mansoor mohamed others vs state oil t limited others 2023 tzca 17454 26 july 2023

IN THE COURT OF APPEAL OF TANZANIA AT P A R ES SALAAM (CORAM: NDIKA. 3 .A .. S E H E L . 3.A.. And KHAMIS. J.A.^ CIVIL APPEAL NO. 412 OF 2020 MANSOOR MOHAMED, SWALAHIDIN MOHAMED KHAMIS AND ABDALLAH MOHAMED K H A M IS (Administratrices of the Estate of the Late MOHAMED KH A M IS FAKHI)............................. APPELLANT VERSUS STATE OIL (T) LIMITED.............. .................... FIRST RESPONDENT BILOSTAR DEBT COLLECTORS ...... ..................... SECOND RESPONDENT CAMEL OIL (T) LIMITED..... ............ ..............................THIRD RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Dar es Salaam) (Rwizile. J.^ dated tha 30th day of April, 2020 in Miscellaneous Civil Application No. 791 of 2018 JUDGMENT OF T llE COURT 5th & 26thJuly, 2023 :i NDIKA, J.A.: On 14th December, 2018, Mohamed Khamis Fakhi, who was initially the appellant but is now deceased, filed Miscellaneous Civil Application No. 791 of 2018 (henceforth "the application") in the High Court of Tanzania at Dar es Salaam moving the court to set aside its ex parte judgment dated 23rd November, 2018 and grant him leave to file written statement of defence in Civil Case No. 141 of 2016. State Oil (T) Limited, the first respondent herein, had instituted the suit against the said i Mohamed Khamis Fakhi along with Bilostar Debt Collectors and Camel Oil (T) Limited, the second and third respondents respectively. On 30th April, 2020, the trial court (Rwizile, J.) dismissed the application upon sustaining the first respondent's preliminary objection that the matter, predicated on Order IX, rule 13 (2) of the Civil Procedure Code, Cap. 33, Revised Edition 2002 (henceforth "the CPC"), was time-barred. Resenting the outcome, the appellant now appeals to this Court. As it was before the trial court, the sticking issue before us is whether the application was lodged within the prescribed time. Very briefly, the appeal arises as follows. The first respondent sued the appellant as well as the second and third respondents for a declaration that it was the bona fide purchaser for value and hence the lawful owner of landed property comprised in Certificate of Title No. 39320 situate at Plot No. 130, Block A, Manzese, Kinondoni District, Dar es Salaam. The matter having proceeded ex parte in terms of Order VIII, rule 14 (2) of the CPC after the appellant had failed to present his written statement of defence, culminated in the ex parte judgment complained of being entered by Mutungi, J. on 23rd November, 2018 in favour of the first respondent. Accordingly, the first respondent was adjudged the lawful owner of the property in dispute. In addition, the appellant and the third 2 respondent were ordered to pay jointly the sum of TZS. 50,000,000.00 as general damages. What followed next was that the appellant lodged the application on 14th December, 2018 but, as hinted earlier, it ended in vain upon the trial court sustaining the preliminary objection that it was time- barred. In his decision, the learned judge reasoned as follows: "The judgm ent on record was delivered on 2 J d November, 2018. This application was file d on 14* December, 2018. This means 21 days expired on 13th December, Since the applicable law is Order IX, r.13 (2), then the application was one day out o f tim e." Mr. Geoffrey J. Lugomo, learned counsel, appeared at the hearing for the appellant while Mr. Mussa Kiobya, also learned counsel, represented the respondents. It is necessary at the outset to remark about a preliminary procedural matter that we addressed ahead of the hearing of the appeal. Mr. Lugomo intimated to the Court that the appellant passed away on 3rd January, 2021 and that on 29th March, 2022 the Primary Court at the Integrated Justice Centre, Temeke, Dar es Salaam appointed Mansoor Mohamed, Swalahidin Mohamed Khamis and Abdallah Mohamed Khamis, the administratrices of the estate of the deceased appellant. The learned counsel moved us informally to join the administratrices in the place of the deceased. There being no objection from the respondents, we acceded to the prayer and ordered the requested joinder in terms of rule 105 (1) of the Tanzania Court of Appeal Rules, 2009. Mr. Lugomo filed three grounds of appeal, but he abandoned one ground and canvassed the other two grounds conjointly. The two complaints were as follows: ; 1. That the trial court erred in law and fact in reckoning the prescribed limitation period from the date on which the impugned ex parte judgment was rendered; and 2. That the trial court erred in law for failing to interpret the applicability of the Law of Limitation Act, Cap. 89 (henceforth "the LLA") on the reckoning of the prescribed time limitation. At this point, it is logical to set forth the provisions of Order IX, rule 13 of the CPC as they were couched at the material time upon which the appellant predicated the application to the trial court: "13.-(1) In any case in which a decree is passed ex parte against a defendant, he m ay apply to the court by which the decree was passed fo r an order to set it aside; and if he satisfies the court that the summons was not duty served or that he was prevented by any sufficient cause from appearing when the su it was called on fo r hearing, the court sh all make an order setting aside the decree as against him upon such term s as to costs, paym ent into court or otherwise as it thinks fit, and sh all appoint a day for proceeding with the suit: Provided that, where the decree is o f such a nature that it cannot be set aside as against such defendant only it m ay be set aside as against a ll or any o f the other defendants also. (2) Where judgm ent has been entered by a court pursuant to paragraph (ii) o f sub-rule (1) o f rule 6 o f this Order or sub-rule (2) o f rule 14 o f Order VIII it sh all be law ful fo r the court, upon application being made by an aggrieved party within twenty-one days from the date o f the judgm ent, to set aside or vary such judgm ent upon such term s as may be considered b y the court to be ju st: Provided that, where a decree has been issued p rio r to such application being made, the provisions o f the Law o f Lim itation Act, sh all apply. " It is common ground that the trial court was empowered under Order IX, rule 13 (1) above to set aside the decree it had passed ex parte against the appellant had it been satisfied that summons was not duly 5 served on the appellant or that the appellant was prevented by any sufficient cause from appearing when the suit was called on for hearing. Moreover, Order IX, rule 13 (2) above prescribes that an application for setting aside or varying any ex parte judgment made by a court pursuant to Order IX, rule 6(1) (ii) or Order VIII, rule 14 (2) of the CPC be lodged within twenty-one days from the date of the judgment. However, the proviso to Order IX, rule 13 (2) stipulates that "where a decree has been issued p rio r to such application being made, the provisions o f the Law o f Lim itation A ct shad apply. "Item 5 of Part III of the Schedule to the LLA prescribes thirty days as the limitation period for an application for an order under the Civil Procedure Code setting aside an ex parte decree. Mr. Lugomo's argument in support of the appeal was two-fold. At the forefront, he contended that the trial court wrongly reckoned the twenty-one days period set out under Order IX, rule 13 (2) by failing to exclude the day on which the judgment was rendered (that is, 23rd November, 2018) contrary to the dictates of section 60 (1) (h) of the Interpretation of Laws Act, Cap. 1. That provision enacts the rule that "where a period o f tim e is expressed to be reckoned from , or after, a specified day, that day sh all not be included in the period. "According to 6 him, when the twenty-one days period is reckoned by excluding the day on which the judgment was handed down, the said period expired on 14th December, 2018 upon which the application was lodged. Citing National Bank of Commerce Limited v. Partners Construction Co. Ltd., Civil Appeal No. 34 of 2003 (unreported) on computation of limitation periods, he submitted that the trial court's finding that the matter was lodged out of time was untenable. His second line of argument was to the effect that since the ex parte decree complained of dated 23rd November, 2018 was issued and supplied on 5th December, 2018 before the appellant made the application, the proviso to Order IX, rule 13 (2) of the CPC triggered the application of the provisions of the LLA. In rebuttal, Mr. Kiobya supported the impugned decision, contending that the trial court applied the correct limitation period of twenty-one days and properly reckoned it from the date the judgment was rendered. When queried by the Court if the proviso to Order IX, rule 13 (2) of the CPC was applicable to the application, Mr. Kiobya was resolute that it was inapplicable even though he acknowledged that the issue of the ex parte decree predated the lodging of the application. It is not in dispute that while the ex parte judgment complained of was delivered on 23rd November, 2018 after ex parte proof following the appellant's failure to present his written statement of defence, the application for setting aside the judgment as well as for leave to file defence was lodged on 14th December, 2018. In the premises, we uphold Mr. Lugomo's submission that since the issuance of the ex parte decree on 5th December, 2018, as shown at pages 21 and 22 of the record of appeal, preceded the filing of the application, the proviso to Order IX, rule 13 (2) of the CPC activated the application of the provisions of the LLA to the application. As explained earlier, Item 5 of Part III of the Schedule to the LLA prescribes thirty days as the limitation period for an order under the Civil Procedure Code setting aside an ex parte decree. Reckoning that period in terms of section 19 (1) of the LLA by excluding the day from which such period of limitation is to be computed, the application was filed on the twenty-first day after the ex parte judgment was delivered. It is, therefore, ineluctable to conclude that the matter was lodged within time. We have no doubt in our mind that the learned judge not only applied to the application a wrong limitation period but also reckoned it erroneously by not excluding the day on which the impugned ex parte judgment was rendered. 8 In the premises, we allow the appeal as we find it merited. Consequently, we quash the order by the trial court dismissing the application. We order that the application be remitted to the trial court for hearing and determination according to the law. Costs shall be in the cause. DATED at DAR ES SALAAM this 21st day of July, 2023. G. A. M. NDIKA JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The judgment delivered this 26th day of July, 2023 in the presence of Mr. Godfrey Lugomo, learned advocate for the appellant also holding brief for Mr. Mussa Kiobya, learned advocate for the respondent is hereby certified as a true copy of the original. 9