NANGERA GARIMOSHI VS NIC final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISC. CIVIL APPLICATION NO. 21 OF 2023 (Originating from Civil Suit No. 19 of 2011 of the Resident Magistrate’s Court at Taveta in the Republic of Kenya) IN THE MATTER OF RECIPROCAL ENFORCEMNET OF FOREIGN JUDGMENTS ACT, CAP 8 R.E 2002 IN THE MATTER OF THE JUDGMENT OF THE SENIOR MAGISTRATE’S COURT AT TAVETA IN THE REPUBLIC OF KENYA IN CIVIL SUIT NO. 19 OF 2011 BETWEEN NANGERA GARIMOSHI ……………………………………. APPLICANT VERSUS NATIONAL INSURANCE CORPORATION OF TANZANIA ................................................................................ RESPONDENT RULING 14/02/2024 & 14/03/2024 1 SIMFUKWE, J. The applicant herein Nangera Garimoshi, brought this application praying for exparte and interparties orders as follows: EX-PARTE 1. That the Court may be pleased to allow registration of a decree in Civil Suit No. 19 of 2011 that was delivered by the Resident Magistrate’s Court at Taveta in the Republic of Kenya on the 19th day of July, 2017. 2. That the costs abide by the event. 3. Any other reliefs(s) this Hon. Court deems just, fit, fair and equitable to grant. INTERPARTIES 4. That the Court may be pleased to allow the registration of a decree in Civil Suit No. 19 of 2011 that was delivered by the Resident Magistrate’s Court at Taveta in the Republic of Kenya on the 19th day of July, 2017 5. That the costs abide by the event. 2 6. Any other relief(s) this Hon. Court deems just, fit, fair and equitable to grant. The application was brought under section 4 of the Reciprocal Enforcement of Foreign Judgments Act (Cap 8, Revised Edition, 2019) and Rule 2 of the Reciprocal Enforcement of Foreign Judgments Rules, GN No. 15 of 1936. It was supported by an affidavit sworn by the applicant which was contested by the counter affidavit of the respondent sworn by Mr. Paul G. Shaidi, Director of the Legal Services of the Respondent. The factual background leading to this application is to the effect that, the applicant herein instituted a suit in the Resident Magistrate’s Court of Taveta in the Republic of Kenya vide Civil Case No. 19 of 2011. The applicant alleged that she insured her motor vehicle with registration No. T 465 AJZ with the respondent company. The insured car was involved in a road traffic accident and the applicant was injured. She instituted a suit against the respondent which was eventually decided in her favour on 19th day of July, 2017. The respondent was ordered to pay the applicant the sum of Kshs. 302,000/= plus the costs of the suit. Considering the fact 3 that the respondent is a Tanzanian Corporate body, the applicant made this application for the said judgment to be enforced in Tanzania. Hence, this application. At the hearing of this application, the applicant was represented by Ms. Zuhura Twalib, learned counsel while the respondent was represented by Ms. Melania Lazaro, learned counsel. The application was ordered to be argued by way of written submissions. In support of the application, Ms. Zuhura started her submission by referring Section 4 of the Reciprocal Enforcement of Foreign Judgments Act and Rule 2 of the Reciprocal Enforcement of Foreign Judgments Rules, G.N No. 15 of 1936. She stated that the cited provisions allow the applicant to apply before the High Court of Tanzania for her judgment to be registered. She was of the view that the applicant has met all requirements provided by the law to warrant registration of the judgment in Civil Suit No. 19 of 2011 dated 19th day of July 2017. Elaborating more, the learned counsel for the applicant submitted that the applicant instituted a suit in the court with jurisdiction to entertain the 4 matter (the Resident Magistrate’s Court in Taveta in the Republic of Kenya) vide Civil Case No. 19 of 2011. That, in the said case, the respondent was served with summons to appear in accordance with the law of the respondent’s country of original. Also, summons to appear was issued by substituted services through advertisement in the Daily News newspaper. Notice of those proceedings were served in time to enable the respondent to appear and defend the suit. However, the respondent did not enter appearance. The applicant’s learned counsel informed this court that judgment was entered in favor of the applicant whereby the respondent was ordered to pay the applicant the sum of Kshs. 302,000/= plus costs of the suit at the tune of Kshs. 178, 953.00 and interest of 12% from July, 2017 until payment in full. The learned counsel insisted that the respondent was aware of this claim and orders as seen in the letter dated 5th March, 2018. That, despite being aware, the respondent had not fulfilled the said orders. She believed that the applicant is entitled to enforce the said decree against the respondent a decree debtor whose office is within the Republic of Tanzania. 5 In her conclusion, Ms. Zuhura submitted that the essence of registering foreign judgments is to give foreign judgments the same force and effect as that from the original courts in execution. She stressed that the applicant fulfilled all the requirements of the law for granting this application. Ms Melania on the outset prayed to adopt the counter affidavit to form part of her submission. Countering the applicant’s submission, she contended that the original court had no jurisdiction in the circumstances of the case. She asserted that the test which the court shall use in determining whether the original court was vested with jurisdiction in circumstances of the case is highlighted under section 6(2) of the Reciprocal Enforcement of Foreign Judgments Act (supra) which reads: (2) For the purposes of this section, the courts of the country of the original court shall, subject to the provisions of subsection (3) be deemed to have had jurisdiction- (i) if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the 6 proceedings otherwise than for the purpose of protecting, or obtaining the release of property seized or threatened with seizure, in the proceedings or of the contesting the jurisdiction of that court; (ii) if the judgment debtor was plaintiff or counter-claimed in the proceedings in the original court; (iii) if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court; (iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident, or being a body corporate had its principal place of business, in the country of that court; or (v) if the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court 7 were in respect of a transaction effected through or at that office or place.” Ms Melania asserted that the tests of jurisdiction as provided under sub 2(i)-(v) were not met to confer jurisdiction to the original court. On her second argument, Ms. Melania submitted that the respondent being the judgment debtor and the defendant in the proceedings in the original court, did not receive notice of those proceedings and did not appear notwithstanding that the process may have been dully served on him in accordance with the law of the country of original court. She made reference to section 6(1)(iii) of Reciprocal Enforcement of Foreign Judgments Act (supra). The learned counsel explained that, it is undisputed fact that, the proceedings in the original court went ex parte against the respondent. She averred that all correspondences made as reflected in Annexure GN- 3 collectively, were made after the ex parte judgment had been issued. She said that the respondent received a notification of the matter while the proceedings had been conducted and the judgment was already issued against the respondent. She was of the opinion that under such 8 circumstances, the respondent was not afforded its fundamental right of being heard and defend her right. Furthermore, the learned advocate opined that, the judgment was fraudulently obtained as per section 6 (1) (vi) of Reciprocal Enforcement of Foreign Judgments Act (supra) because the record reveals that, there were two civil cases on the matter. That is Civil Case No. 13 of 2009 whose parties are unknown and Civil Case No.19 of 2011 on the same cause of action between the Applicant and the respondent herein. The counsel for the respondent explained further that in Civil Case No. 29 of 2011 as narrated under paragraph 2 and 3 by the counsel for the applicant, one Stephen Oddiaga that Civil Case No.19 of 2011 was the re- execution of Civil Case No. 13 of 2009. Ms. Melania continued to submit that, it is devastating to point out that the execution of the decree is done by way of instituting a fresh suit against a new party which was not a party to the previous proceedings, or by way of instituting the execution proceedings against the parties. 9 She submitted further that, the discrepancies of the judgment itself suggest that, it was fraudulently obtained. That, the judgment has no parties, no particulars of the case, nor particulars of the court issuing the judgment attached to the proceedings. It was averred further that all the discrepancies suggest that, the judgments were obtained fraudulently. In addition, the learned counsel submitted that the said judgment cannot be protected under section 3 (1) (a) and (b) of the Reciprocal Enforcement of Foreign Judgements Act (supra) due to the fact that it comes from the Resident Magistrate’s Court of Taveta in Kenya which is not the Superior Court of Kenya. Ms. Melania concluded her submission by stating that the application does not fit for registration and the same should be struck out with costs. In rejoinder, the learned advocate for the applicant insisted that the applicant’s desire is to enforce the said judgment in Tanzania. From the foregoing rival submissions my task is to determine whether the applicant’s application has merit. 10 The enforcement of foreign judgments in Tanzania is a procedural matter. The laws which govern registration and enforcement of foreign judgments are; Civil Procedure Code (Cap 33 R.E 2019), the Reciprocal Enforcement of Foreign Judgments Act (supra) and the rules made under that Act. Therefore, a foreign judgment will only be recognized and enforced in Tanzania if the following procedures and statutory requirements are met: First, the judgment must be final and conclusive as per section 3 (2) of the Reciprocal Enforcement of Foreign Judgments Act. Second, the foreign judgment must not be contrary to Tanzanian public policy as per section 6 (1) (v) of the said Act. Third, the foreign Court must have had jurisdiction over the matter. Fourth, the judgment should not be obtained by fraud. Finally, for the foreign judgment to be enforced, it should adhere with the principle of natural justice as it is provided for under section 6 (1) of the Act. In the present matter, the applicant herein sought to enforce the judgment in Civil Suit No. 19 of 2011 which is alleged to have been issued by the Resident Magistrate’s Court of Taveta, in the Republic of Kenya. At page 3 of the applicant’s submission, it was argued that the respondent was ordered to pay the applicant a sum of Kshs 302,000 together with 11 costs of the suit Kshs 178,953.00 and interest of 12% from 19th July 2017 till the payment in full. This argument was contested by the respondent’s counsel who argued that the records reveal that there were two civil cases on the same matter, that is Civil Case No. 13 of 2009 whose parties are unknown and Civil Case No. 19 of 2011 whose parties are the parties herein. The learned counsel for the respondent was of the view that, it seems that Civil Case No. 19 of 2011 was the re-execution of Civil Case No. 13 of 2009. It was insinuated by Ms. Melania that this discrepancy shows that the said judgment was obtained by fraud. In order to ascertain what transpired in the original court, I have thoroughly examined the annexures which were attached to this application vis a vis what the applicant sought to enforce in Tanzania. It appears that the judgment which the applicant is seeking to be registered and enforced by this court does not contain the alleged orders. It is apparent that the judgment which ordered the respondent herein to pay the applicant a sum of Kshs 302,000 together with costs of the suit Kshs 178,953.00 and interest of 12% is nowhere to be seen. I am of the opinion 12 that the foreign judgment which is subject of enforcement and registration must be clear and without ambiguity. The noted inconsistency between what was attached with this application and what the applicant sought to register and enforce in Tanzania cannot be ignored. In addition to the above findings, Rule 3(1)(a) of the Reciprocal Enforcement of Foreign Judgments Rules (supra) requires the applicant who is seeking registration of foreign judgments in Tanzania to exhibit together with his/her affidavit a certified copy of the judgment issued by the original court. As a matter of reference, the provision reads: “3-(1) An application for registration shall be supported by an affidavit of the facts- (a) exhibiting a certified copy of the judgment issued by the original court and authenticated by its seal and a translation of the judgment certified by a notary public or authenticated by affidavit;” Apart from the cited rule, I am of considered opinion that such certified copy of the judgment of the original court must reflect without ambiguity 13 what the applicant is seeking to register. In the instant matter, the applicant attached a photocopy of the certified judgment instead of original version of certified judgment. Thus, the authenticity of the judgment is dubious. Also, there are several orders of different Magistrates which are not certain. For instance, the untitled judgment dated 19/07/2017 was delivered by Hon. G.K. Kimanga – RM; there is another untitled order of Ho. D. K. Matutu – RM dated 24/05/2012 which was entered for the applicant and an order dated 08/02/2012 of Hon. Ndegwa – SRM was granted in favour of the applicant but it is untitled. In short, the proceedings attached to this application are ambiguous. In the upshot, this application has no merit and I hereby dismiss it with costs. It is so ordered. Dated and delivered at Moshi this 14th day of March 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 14/03/2024 14 15