Ugnndo, M~l-'.lw1 or Zc.mbio. ::md hns no known agent in Tnnzo.nin empowered to o.ccept service. It iG common ground in the present cose th'."t V .Go CHl;VDA ,. the Third Porty wns outside Tanzonio. for reosons beyond his control ~t the m~teriDl time and there iR no proof th'.'1.t o.t th:it point in time he h..,d ~ proven !'gent empowered to accept service. In essence thel'efore the Third P~rty wos not served either constr1:.cti1 ;?: __ / or expressly. -m 3 Hc.ving disposed of the ce-ntr~l issue of service of notice which, os Mr-. Gombo. ho.a correctly e~~o.s.i.~e,d'i.s one of the pill~s in the dispens~tion of jistice I proceed to deal with the point whether this court c."'ln grnnt le~ve to the Third Porty to file a defence in the suit. Mr. M~ir,?. hns .?.ttrocti7eJy .::xrgued th..,t the court fa not properly moved to grant the .?.pplicotion .'.lnd even it .... '•it is ~so, its discretion."'lry powers to enlnrge the time is curbiled by the o.rnendment brought .?.bout by GN 422/94, which ~llows enl"lrgment to be m..,de only within 21 days of the expiry period. On my side I truce the restrictive view, hence 1.ndit~~ronaewith Vir. Mnirn the le~xned advoc.?.te th~t the situo.tion in GN 422/94 presuposes n rel.:1tionship of pbintiff - defend:i.nt d:cto!:l.t th& defendant, upon, being served, defaults in filing his defence both within the initi~l period as well ns the subsequent ollowo.ble period. In the event I hold the firm view that the discretion~ry powers of this court in enlarging the time for the Third Party to file his defence nre not curt~iled. There is yet .?.nether point of contention advanced by Mr. MnirD to the effect thnt the court hos not been properly moved in the filing of the ~pplicotion under Order 1 Rule 17 and Section 95 of the Civil Procedure Code. It is the lea.rned counsel's point of view thnt the applic::i.tiol:l should h::i.ve been brou3llt under Section 14 of the Law of Limitation. Mr. Gombb on his side opines otherwiseo Rule 17 ·of Order I of the Code de-:lls specific'.1lly with -9$.[Etnc~ ~_l..t,!_:i_rd pnEU:, os is the cnse at h~nd the said rule provides:- II 17., Where n third party notice h~s been served on the th:::.rd party the third porty shb.ll, if he w~s:1es to dispute the plaintiff's claim in the suit ogninst the defenderlt presenting the third party notice or his own liability to the defendo.nt, wli.thin 21 do.ys of the service of third party upon him or such longer period ru3 the c~t m~y on the ~pplicotion of the third p~rty, direct to present to the court o. w.t'i tten statement of his defence. 11 In view of the clear provisions in the rule ~bove quoted, I ~gree with Mr. Gombo.'s submissions that the rule provides for specific method ns well os states the powers of the court in dealing with opplic~tions of Third P~rty including the enlorgment of time. In the finnl on~lysis l[ rule th~t the applic~tion iB competently before the court in terms of the provisions of Order '1 Rule 17. It -is indeed incoveil"O.ble thot Mr. M:iir.?. lenrned advoc:tte, D.fter :L'1voking Order 1 Rule 14, 15 ond 16 in his e.pplic::ition for 'Ihird P::.rty Notice• would hove foiled to direct his leg~l mind to the subsequent rel~ted provisions of Rule 17 of- Order I. Could it not :::tlso be the very re1:1.son thnt the first defendant, o.dvocoted by Mr. Moir~, D.fter moving the court to issue the Third Porty r'Notice turns nround contesting vehemently thot the Third P~rty be re:fusec. leave to file his defence, thus defeoting the very purpose of the Third Pnrty Notice. I nm convinced thnt lloth justice ~~r! equity ocmc1:nd thnt the Third P.'.lI'ty ••• ,... ".,/4 I ' h " be given :ui&qnnte opportunity to exe:.~cise his right to defend himself in the suit under reference. For the reasons I hnve given I )"'.llow the nprlic..,tion for eniorgment o:C time with ccsts .. The Third P.'.'rty- is gr~ted le.,ve to file his defence to the suit within twenty one d-'-YS fl'om the d-,te of this ruling. / ~ I order occordingly~ ,. tL•-\J~ So Ihema f