Ngoda vs Ubwa (Civil Appeal 52 of 1999) [2000] TZHC 11 (20 September 2000)

IN THEHIGHCOURT OF TANZANIA (DAR liS SALAM-1 DISTRICTREGISTRY) AT DAR liS SALAAM -..a...... ..... CIVIlJ APPEAL NO. 52 OF 1999 ( Originating from the decision of Kisutu RMCiv. Case No. ?75/96 ) ]!I:EMA.t J ", This petition of appeal has been filed by Vateo Ngoga after being aggrieved by the ruling of the Resident Hagistrate's Court at Kisutu in RM Civil Case No. 375/96. The Resident Magistrate Court on 27th day of March, 1997 entered an ex parte judgment with costs in favour of the respondent and attempts to apply for extension of time to set aside the ex parte judgment failed hence this petition of appeal. e:pror of law and fact on the part of t he learned Resident Magistrate for failing to take into account that appellant had not been served not-- withstanding the substituted service by way of publication in the Uhuru Newspaper; error in law in failing to consider appellant's right to be heard; error in law and fact on the part of he Resi.dent Yistrate refusing extension of time to apply to set aside the ex parte juent. Professor MgongoFimbo advocated for the appellant lhile respondent Ubwa~~iyu Ja appeared in person on 4/7/2000 for the first time after this court had barred the representation of Rosson Jum,:). ~ who had all along been passing off as lJbwa Msiyu . In his UBual lucid submissions Professor MgongoFimbo learned Advocate argues th!lt the appellant did not Imow the contents of the judgment until 20/7/97 and upon such information, !lppelbnt filed hip appliction on "30/7/97. It is Professor Finlbo's iriew tht such is both reasonable ond suffient cause • to W3rI'ont the grant of extension of time. In addition Prof. Fimbo 'submi ts ~that even the substituted service in the Uhuru Newspaper wos known to the

appellant after judgment had been delivered. The summonswas published on 28/3/97 but appellant saw the cIIIIPY of the publication on 2/4/97 almost five 'linE days after judgment entered on 27/3/2000. To this end Professor Fimbo argues that the appellant was entitled to the protection of Order IX Rule 13 of the Civil Procedure Code. On the question of barring Hassan Juma Lm'1afrom appearing as he was passing off as UbwaMsiyu Ubwa and that he was the same person who appeared in the lower court Passing off as such, Professor MgongoFimbo submits that the exparte judgment was therefore obtained by fraud and in la"l such judgment ought to be vacated and nullified.~The case of SAID SJ\LIMBAKRESSA VB VIP :ENGmEERTIJG 1996 TLT{ 309 was cited in suppo:rt and the court was invited .to invoke Order XXXIX Rule 2 in sustaining the submission on fraud thdagh outside the memorandumof appeal. It is commonground that the appellant upon discovery 0 f the exparte judgment had diligently and immediately taken pteps though unsuccessfully to set aside the same. Although the trial court had observed that appellant was not interested irt prosecuting the case as he failed to apPear on the day of hearing, my elose examination of the record of the Lower Court has .revealed that the appellant did not know the date of hearing for lack of service. At any rate the appellant took immediate and necesr,ary steps to apply to set aside the exparte judgment as there was sufficient cause to do so. As regards the question that the exparte judgment was obtaAned through fraud follo'tling the appearance of one Hassan Jume Lm· 1 apassing off as Ub'vJa Msiyu Ubwa I adopt the decision of the Court of Appeal in the case of SAm SALlMBAKRISSA 1996 Till 309 and set aside the exparte judgment dated Z1/3/97 obtained through fraud. In the fine.l analysis, I allow the petition of appeal with costs and set aside the exparte judgment dated 27/3/1997. I however decline to m9ke any further order in terms of Order IX Rule 1'3 of the Civil Procedure Code 1966. S.Thema JULGE Delivered before the appellant and respondent in C:hambeIS on 2O/9/2DOO. Right of appeal is open to the parties_ SoIhema JUDGE 20/9/2000