20101007 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA MISC. CIVIL APPLICATION NO. 22 OF 2009 MANAGING DIRECTOR INTELLIGENCE SECURICO LTD .... APPLICANT - Versus - MATHAYO LOISHIYE SOKOITAN RESPONDENT (Appeal from the decision of the District Court of Arusha) fJ. J. KAMALA - RM) Dated the 20th day of January, 2009 In EMPLOYMENT CAUSE No. 16 of 2007 30th September, & 6 th October, 2010 RULING Before Mmilla, B. M: ,T.: This ruling intends to find resolve to the preliminary point of law raised by the respondent one Mathayo Loishiye Sokoitan iJn Misc. Civil Application No.22 of 2009 instituted by the respondent - the Managing Director of Intelligence Securico Ltd. In that application, the latter is applying for extension of time in which to lodge the appeal against the decision in Arusha District Court Employment Cause No. 16 of 2007. The first ground of preliminary objection alleges that the application for extension of ti.me in this regard is pre-mature for 1 not having exhausted the steps available to sh aside an ex parte judgment, I. while the second ground alleges that the affidajit in support of the application I I is defective for not being sworn. The applican~i is being represented by learned I advocate Ruwaichi while the respondent is ~eing advocated for by learned 11 advocate Lawena. The matter is being disposed of by way of written submissions. I The back ground facts leading to this appli~ation are as briefly stated by I learned advocate Lawena in his submission lin support of the preliminary objection. On 19th November, 2007 the presenr respondent filed before Arusha 11 District Court Employment Cause No.16 of 20~7. The applicant was served as I indicated at page 2 of the typed proceedings 01 the lower court. The service to the applicant was confirmed hy the Distrit Court on 28'h July, 2008 as indicated on page 5 of that court's typed proceedings. I The having satisfied . I I itself that the applicant was properly served, ljthe court ordered the matter to proceed ex parte. The respondent gave evid+ce in support of his claims and called witnesses to support his testimony. On ?0 th January, 2009 judgment was I delivered in favour of the respondent. The sale has never been set aside, thus I is binding on the parties. Relying on the proViIisions of Order IX rule 13 of the 1 1 Civil Procedure Code and the case of Mtond v. Janmohamed (1970) H.C.D. 1 Ii 2 I: II I, i I i i 326, learned advocate Lawena prays this cour~ to uphold the first arm of the 1 ;i preliminary objection. In reply to this, learned advocate Ruwaichi is saying that the forums to which 'I I the matter was referred to, that is CH ODA wp Labour Reconciliation Board I i and the District Court of Arusha had no jurisdiction to entertain it. Admittedly, the argument of the applicant's adyocates may be very convincing but misconceived. I am saying so because it does not answer the point which has been advanced by learned advocate Law~na. As will be appreciated, he i I does not deny that the judgment which is the subject of appeal if the court ,,i grants leave for extension of time was ex parte. I As has properly been submitted by Mr. Lawen~, the provisions of Order IX rule 13 of the Code provide the necessary guidance in the circumstances of the case. 1 That provision states that:- "(l) In any case in which a decree is passed ex parte against a defendant, he may apply to the i court by which ,the decree was 1 passed for an order to set it aside;i and if he satisfies the court that the summons was not duly served:or that he was prevented by any 3 I 1· i I, sufficient cause from appearing wJen the suit was called on for I I: hearing, the court shall make an o,der setting aside the decree as . agamst h'1m upon sue h terms as tqI costs, payment mto . court or II I otherwise as it thinks fit, and shall appoint a day for proceeding Ii with the suit: ' Provided that where the decree is J such a nature that it cannot be set as1'de as agamst . sue h d e £en d ant I: on1y 1t . may b e set. as1'd e as I I' against all or any of the other defen~ants also." i I' i Equally helpful in the circumstances 1s the case of Mtondo v. Janmohamed !I (supra) in which it was held that:- I "The position, however, is renderJd difficult by the fact that the !1 appellant was, and is, unrepresen~ed by counsel and has not had II any legal advice. I think that the appellant should have been I j; advised by the Court of the Rerident Magistrate Lindi, before which he appeared on the 30 th iof July, when he notified his 1 . . of appea 1·1ng, t hat h'1s p1oper 1ntent10n I course was to app 1y to set i aside the ex parte decree. I would go further and say that, as the Ii appellant was unrepresented by lounsel, It was the duty of the I I II 1!- 4 .;: court to give him such advice. As the co-urt has, in my view, failed in its duty to assist a litigant unaided by counsel, I propose to make good such failure of the court, and now advise the appellant to file an application in the Court of the Resident Magistrate Lindi, to set aside the ex parte judgment and decree, under Order 9 Rule 13 of the Civil Procedure Code, and I duly extend the time for him to do so. " Thus, I agree with Mr. Lawena that the applicant was duty bound to abide to the provisions of Order IX rule 13 of the Code just as was advised in Mtondo's case. Thus, the first ground has merits and is upheld. Concerning the second ground, this court hastens to say that it lacks merits and overrules it in so far as it is clear on the record that the affidavit was sworn upon. In conclusion having upheld the first ground, it follows that the application is incompetent and is hereby struck out with.costs. (Sgd) Mmilla, B.M. Judge 6/10/2010 5 Date: 6/10/2010 Coram:- B. M. K. Mmilla, J. Applicant: Absent. Respondent : Mr. Lawena. B/c: Mariamu. Court: Ruling delivered this 6th day of October) 2010 in the presence of learned I advocate Lawena for the respondent and the irespondent himself, but in the I absence of learned advocate Ruwaichi. AT ARUSHA. (Sgd) I B. M. K. Mmilla~ Judge 06/10/2010 I certify that this is a true copy of the original. I:: 11 DISTRICT REGIST AR ARUSHA ' BMM/jn. 6