Matid Ngoda vs Ubwa Msiyu Ubwa (Civil Appeal 52 of 1999) [2000] TZHC 23 (19 September 2000)

IN THE HIGH COURT OF TANZANIA (DAR IB SALAAM DISTRICT REGISTRY ) AT DAR E3 SALAAM CIVIL APPEAL NO. 52 OF 1999 ( Originating from the decision of Kisutu RM Civ. Case No. 375/96 ) MATID NGODA ................. . Versus UBWA MSIYU UBWA . ........ . .......... J U D G_ M E N T IHEMA, J . This petition of appeal has been filed by Mateo Ngoga after being aggrieved by the ruling of the Resident Magistrate's Court at Kisutu in RM Civil Case No. 375/96. I f t e Resident Magistrate Court on 2?th day of March, 1997 entered an ex parte judgment with costs in favour of the respondent and attempts to apply for extension of tdjne to set aside the ex parte judgment failed hence this petition of appeal. The petition of appeal filed contains following grounds: (i) e»ror of law and fact on the part of the 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; (ii) error in law in failing to consider appellant's right to be heard; (iii) error in law and fact on the part of t i e Resident Magistrate refusing extension of time to apply to set aside the ex parte judgment. Professor Mgongo Fimbo advocated for the appellant while respondent Ubwa Msiyu Ubwa appeared in person on 4/7/2000 for the first time after this court had barred the representation of Hass an Juma who had all along been passing off as Ubwa Msiyu Ubwa'. In his usual lucid submissions Professor Mgongo Fimbo learned Advocate argues that the appellant did not know the contents of the judgment until 20/7/97 and upon such information, appellant filed hir application on 30/7/97* It is Professor Fimbo's view that such is both reasonable and sufficient cause to warrant the grant of extension of time. In addition Prof. Fimbo submits that even the substituted service in the Uhuru Newspaper was known to the APPELLANT RESPONDENT

2 appellant after judgment had been delivered. The summons was published on 28 / 3/97 but appellant saw the c*py of the publication on 2/V97 almost five ynp days after judgment entered on 27/3/2000. To this end Professor Fimbo argues that the appellant was entitled to the protection of Order DC Rule 13 of the Civil Procedure Code, On the question of barring Hassan Juma Luwa from appearing as he was passing off as TJbwa Msiyu Ubwa and that he was the same person who appeared in the lower court passing off as such, Professor Mgongo Fimbo submits that the exparte judgment was therefore obtained by fraud and in l a v ; such judgment ought to be vacated and nullified.*The case of SAID SALIM BAKKESSA VS VliJ ENGINEERING 1996 T I P . 309 was cited in support and the court was invited .to invoke Order XXXIX Rule 2 in sustaining the submission on fraud thcttgh outside the memorandum of appeal. It is common ground that the appellant upon discovery of the exparte judgment had diligently and immediately taken steps though unsuccessfully to set aside the same. Although the trial court had observed that appellant was not interested in 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 necessary 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 obtained through fraud following the appearance of one Hassan Juma Luv>a passing off as TJbwa Msiyu Ubwa I adopt the decision of the Court of Appeal in the case of SAID SALIM BAKRE3SA 1996 TLR 309 and set aside the exparte judgment dated 27/3/97 obtained through fraud. In the final analysis, I allow the petition of appeal with costs and set aside the exparte judgment dated 27/3/1997, I however decline to mske any further order in terms of Order IX Rule 13 of the Civil Procedure Code 1966 , S.Ihema JUDGE 19 / 9/2000 COURT: Delivered before the appellant and respondent in (ihambeis on 20 / 9 / 2000 , Right of appeal is open to the parties, S.Ihema JUDGE 20 / 9/2000