20190821 TZHC Dar es Salaam 2

IN •THE. UNITED ·REPUBLIC OF TANZANIA THE HIGH COURT OF TANZANIA .. · (DAR'ES·SALA.AM DISTRICT REGISTRY) . - . . --~~;~·:_.-: ·_:.:· :· . . . . . AT DAR ES-SALAAM • MISC. •-, CIVIL ' APPLICATION. ·.•.·,,,., r:.- • \· NO. - 672 OF • 2017 .. ., . (Arising from Civil Case No. 134 of 2014) . . . . . YESIGE MULTIPURPOS·E CO. LTD-~------------------------- . . APPLICANT : -VERSUS APRONIUS MUTALEMWA MUZO t/a LIRY INVESTMENT~ GENERALSOPPLl,ERS -~~~--~- RES.PONDENT _RULING MUTUNGI, J. The applicant dully represented by Mr. Zake, learned Counsel , has under Order IX R01e('.13 :'(f}. Of the· Civil Procedure ·c·od~:-··:" ·_ ·. ·.. ·., ' .... [Cap. 33 R.E 2002] •through .this a.pplication sought for Jhe · · following orders: - fa) Th8 court llldybJ Plecised to 9ral1t the order~Sefo~g:: ·•· aside an ~xp,arte:judgment.dated26 th February, 2016. ·· · in Civil Case No~ -134 of 2014. . l (b) Costs of this application be costs in the cause. (c) Any other relief(s) that this honourable court may deem fit and necessary to be granted. The application is dully supported by an Affidavit deponed by one Deogratias Kahwa one of the applicant's Directors. The learned counsel's submission together with the averment in the Affidavit stated, the applicant is a defendant and Judgment Debtor in Civil Case No .. 134 of 2014 in which a judgment was entered Ex-parte against her on 26/02/2016 delivered by Hon. Bongole, J. The counsel further expounded the applicant's Directors are the defendants in Land Case · No. 26 of 2014 which was filed on 5th Mayi 2014 two months before Civil Case No. 134/2014. Surprisingly according to the applicant's counsel, the respondent is the second plaintiff therein. On 27/04/2016 the applicant's Director learnt from his Advocate that the respondent had served him with a document to be relied upon which in fact was the judgment in Civil Case No. 134 of 2014. This was shocking news since the applicant's Director was not aware of the existence of 2 r th_e same. This - necessitate.d.·the·perusal . .. of.CivH . C-ase. . No;.· . : l 3'4-.:- ... ·. · ~ . . . , ' .... ' of 2014 and it was fol.ind the same :wa·s fi_led· on 1st July;· ~Ol4 :· . · • • • :>. •. :' •, • •·:• •' " and served to the _applicant by_ publicatio~ while_ Civil Case No. 36 of 2014 was filed . .on 5th May, 2014 and served directly . . . ; . ,· ', ,•'-. ,., .. - to the_·-· a·pplica.nt's. Dire~t6rs .. The, learned· counsel. further:> elabordted the s~bje•ct 'matter in bot·h'cases·is th8 same and · · . ' related to the landed property oh Plot No. 1196 Block 11B" .- Kinyerezi,:·· Halo .. ···oar--_.-· es-·:,Salaam . arising· .from - - 'the· .l6cfo <:. _..·,\: ,_ : . ' Agreement .. . . . . bet.ween ·. . . ., ·the;scfme . parties. Despit·e . . -·. the fact tha"t. . . ., . ·:- ·. . . . ' ·, the respondent was qware the Directors are living in the said landed property_. in. issuE?,, sti_ll prayed for .services -.. by,-~ . • . : - '. • '. • •r ..•· ~ • . ._ • • ... ." • . .,. • • • . .• ~ ' •' . 1.-· •- • ;' - • .'. • • •• • • ·: ·: publicdtion. without . exh.aUsting .. - other means and assignin.g .· .. ·: . ( . any sufficient rea~,ons. In suppott there.of, the counsel cit~d the case of KULWA DAUDlV.· REBECCA STEPHEN [1985] TLR ll 6. ;·. :.:_ :... . .· . The learned counsel. ql!arried the means of proof of servic:·e·. .. - .. -· . . that ·was done. 1t.·"wa's -the process -server· who_ notified the- - .· . ,'.' _· . _-· : . . . -. .: .'.·':··· court that he called the applicant's Director by phone and .. ·: refused service he-nee the.respondent. prayed fOr substitl'.Jted·-· service. There::is nowhere in the record that, the court had - ordered "service by phone" as was don~ by thef process server. It, WO~ upon. the respondent to· move the COlJrt ·vVitn.· >: .. sufficient proof .. that .the applicant . .. . . '3 . .. vyas - -avoiding ' servi'ce. '. ;as . . ' . . . .- . envis.aged by Order--v ·_·.Rule 2·0 _.·( l) . of the Civil Procecfure· Code, .Cap. 33 R.E 2002. The counsel further lamented -that if · . .. is puzzling . . ... by . 02/09/2014-Jhe .. '.. .. ' . two cas~s we_re proce.eqi_r:ig::.in . . . . ., -. (::' ~- : ·.; <:- .- ·: ·:·:~ .. 7 . . . . . . ' . ... . . .' . . . . . . , ' •· ' : ... court ·but the respondent . . . ·coUld not. serve the DirecJors·· fn~ . . . ' '·· . -· .(. . court . . In conc;lusjon .the learned·,<::pun-sel ,submitteo, for ony,stret¢.h • • ., • • ....... • • '. • ••• ·- . • •• , •• , t · •• of imagination-the· . a·pplk:.a_nt ·. could not. dreom_ a case against· - . . . . . . ' . her or go around the court's notic:e boards . . to ~- find .. if there was . . . . . . a ca·se against her or to .. the least . scroll through . . : .. the. newspapers to· see if there is a· suit against her. • •• # • • • H·ad the • • ,. respondent. served; th~- ···applicant with notice· for judgmeht, ... they would have taken the necessarysteps'lo be··heard. The :. . counsel. prayed lh·e; application. is. meritorious and .grdt:ff~:icl: .":,·: t,_< accordingly witt") qosts·:_ .: · ·. · · .,,, ... ·-· .· .- ... On the other side ofthe coin, Mr. Hashiru LUg:wizci advocating - :_ 0 ~;~• ,,••! ~t h• • •, • •• ,..::• :,:,,..:-,..• •"'• ... : 0 •••,• ~•:<• for the respohdenf .. . did adopt the . averment-:in their counter...:.- . · ~ ~ ~ :_ :: Affidavit and submitted that the .fact that the applica6t's Director (deponent) was surprised by the judgme·nt is false . . . The respond~ntdid tqke. pains :to serve th~·:deponent,w:ith · ·::/::.>::;: . ' • • . ' •··•. . • . . .• . . •. ; _! · · ; • ., ,, ' • summons but . he refused ·ond instead directed the process _ . . . ,. ', . .- ' ·,-· server to serve summons . ,. through . his lawyers .. . (Rweyongeza . ~ . . . . -·..... ,.: . ,., and Advocate Company) but these too refused to accept the summons. In view of what transpired the· Advocate · argued the applicant was well aware of the proceedings but for some unknown reasons the applicant decided not to appear (it's · Director). The Advocate' s counsel. submitted, contrary to . what the applicant's counsel submitted that, Order V Rule 20 rests a discretion upon the court to order for substituted service in case ordinary service but this cannot be done under the circumstances. What happened is that the process server informed the court that he could not serve in the ordinary way. In that regard the Judge (Hon. Bongole, J) exercised rightly and judiciously his discretion under the said order. In view thereof the court cannot set aside its own orders. Considering the foregoing.·· the case cited, Kulwa Daudi (Supra) is distinguishable from the matter at hand. In view thereof, the respondent's counsel concluded that, the applicant hds failed . · to convince the court as to why the Ex-parte Judgment should. be set aside. 5 The . -issue ... ·is -·. ·,·~hether -·. ·the·'. applfcant. ·has· · swfficie'rifly.··• !' ":' .· demonstrated . wt7y. th.e., court _sh,ould.'set-asid-e the Ex"'"porte:: • ~ • ~ ." ' • .' • '•• • • .. • ••,•. • ~ .' • • • e : • • • • • : • ~ • • • • • • • • judgment delivered on 26/02/2016. ·The court has. captured ' from the applicant's Advocate, th.at the sole. reasori is that, ...•.. :.· • < • • ' -- • • • ••• • • • • • • • • ·- • • '• ",7. _; . • . : . ·:: .- ' . '. ./ : . ~. ' : ' the applica-nt w.as not aware 9f the. case (Civil Case No. · 134/201-4}. . i-n - oth:er . Wdrds, .the . ~-pplicant . was n-~-v~r summoned to ottend tcf this ·case. He has buttressed. this .• . . point to the.:extenf th6t,-~fhe<b11eges substituted se'rvice hocLd-( :., lot to. be desired .. lJ.:Watissued·_ by-the court .contrary to -the . . laid down requirements of law, sp·ecifically citing Order V Rule 20 (1.}-q(·theiC:Jvil ....,.. .. . ... Pr:ocedlJre;code ·• .. • . (supra}. It was:fh$,i-' . .. ,. . . -- . ·: ' . - . . Advocate.' s ·contention thqt the process .server was· first· to serve . the applicant - by·: th.e norm,91 . s'um~ons and ~ot otherwise. The law has· laid down procedure of how.Jhe. : . a courfcan summon p'arly-~ ·:O.rd'e'r V rui~ _1 is· very loud thd'{ :_~ :;· .... :·-: ·.. ·a . -, _ ... , . "When a suit has beeri dully instituted, a sumrnons may be issued to ·the defendant· at 'the time when .' . the svitis assignedfo 'c:i specific Judge or Magistrate .· param·ount to· .Rule ·3· -of Order IV~" It is not that the applicant wos not summoned but the applicant is · chall·e~ging ..the mode Of service· that. '\vcis~:,,· . .6 ... ·-· ' ...-..1·_-,_.-· :-·· preferred to by the court. The court has painstakingly gone through the Ex-parte Judgment and found at page 2 it is written that: - "The defendant did not file a Written Statement of Defence despite being summoned through substituted service via Mwananchi Newspaper dated O1I 12/2014. As a result, on 12/03/2015, this court granted the plaintiff's prayer to prove the case Ex-parte". As rightly submitted by the respondent's counsel, by this court going ahead and challenging the way this very court had proceeded to summon the applicant will be going too far. In actual fact will be usurping powers that it does not have · trying to see if the procedure was right or wrong. The trial Judge had in his own wisdom ruled in the circumstances facing him that the proper way to go is to issue a substituted summons through the Mwananchi Newspaper. This cannot be challenged by this court, but a superior court. Having said and found as above, the court should not be detained by indulging into a long drawn argument on the issue. The court · 7 ·.· -: ..: .. -· . proceeds to dismiss· the -application for _lack of merits with · _.... J costs. ,••• •. •. ••I. . . . Mbagwa for the applicant and Jn absence of the respondent. __ ._ • • • • • • 0 •' • • ~ • • ; • c• ' •~ • •, -- • : • • • dully notified: .· 8