nyanya ally as administratrix of the estate of ally said mwela vs tabora municipal council 9 others 2023 tzhc 20778 4 september 2023

IN THE HIGH COURT OF THE REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA. LAND CASE NO. 7 OF 2022 NYAN YA ALLY (as administratrix of the estate of Ally Said Mwela) PLAINTIFF VERSUS 1. TABORA MUNICIPAL COUNCIL 2. ATTORNEY GENERAL 3. MAYASSAJUMA 4. MAYASSA JUMA (as administratrix of the late Nassoro Juma Nassoro) 5. SAID MPANDE 6. SADICK RAMADHANI ...DEFENDANTS 7. SHABANI MUSSA 8. MWAJUMA SALUM 9. VODACOM TANZANIA PLC REGISTERED 10. TRUSTEES OF SALVATION AND HEALING MINISTRY FOR ALL NATIONS RULING Date of Last Order: 04/09/2023 Date of Delivery: 04/09/2023 MATUMA, J The Plaintiff herein instituted this suit on the 7th September, 2022 against the Defendants claiming for vacant possession of land located at i Malabi area in Mpera Ward within Tabora, an order for payment of rent from January 2008 to the time of judgment, general damages at the tune of Tshs. 300,000,000/= and costs of the suit. Since the institution of this suit the 5th, 6th, 7th, and 8th Defendants have not been served. The 1st, 2nd, 3rd,4th and 9th Defendants having been served filed their respective defences and each of them raised preliminary objections on various grounds. The POs have not yet been determined and the suit has taken no any step ahead since then because service is incomplete to the rest of the Defendants. On the 7th March, 2023 the predecessor Judge Honourable Justice Amour was curious to the prayer of the Plaintiff to proceed with the hearing of the POs without bothering with the service to such other defendants. He thus posed a question to the Plaintiff which is recorded in the proceedings; "Are the other defendants served?" Mr. Kashindye Lucas learned advocate who represented the Plaintiff in reply to that question submitted that; "The &hf &h, 7th and 8th defendants are not known in terms of their whereabouts" The honourable Judge then ordered the reservice to those defendants. On the 12th April, 2023 one Jihadi Saidi Kaloka identifying himself as Msaidizi wa ofisi sworn affidavits of service to the effect that the 5th and 7th Defendants are nowhere to be seen, the 6th defendant acknowledged service and the 8th defendant is reported dead according to the information he got from one Mayasa Juma perhaps the 3rd defendant. It is upon this historical background I invited the parties to address me on the fate of this suit which has been staging in court without any progress due to ineffective service. I wanted the parties^tcTaddress me whether the 2 requirements of service in accordance to the law governing service were complied with and what should be the way forward. Mr, Kashindye Lucas learned advocate for the Plaintiff submitted that following the order of this court for the reservice they complied by using the court process server one Jihadi Saidi Kaloka whereas the 6th defendant was successfully served, the 8th defendant reported dead while the 5th and 7th defendants were nowhere to be found. He thus prayed for ex-parte hearing against the 5th, 6th, 7th and 10th defendants and a withdrawal of the suit against the 8th defendant who is reported dead. Mr. Gureni Mapande learned State Attorney who was assisted by Theodora Chuwa the learned Solicitor of the first defendant jointly stood for the 1st and 2nd defendants and submitted that service to the 5th up to the 8th defendants cannot be said to have been effective because Jihadi Kaloka isn't a court process server in law but a judicial staff as an Office Assistance and therefore could not swear the affidavit of a process server. Mr. Gureni added that even if such service could have been made by the process server and been ineffective, the Plaintiff ought to have resorted into a step further by other means of service including publication. The learned state attorney concluded that the Plaintiff has failed to effect service and therefore his suit be dismissed. Mr. Imani Mfuru learned advocate for the 9th defendant submitted similar to what the learned State Attorney submitted. He only added that since the Plaintiff defaulted service as required by law, Order V rule 1 (2) of the Civil Procedure Code provides that where the Plaintiff fails to effect service the suit should be struck out. He thus prayed for the suit to be struck out with costs because they have already incurred costs to file the defence and enter appearance on several occasions. . 3 In his rejoinder Mr. Kashindye Lucas learned advocate asked this court to use the overriding objective and allow the Plaintiff to make re-service by way of publication. Having heard the parties on the herein above raised issue by the court and after my perusal of the court records, I find that in no way we can proceed with the suit in the absence of service to the defendants who are allegedly nowhere to be found because even to those parties who are nowhere to be seen the law provides for the mode of service to them including publication by the order of the court as rightly submitted by Mr. Gureni Mapande and Mr. Imani Mfuru learned counsels. We cannot as well proceed with the hearing against the 6th defendant who is purportedly served by the said msaidizi wa ofisi who has not even identified himself as to which "ofisi" he belongs and whether he had powers under the law to effect service. In accordance to the Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, G.N. 363 of 2017, only Court Processes Servers appointed and recruited under the law are eligible for effecting services. When it is not practically possible to procure the court process server for whatever reason, the party bound to effect service may apply to the Deputy Registrar or the Resident Magistrate in charge for an order appointing any public officer to effect such service. That is in accordance to rule 30 and 31 of GN no. 363 of 2017 supra. Court process servers are appointed under rule 5 (2) of G.N No. 363 supra and are subject to disciplinary measures under the G.N and they have their own code of conduct made under the same G.N. ' 4 Service of summons is therefore not a duty to be executed by anybody but by very selected and recruited persons under the G.N supra. It is the duty that should not be taken lightly or for leisure. In the case of Pascal Leonard versus Iddi Kavuruzi, DC Civil Appeal No,9 of2020, this Court at Kigoma held that service of summons is a dignified duty which entails integrity, honesty, competence, quality service and confidentiality. The essence of the law in putting in place Court process servers to effect services was well stated in the case of Pascal Leonard supra to the effect that a party to the suit should not be allowed to make his own private arrangements for effecting service to avoid misleading the Court on the true status of service which might put justice in danger. The Court in rejecting private arrangements for effecting service held at page 6; - "That is very dangerous as I have said herein above as it may mislead the Court and cause the right of the parties to be heard be infringed by mere affidavits sworn by unrecognized persons like what happened in this case. The person to effect service should not be under control of either party to the suit so that he would state the true status of service for the better end ofjustice. To ensure as such, the process server must be only those who are legally recognized as herein above stated, and who are subject to Disciplinary Committee and Code of Conduct for process servers, or who are under special appointment by the order of the Registrar of Magistrate for special cases as stated herein 5 I fully subscribe to the herein above finding and take it as part of the decision in this appeal. If the Plaintiff herein made his private arrangements to procure the said "Msaidizi wa ofisi" to assist him in effecting service and he returned a feedback to her that the service was not successful because one of the defendants is dead, two others are nowhere to be seen and one of them received the summons but did not enter appearance, the next step was for the Plaintiff to find out another summons and use the process server to effect such service. Only the affidavit or affidavits of the process server is wealthy to be considered as a true status of service. It is upon such affidavit or affidavits of a legally recognised agent the court could even issue an appropriate order for the suit to take a step further. Since in this case the said "Msaidizi wa ofisi" was neither a court process server nor a public officer appointed under Rule 31 of G.N. No.363 supra to effect service in lieu of process servers, and since he was privately engaged by the plaintiff, his integrity and freedom to swear the real facts pertaining to the service in question is questionable and cannot be acted upon. It is thus very dangerous to act on his affidavit to the detriment of the defendants who have not been served. The Plaintiff has been reluctant to play her role of effecting service to the defendants and such relaxation has resulted into the delay of this suit which is still having a long way to go to its final disposal. As what should be the way forward, I agree with the learned counsels for the defendants that this suit cannot survive in the court register because the other defendants have not been served. Since the issue of stagnation of the suit was raised by the court itself, I find it better to issue an order that dead though there is no proof to that effect and some others are allegedly nowhere to be seen while the suit is for vacant possession in the meaning that they are in occupation of the suit land, I find that it would be in the interest of justice to struck out this suit and give leave to the Plaintiff to refile after reviewing his case and inquire on whether the defendant who is allegedly dead is really dead or not. If dead to find out her personal legal representative. Further to inquire the addresses of the rest of the defendants who are allegedly nowhere to be seen. Having said all these, I now proceed as hereby do, struck out this suit with leave to refile under the following orders; 1. This suit is hereby struck out with leave to refile 2. If the Plaintiff is still eager to refile this suit then the refiling should be within a period of six months from the date of this ruling. Failure to refile the suit within such prescribed period, leave to refile shall still be alive but the Plaintiff shall be subject to the law of limitation as from the date when the cause of action arose. 3. The issue leading to the struck out of this case being raised by the COURT; Ruling delivered in presence of the Plaintiff in person and her advocate Mr. Kashindye Lucas, in the presence of Gureni Mapande learned 7 State Attorney and Theodora Chuwa (Solicitor for the first Defendant) for the 1st and 2nd Defendants and in the presence of Imani Mfuru learned 8