IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 36 OF 2003 JUDGMENT

Transcription

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 36 OF 2003 (From the Ruling of The Court of the Resident Magistrate at Kisutu in Civil Case No.78 of 1997 Mgetta, ISSA. H. NANGUPECHI. SRM) APPELLANT VERSUS DOROTEA IGNASS RESPONDENT JUDGMENT A.Shangwa,J. This appeal is against the ruling of the Court of the Resident Magistrate at Kisutu in RM Civil Case No. 78 of 1997 in which the appellant's application for an order of extension of time to file an application to set aside the exparte judgment and decree passed against him on 14/10/1997 by A.A. Nchimbi, RM, and in which the appellant's application for an order to set aside the said exparte judgment and decree was dismissed by Mgetta, SRM on 29/1/2003.

2 The appellant's main complaint against the ruling of the Court of the Resident Magistrate is at item 3 of his memorandum of appeal where he states that the learned Senior Resident Magistrate erred in holding that he was duly served and sufficiently aware of the existence of RM Civil Case No. 78 of 1997 prior to the 14 th day of October,1997 when the exparte judgment and decree were entered against him. Both parties to this appeal filed written submissions in respect of this appeal as ordered by my predecessor Musa, J on 25/11/2004. In brief, the appellant's counsel M/S Jamhuri & Co; Advocates Challenged the ruling of the Senior Resident Magistrate saying that as the said Magistrate had no original

3 3 case file before him he could not know for sure that there was an affidavit sworn or affirmed by the court process server to show that the appellant was served with the summons to appear on the date fixed for hearing of the suit but refused to sign it. The respondent's counsel Mr. Koga George Abel supported the dismissal of the appellant's application by the Senior Resident Magistrate. He said that before dismissing it, the said Magistrate was satisfied that the appellant was duly served with the Court's summons to appear but he refused to sign it. Furthermore, he said that the Senior Resident Magistrate dismissed the appellant's application acting on the belief that his predecessor A.A. Nchimbi, RM could not have entered exparte judgment in favour of the respondent/ plaintiff without proof that the procedures involved in effecting the summons had been complied with.

4 4 The issue to be determined in this appeal is whether or not Mgetta, SRM was justified in dismissing the appellant's application for extension of time to file an application for setting aside the exparte judgment and decree and in dismissing his application to set aside the exparte judgment and decree. The trial Court's record shows that the exparte judgment and decree in RM Civil Case No.78 of 1997 was entered in favour of the respondent on 14/10/1997 by A.A. Nchimbi, RM. The application for extension of time to set aside the said judgment and decree was made by the appellant on 26/9/2002 which is about five years from the date when the said judgment and decree was issued. The reason for the delay in applying for extension of time to do so is contained at paragraphs 2,5 and 7 of the

5 5 appellant's affidavit in support of his application before the trial court wherein he states that he became aware of the trial court's exparte judgment and decree on 19/9/2002 when he was served with a prohibitory order issued by the Court to Mamba Auction Mart for prohibiting and restraining him from transferring or charging his two houses situated on unsurveyed plot at Tandika area, Oar es Salaam. In other words, he is saying that judgment and decree were entered against him on 14/10/1997 without his knowledge as he had not been served with the Court's summons requiring him to appear in Court on that date. The trial Court's record also shows that the original case file in which the exparte judgment and decree was entered in favour of the respondent got lost together with all documents which were contained therein including copies of the

6 6 summonses and affidavits. A duplicate file was opened in its place. In his ruling Mgetta, SRM stated that the appellant's argument that he was not served with the summons to appear has no merit. He believed that his predecessor A.A. Nchimbi, RM could not have entered exparte judgment and decree against him without proof that he had been served with the summons to appear. He concluded by holding that the appellant was aware of the existence of the suit and the exparte judgment and decree which was passed against him on 14/10/1997 and that therefore he has no sufficient reason to convince the Court to grant him an extension of time within which to file an application to set aside the exparte judgment and decree and that in actual fact his application is time barred as per the Law of Limitation Act.

7 7 Personally, I think that the appellant was not aware of the exparte judgment and decree which was entered against him by A.A. Nchimbi in R.M.CiviiCase No. 78 of Had it been that he was so aware he would not have stayed for a long period of about five years without making an application to set it aside. I believe that he got aware of the exparte judgment and decree on 19/9/2002 when Mamba Auction Mart served him with a Court's order prohibiting him from selling his two houses at Tandika. I believe so because it hardly took him seven days after becoming aware of the exparte judgment and decree to file an application for extension of time within which to apply for setting it aside. He was aware of it on 19/9/2002 and he filed his application for extension of time on 26/9/2002.

8 8 Also, I do not believe that the appellant was served with the summons to appear on 14/10/1997 and refused to sign it. I do not as well believe so because there is no evidence to prove that the Court process server swore an affidavit to show that he served the appellant with the summons to appear on 14/10/1997 and refused to sign the same. Such evidence was not before Mgetta, SRM who held a different view from mine. It appears that in refusing to grant the appellant's application, Mgetta, SRM acted on a simple belief that his predecessor A.A. Nchimbi could not have entered an exparte judgment against the appellant without proof that the summons had been served on him. With respect, I think Mgetta, SRM was wrong in doing so. As the original case file was lost in which all proceedings

9 9 were recorded and in which copies of the summons and other documents were filed from the time when the case was filed in Court by the respondent until when the exparte judgment was entered against the appellant, it cannot just be believed that when A.A. Nchimbi, RM entered the exparte judgment and decree in favour of the respondent, he acted on proof that the appellant was served with the summons to appear and refused to sign it. For these reasons, I quash the lower Court's decision given by Mgetta, SRMon 29/1/2003 in R.M. Civil Case No. 78 of I set aside all orders which were made therein including the order of execution of the decree based on the exparte judgment entered against the appellant. The circumstances of this case are such that it is not possible to order for a fresh hearing of the appellant's

10 application as the original case file cannot be found. Therefore, I order that the Court of the Resident Magistrate at parties by giving each of them a fair opportunity to be heard. In the final analysis, I allow this appeal but I order that each party should bear its own costs. ~, A.Shangwa,J. 24/5/2006. Delivered in open Court this 24 th day of May, ~ A. Shangwa, 24/5/2006.