TELESECURITY VS NSSF

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 14352 OF 2024 TELESECURITY COMPANY LIMITED........................................…. APPLICANT VERSUS THE BOARD OF TRUST OF THE NATIONAL SOCIAL SECURITY FUND…………………………………………….RESPONDENT (Arising from the judgment and decree of this Court Dated 23rd June 2023 in Civil Case No. 186 of 2021) RULING 27 and 27th March 2025 KISANYA, J.: This Court is moved to extend the time within which the applicant may file an application to set aside the judgment and decree rendered on 23rd June 2023 in Civil Case No. 186 of 2021. Upon granting the extension, the Court is further requested to make an order setting aside the ex-parte judgment in question. The application is made by way of chamber summons under section 14(1) of the Law of Limitation Act [Cap. 89, R.E. 2019] and Order IX, Rule 9, together with section 9 of the Civil Procedure Code [Cap. 33, R.E. 2019] (the CPC). 1 In support of the application, the applicant relies on an affidavit sworn by Athuman Yateri Athumani, advocate, which set forth the factual basis and grounds for the relief sought. Conversely, a counter- affidavit sworn by Kennedy Gwakisa Kasongwa, a legal officer of the respondent, has been filed to contest the application. From the pleadings, it is undisputed that the applicant was a defendant in Civil Case No. 186 of 2021, filed by the respondent. The judgment appended to the supporting affidavit indicates that the suit was a summary suit under Order XXXV of the CPC. The applicant claims that when the respondent’s counsel appeared before the court on 19th June 2023 and requested summary judgment, they had not yet complied with a court directive requiring them to notify the applicant. Furthermore, the applicant asserts that she was not informed of the date when the summary judgment was delivered on 23rd June 2023. Upon discovering the judgment and decree during the execution stage, the applicant filed this application, stating that the delay was due to sufficient cause, including denial of the right to be heard. As indicated earlier, the respondent disputes the applicant’s claims, stating that the applicant had filed an application for leave to 2 defend the summary suit, which was later dismissed for want of prosecution. The respondent further states that since the applicant did not seek to restore the dismissed application, the assertion that they were denied the right to be heard is unfounded. Considering the above background, in which the suit resulting in the judgment under challenge was a summary suit, when this matter was placed before me for hearing, I found it essential to examine its competence, particularly whether there was an ex-parte judgment warranting setting aside under the provisions cited in the chamber summons. Responding to that issue, Mr. Method Ezekiel Garran, the learned Advocate who appeared for the Applicant, conceded that the application was incompetent. Referring to Order XXXV, Rule 2 of the CPC, he submitted that the Court issued a summary judgment and not an ex- parte judgment. In light of this, he requested to withdraw the application and asked the Court to relieve the Applicant from bearing the costs. 3 In reply, Mr. Kennedy Kasongwa the learned State Attorney representing the Respondent did not object to the withdrawal of the application. He also chose not to pursue the costs for this application. As previously indicated, the reliefs sought by the applicant imply the existence of an ex-parte judgment issued by this Court on 3rd June 2023 in Civil Case No. 186 of 2021. This assertion is reiterated in several paragraphs of the supporting affidavit. Moreover, the fact that the second relief is sought under Order IX, Rule 9 of the CPC reinforces this observation, as the provision empowers the court that issued an ex- parte judgment or decree to set it aside if satisfied that the defendant was prevented by sufficient cause from appearing when the suit was called for hearing. However, the judgment subject to this application was not an ex- parte judgment. This is because the suit leading to the impugned judgment was a summary suit, where the applicant (then the defendant) had no automatic right to participate unless they first obtained leave to appear and defend, in accordance with Order XXXV, Rule 2 of the CPC. Thus, it was only after such leave had been granted that the suit could 4 proceed ex-parte against the applicant in the event of their non- appearance. Although the supporting affidavit does not explicitly state whether leave was granted, Mr. Garran has conceded, and the challenged judgment attached to the affidavit indicates that the applicant’s application for leave to defend was dismissed for want of prosecution. It was at that point that this Court proceeded to enter summary judgment against the applicant. Under these circumstances, I find the present application to be incompetent, as there is no ex-parte judgment that can be set aside, even if an extension of time were to be granted. The correct path for the applicant was to request an extension of time to apply for setting aside the summary judgment under Order XXXV, Rule 8 of the CPC. Furthermore, the criteria for setting aside an ex-parte judgment are separate from those relevant to setting aside a summary judgment. In an application to set aside an ex-parte judgment, applicants must prove good cause for their non-appearance, while in cases of summary judgment, applicants must show exceptional circumstances for their failure to appear and provide a valid defense in 5 the summary suit. This position was stated in Integrated Property Investment (T) Ltd and Another vs. The Company for Habitat and Housing in Africa, Civil Appeal No. 187 of 2015 (unreported), where the Court of Appeal held that: “It is instructive to state further that, unlike in an ex- parte judgment entered in default of the defendant's appearance, a defendant against whom a summary judgment has been entered has to show firstly, that there were exceptional circumstances which prevented him from appearing in court and secondly, that he has a good defence in the suit.” As illustrated in the case cited above, it is evident that the criteria for setting aside an ex-parte judgment differ from those applied in an application to set aside a summary judgment. This distinction renders the application for setting aside the ex-parte incompetent. Furthermore, the settled position, as underlined in Robert Kadaso vs Republic, Criminal Appeal No. 476 of 2023 [2002] TZA 17504 (18th August 2023), is that a court cannot extend time for filing an action that is barred by the law. 6 Regarding the prayer for its withdrawal, it is well-established law in this jurisdiction that an incompetent matter cannot be withdrawn or adjourned, and the proper recourse is to strike it out. For the reasons stated, this application is hereby struck out. The applicant is at liberty to pursue the matter by filing a competent application in line with the law. No order as to costs is made, as the issue of competence, which led to the resolution of the matter, was raised by the Court suo motu, and the respondent did not press for costs. DATED at DAR ES SALAAM this 27th day of March 2025. S.E. KISANYA JUDGE Delivered virtually this 27th day of March 2025, in attendance of Mr. Method Ezekiel Garran, learned Advocate for the Applicant and Mr. Kennedy Kasongwa, learned State Attorney for the Respondent. S.E. KISANYA JUDGE 27/03/2025 7