19980904 TZHC Dar es Salaam

IN TH.£ HIGH COURT OF TANZAi\'IA

AT DAR ES SALAAM MISC. CIV. CAUSE NO .• 148/1997 SAHARA MARKETING CORP •••••••••• APPLICANT Versus J ANB JUTTA. . . • • • • • • • . • • . • • • . • • • Ri:'.:SP OND ENT V M,\TITA,£,. Xhis is an application for enlargement of time in which t0 lodge an appeal against the judgment and decree in Civil Case No. 10 of 1995 of Kisutu RM's Court. The Applicant is repre- sented by Mr. Kapinga,. learned advocate. The Resipondents have secured the services of M.A. Mlanzi and Company, Advocates. Before the matter could .be heard on the merits, Advocates for the Respondents raised a preliminary objection that the applicamion is incompetent in that:- (a) The judgment of the court given on the 2nd day of August, 1996 is properly speaking a default judgment and not an exparte judgment; (b) If, which is denied as aforesaid, the same is an exparte jud5Tn2nt, the same is not appellable and therefore the application for extension of time is devoid of any merit. The hearing of the preliminary objection was by way ~f written submissions. Briefly the facts are as follows:- In Civil Case No. 10 of 1995 the Respondent was the Plaintiff and the Applicant was the Defendant. The Defendant was served by way of substituted service by publication in- Uhuru newspaper . . ' dated 20th July, 1995. The said publication required the Defendant tf'I appear in court an 2nd August, 1996 when the matter would come up

for mention. ·;fhen the matter came up for mention on 2nd August, 1996 t~e D~fendant did not appear anq had not filed a \vri tten statement of defence. The Respondent's (Plaintiffs) advocate applied for judgment-as follows:- ,, Mr. Mlanzi- pray for judgment because Defendant has -not entered appearance and no defence has been-made. 9RD:fu1,:_ - Exparte judgment entered on the basis of the claim as contained in.and prayed in the plaint. • •.. /2 = 2 = The learn:ad advocate for the Respondent argued that an exparte judgment on the ground of failure to make an appearance and defend thl? suit is not appellable. Its ef.fc~ct is that of a default. judgment and ·the only available way. of- challenging the same is by way of a:r. applic2tion to set aside the .same under order 9 rule 13 and restore thG c-,uit to be determined on med. t •. ~n support of his contention he quoted ;,JJ\TIONAL BAN.K OF COMMERC:f~ V. GRACE .SEJGELA (1982) TLR 248 Mr. Kapinga, learned advocate for the Applicant argued that the order made in Civil Case No. 10 of 1995 is appellable because it reads 11 Exparte Jua.gment entered on the basis of the claim as contained and prayed for in the plaintY. He asserted that the said order does not talk about default judgment but exparte j .1dgment. The 1 learned advocate concedes that the definitior,. of exparte . judgment 11 according to the concise Law Dictionary by P .G

Osborn i.e in the absence of the other party. Mr. Kapinga argued that this is an exparte decree appellable by virtue of section 70 sub-section (2) oi· the Civil Procedure Code 1966 o Mr. Ka.1)inga distinguished HATIONAL BANK OF COMM1~RCL V. GRACE S1?T:TGELJ\ (198@) 'I'LR 248 on the basis that in that case there was no decree, and that the intended purpose of the ' appeal is to challenge the decree. He prayed that for these reasons the preliminary objection be dismissed with costt5 and the a:ppl..1..~ation proceed to hearing. In order to get the answer as to whether tne order made by the Resident Magistrate in Civil Case No. 10 or 1995 is appellable or not a close examination of the relevant provi- sions of the Civil Procedure Code 1966 is caJ.led for. 'rhe p:roceclure to be followed_ where the pla,intiff appea,rs · and the defendant does not appear on the appointed day as happened in the instant case is spelled out in order 9 ru.le 6 of the Civil Procedure Code. Rule 6 provides; inter c.3-lia. 11 6 (1) Where the P1aintiff appears and the defendant does not appear when the suit is called_ for hearing then- - - (a) (1) If the suit is before the High Court and it is proved that the summons was duly served ·the court may proceed exparte; = 3 = (ii) If the suit is before any court other than the High Court. (A) iVhere the srnmnons issued "·,:as a summons to file defence and it

is proved that the summons was ~uly served 1 the court may proceed ex pa.rte~ (B) The summons issued 'ilas a summons to appear 7 and it is p:roved that the summons 'das duly- served, the court may enter ;judgment for the plaintiff 11 • The publicati.on in the Uhuru news paper dated 20th July, 1995 was as follows!- K~OTiA Si-J.AUHINI MAf-IAKAMA YA I-IAKD11.l MKAZI KLSU1D Tl_AF li:S SALAAiTVI DAA;.,vA NO. 10/1995. - KUI'I'..ii-\ Sl-lAURINI f1FUNGUAJI vvA MADAI ~ J_4NE JUr:t.rA })rlIDI YA MLALAt-'iIKI '!IA BRANCH .MANAGER SAHARA MARKETING GOR?ORATION. Kwa Branch Manager 7 . Sahara Marketing Corpor.gtion popote alipo Tanzania. Unaombwa ufike Mahnkamarhi hap a si.l<u ya Alhamisi tarehe 26.7.1995 bila yn kukosa shauri hili litakapo t}ajwa ter....... Dar es Sale.am kwa mlrnno wangu na muhuri wa Mahakama hii leo tare he -17, Julai j 1995 •. Ifakimu Mkaz i Dar es Salaam~ It. a})pE:?ars that this was an equivalJ.ent to a summons to appear. Hence· the learned Resident Magistrate appears to have entered judgment under paragraph ( a) (ii) (B) of sub-rule (1) of ru.le 6 of order 9; al though it 1,vas not proper to do so because the suit was coming up fo'r mention.and not for hearing. Rule 13 of Order 9 makes p·revision for ~.,ettin:g aside· decrees and judgments entered ex parte against a defend.ant. It provj_des: - 'i- a 13 - (l) In any case i1'.) which a decree if passed ex ...parte

against a def2nda:nt, he may apply to th~ court by which the decree was passed for an order to set it aside, and ii' he satisfies the court that the sumr::1ons was not duly served, or that· he was prevented by any sufficient cause fro:T1 appearing '-':hen the suit :.ms .. , 4 called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or ntherwise as it thinks fit, and shall appoint a d 9y for proceeding with the suit8 Provided that where the decree is of such a nature that. it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. ( 2) lhefe judgment has been entered by a cour_t punsuant to paragraph (a) (i) (B) of sub-rule (1) of rule 6 of this. order or sub-rule (2) o{ rule 14 of order 8· it shall be lawful for' the· court, upon aj.plicatirn being made by an aggrieved party within . . six weeks from the date of the judgment, to set aside or vary such judgment upon such terms as may be considered by the court to be just; Provided that where a decree has been issued prior to such application being made the provisions of the Indian Limitation Act, 1908 as applied to Ta:0:ganyika {N.ow·Law of Limitation Act, 191'1) shall apply". In NATIONAL BANK OF co~~1ERCE v. GRACE SENGELA (~982) ELR 24S? where the ~agistrate dismissed the suit on

grounds of default of appearance on the date fixed for mention, Bahati, J proc,eeded on the footing that it was proper to·apply for r:storation of the suit and not lodging an appeal. I am of the opinion that the proper action in the instant case would have been to apply for restoration of suit under rule 13 of order 9 of the Civil Procedure Code. In terms of paragraph ( d) of Order 40 of the Civil P roce- dure C/1\de an order under rule 13 of order 9 rejecting an applica- tion for an order to set aside the dismissal of a suit is appe- llable. I am of the ap1n1on, therefore, that before appealling to this court the Applicant should first apply to the court that made the decision in d~fault of appearance, to set aside that decision so that the matter should be decide on the merits. I t •.• e ./5 = 5 = For •the above ~easons aµ·_ application for enlargement of time in which to lodge an appeai to .this court against the judgment and decree in Civil Case No. 10 of 1995 of the Kisutu , I R..11•'1' s Court is premature. The preliminary objection is upheld ' with costs. ( Sgd) f•LH TA,

JUICE Delivered in Chambers in the presence of Mr. Kapinga, learned .r Advocate, -this 4th September, 1998 • ... ( Sgd) M,HTA , JUDGE . Cl~R'ITFIED TRUE COPY 02 THE ORIGINAL.