Moshi Makuru

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA CIVIL APPEAL NO. 000024076 OF 2024 REFERENCE NUMBER 202409261000024076 (Arising from Civil Appeal NO. 21 of2023 of Musoma District Court, Originating from civil Case No.256 of2020 at Musoma Primary Court) MOSHI MAKURU ................................................................. APPELLANT VERSUS SUNGURA NYANGARYA...................................................... RESPONDENT JUDGMENT 10th & 18th February, 2025 M. L, KOMBA, J; This is the second appeal where two lower courts had concurrent decision over the dispute between the parties. Previous, the appellant filed application at the trial court (Musoma Primary Court) This appeal originates from a civil application No.256/ 2020 before the Primary Court of Musoma, in which the appellant filed application for an order to set aside an ex- pa/tejudgement which was delivered by trial court in favour of the respondent and further, the trial Court ordered the appellant to pay to the Page 1 of 9 respondent a compensation to the tune if 7ZS. 10,700,000/= and awarded costs of the suit to the tune of TZS. 100,000/=. Upon full trial, the trial court ruled against the applicant by dismissing her application. She was aggrieved with that decision, the appellant appealed Musoma District Court (first appellate court) challenging the decision of the trial court. Her two grounds were analysed and found less merit as appellant had a knowledge on the existence of the suit before the trial Court. The appeal was dismissed. Tirelessly, the appellant is here in court with three grounds of appeal challenging the decision of the first appellate court that; 1. That, the trial magistrate erred in law and facts for failure to set aside the ex-parte judgment despite the fact that the appellant was not properly served with summons to appear for hearing in Civil Case No. 246/2020 in the Primary Court of Musoma. 2. That, the trial magistrate hopelessly found that summons to appear in court can be served vide phone call. 3. That, the trial magistrate erred in law to determine that the appellant was dully served to appear in court without proof of service of summons. When the matter was read for hearing, parties agree to file written submission in both adhered to the filing schedule issued. Both had no representation and therefore they filed own submission. Page 2 of 9 Appellant combined the first and the third ground of appeal and submitted that she was not served with summons and therefore her right to be heard was curtailed which is constitutional right as provided under Article 13 of the Constitution of the United Republic of Tanzania. She went on submitting that service of summons must be effectively and strictly adhered to the rules and proof of service is necessary before any action is taken by court. She referred me to Caritas Kigoma vs KG Dewsi Limited, Civil Appeal No.'47 of 2004 that service must be done in accordance to the law. Further it was her submission that in Kaiza Katamba Mwalugaja vs Obby Sikuangukaa Mwampaja, Civil Appeal No. 7 of 2022 this court (Mbeya Zone) hold that it is not enough to rely on process server affidavit as sometime they could be false, rather the court should investigate to find if the summons was dully served. Appellant refer the appeal at hand that summons was not dully served as per requirement of the law and therefore the ex-parte judgment was nullity. On the second ground appellant submitted that both Ward Executive Officer and the Street chairman called the appellant through mobile phone which is not service in the meaning of the rules and was not easy for the court to ascertain whether appellant was contacted or actually served while Page 3 of 9 insisting that the word dully served means in a manner that is correct or expected according to the law or rules. Appellant position after the definition of the word dully is that, summons was not dully served to her to warrant ex-parte order. That being not enough appellant complained of irregularity and illegality which was not considered by the trial court and which, as per her submission, caused failure of justice and abuse of court process. She prayed this court to revisit its previous decision in Said Mussa Makolela vs Lilian John Mosha and 2 others, Civil Appeal No. 222 of 2019 where decision of the district court was nullified. On the other side respondent started his submission by the 1st ground that there is evidence proving service of summons to the appellant herein and the same was never disputed by the appellant through her submission, as described at page 4 of the judgment in Civil Appeal No. 21/2023 before appellate court. Respondent went on submitting that what was supposed to be done by the trial Magistrate was to 'make a critical analysis of evidence on records'observed in the case of Abel Masikiti vs Republic, Criminal Appeal No. 24 of 2015. That was done by the first appellate court and came out with the findings that there was two Page 4 of 9 summons which was duly served to the appellant herein, despite her knowledge of the existence of the civil case against her in the trial court, appellant refuse to show up in court on a due date claiming to have financial problems. Respondent then joined the second and third grounds of appeal and submitted that the appellant was never served with the summons via phone call; however, she was informed of the existence of the case against her in the primary and the court order summoning her attendance on the due date. When she was communicated over the court order that she has to appear, appellant replied that she is facing a financial difficulty and she won't be able to attend in court unless she has a bus fare. The facts which she never disputed. That means, as submitted by respondent, appellant had knowledge of existence of the suit but, she deliberately refused to appear in court. Regarding proof of service of summons, it was the submission of the respondent that the said summons was before the Musoma primary court records in which the appellant responded despite the fact that she had a knowledge of the existence of the civil case against her in court, just as described at page 4 of the judgment in Civil Appeal No. 21 of 2023 before Page 5 of 9 appellate court. Proof of service was tendered in court as per Rule 19(1) of the Magistrates Courts (Civil Procedure in Primary Courts) Rules GN No. 310 of 1964 (the Rules). Then he prayed this court to find the grounds of appeal raised and submission made together with prayers as one without merit and proceed to dismiss the appeal with costs. I am tasked to find if the appeal has merit, in doing so I shall combine all three grounds of appeal in which appellant is faulting the first appellate court in its findings. It is on record that summons to appellant were served twice and each round she failed to appear with apology, as submitted by respondent that her economic position was not well. The matter proceeded ex-parte and the appellant was dissatisfied. A directed in the case of Kaiza Katamba Mwalugaja vs Obby Sikuangukaa Mwampaja (supra) and Abel Masikiti vs Republic (supra) as submitted by both parties respectively, what was supposed to be done by the first appellate court was to investigate or to make a critical analysis on whether summons was served to appellant. In record, there is affidavit of two leaders who are mandated to serve summons to parties, both leaders inform the court under oath that appellant was looking for bus fare and her court attendance shall depends on availability of the same. Page 6 of 9 Record of the court has to be respected. See Halphan Sudi vs. Halieza Chichiri (1998) TLR No. 527. Appellant complained that was not served which was meant by law and maintained that she was not dully served. Let us look at the provision of the law. Parties had matter at the Primary court and the rules as previously cited provides that; 19 Service (1) ////////////////////// (2) Where the court is satisfied that persona! service cannot be effected or cannot be effected without undue delay and expense, it may direct that the summons or document be served either by post or by leaving it with an adult male member of the family of the defendant or with some adult male servant residing with him, or with his employer, or by affixing a copy of the summons or document on some conspicuous part of the last known residence of the defendant and another copy thereof on the court notice-board. (3) Service under subrule (2) may be proved- (a) in the case of service by post, by evidence that a postal packet was received by the defendant, supported by a certificate of an officer of the court that the postal packet contained the summons; (b) in any other case, by the affidavit or evidence on affirmation of the person who effected the service. Page 7 of 9 The first appellate court analysed what happened and find person who effect service swear affidavit in which they explain what was responded by the appellant. Filing of affidavit by the process server is one of the requirements of the law and it was adhered. May I go further and explain why summons are issued. Courts usually issue summons so as to make sure other party is aware of the existing matter in court. Is a means of convey massage to the other party. If, as narrated by appellant that she was reached over mobile phone and was informed of the summons, to my analysis, appellant was informed and therefore was aware of the matter which was in court serve that she had no bus fare. That was as a flip I . reason. If parties to a case would be allowed to make court attendance basing on their economic position courts would have backlogs of cases. That was foreseen by legislature who provides what to do in case the other party has knowledge of existence of the case. Courts allowed to proceed ex-party as provided under rule 23 of the cited rules. There is no doubt that right to be heard is a constitutional right and each party to the suit has to enjoy that right that's why trial court issued summons twice to make sure appellant becomes aware of the suit and attend in court. I shall not buy at any cost the complaint that appellant was Page 8 of 9 served via mobile phone while there is affidavit sworn by officer designated to process summon whom trying to reach appellant twice but appellant had her own personal issue. What I am comfortable with is that appellant had a knowledge of the case at the primary court and the decision to proceed ex- parte was legally made and therefore there is no illegality neither irregularity. I find the appeal lacks merit and I hereby dismiss it with costs. K M. L. KOMBA Judge 18th February, 2025 Page 9 of 9