The Unit Manager, Olam (T) Limited vs Semi Silanga (HC Civil Appeal No. 5 of 1999) [1999] TZHC 264 (4 May 1999)

\ IN THE HIGH COJRT OF TANZANIA AT" TABORA (HC) CIVIL APPEAL NOo 5 OF 1999 (Original Bariadi District Cot:.rt C:i.vil Case No. 2 of 1998) • • THE UNIT MANAGER, OLAM (:r') LIMITED (BARIADI WEST UNIT) •• •• •• ., 0 OCI •• &o APPELLANT • V E 1 R ~ u s • I • SEMI SIL.ANGA o.a 00 •• C•: ~·' 0<1 t'O •• RESPONDENT

JUDGMENT/ORDER ------- MASANCHE 1 J.: :..., Th:i;.s is an applition td' set aside an exparte judgment givem at the Bariadi District Court before ha SoDcMot The applicant, The Unit Manager Olanl_,·(T) Limited were sued by the r;sponder..t Seni Silanga for ~~l'tpf oontr!ct• .. II, breach. t I The respondent was deanding some Shs.10 million for the i· !, II He had also, among othef tngs, asked the Court to compel the • ,,,,_. applicant to release a copy ., I of the .contract to him.· I think the applicant • of the v had denied him a copy contr9ct after they had signed. I The case oame before th~ sa).d District Magistrate on 10/9/98. After several adjourl:.-::::;:1ts-; cams. th!:' •:!,:,-l;e when this problem started. It was 4 , . ' ' d"n 24/ll/98~ Mr., _Ma.huma learned advocate who had then appeared for the • plaintiff/respondent stood up and addressed the Court in the following: I j "" "The defendant is not serious" wit,h1thls case. In the first instqnne he became l~te in filling the WoSoD• but just on mercy the ,... Court allowed him to file it, whlhcwas on --: · ... , J...:, -.: , • 2/10/98. ,From 2/lC/98 thG suit wa~ f4..xed .. ...; . ~~: ' • for h~ on 22/0/98 and the defendant r,;;c.,. ru continued to be absent up to date without . . notice to the ,Co1.r-t., T.n that r:egiird we the

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( HC) .Ci v .,Aru>e5/99 • . 2 pray the order which was given ab-initio that the plaintiff has to prove the suit on affidavit, then it should take place. The plaintiff should be allowed to file. the affiwit and the case be deeided on the strength of that affidavit. We therefore pray that the suit be fixed for exparte judgment. That ts all." The ease was fixed for ex parte judgment (:'not ex parte proofJ on 3/J2/98: What is surprising, however, is that on this day of 3/J2/98, Mro ¥.iahuma, learned advocate, never appeared. The plaintiff, present respondent, appeared. The defendants, the present applicahts,never appearedo ~ that day, the Mugistrate framed issu• And, after framing the issues he wrote a judgment and read it to the plaintiff/respondent on that same day of 3/12/98. He entered judgment for the plaintiff as prayed. I need not go further to show, how ~ous the learned District Magistrate was to get the plaintiff have his Shs.10, million. ) point the record shows an absolute biaso Up to that The applicants have four grounds on which they feel this Court ' should set aside the ex parte judgment given on 3/J2/98. The grounds are, and I quote them in full: 0

1. That the trial Magis_trate ~rored both in law and faot.in Computing the period of Limitat1on when it begins to run in filing application to set aside an ex-parte judgment.
2. That the trial Magistrate ~rored in Law in dismissing the applicant• s two applications one for setting aside the ex-parte judgment, and the second ohe, for stay of execution,

3 by failing to afford an opportunity to the appellant to be heardo 3. Furthep that, the learned trial Magistrate 4. e.ed. at law for failure to consi.der that the Law of Limitation considers enlargement of time for the purpose of proper administration of justice. i . Furthep that, by reason advanced herein above, the trial Magistrate manifestly abused his power and this arrived at a decision with miscarriage of justice. Theise grounds are :fine, but I think I can dispose of the case on some other ground. The law with regard to these applioations i.e. for setting side ex-parte judgment is quite settled and unambiguous: The Central theme running through all the authorities I mow: of, is that Courts should be very reluctant to proceed with one side of a 0ase unless it is absolutely satisfied \ , ; that the other side is deliberately thwarting judioial process. AP far as is possible, Courts should hear both sides of the case and decide on merits. Cat and mouse game should never be encouraged. The case of Shah v: Mbogo {:1967 J E.A. ll6 has said that: 11 The Courts disoretion to set aside a judgment obtaihed ex-parte is intended to exercise to avoid injustice resulting from accident, inadvertene, or exusablP. mistake or error, but is not designed to assist a person who has deliberately sought, whether by e~asion or ~thet,wise to obstruct, or delay the Course of justice. 11

...:... .. .. 4 which he There are observations by my br3thflll' Chipeta Jc i mak:J:S- ... in the case of . . , " · . Petro Bujij_L,y: Daljeet Sin&:h Diloo t/a Do9;. _ !.u~~,:h,Y~ Ci'.v±i·:·case No. 14/82 (Dod,,ma) o ex parte, he said: Allowing an appli ::a.ti.on to set:. aside a judgment given 11 It has been held on rJ~:.:'<J ·-ccasions than one that ,,. f k it is preferrable tha.t suits must be determined on the merits in the absence of ahy evidence that a . ". party is trying to obstruct 0r delay the. Q~se ?f justioe er is indiligent or cthe.rwise acting ma1a fide. Tc deny a rubj ect, the right to a hearin&. should be the last resort of e. Court' 1 (d8}~ta J.-. there quotes two cases -Sc:dha v,, i{emraj 7 U.-L.R. at page 11, and Sebei 'Distr;i.ct ... Ad.nrilrlstration v.: Gasyali r'J.968 7 EoA .. 300)·· •

• '-' , New, let me tl.ook at the facts cif this case to see whether the applicants have shown .sufficient cause for non-appearance. The affidavit of the appli- cants shows that hearing date of 24/11/98 was, according to the record fixed on 20/D/98~ The record does not show that the defendants (present .applicants) were to be info1~med by Su:nmons,, Again,Mr. Mahuma legrned advocate for the respondent, was not t:1e..-:-e,,' The date was fixed between the Magistrate and the respondent Seni SiJ.anga,, So, the main reason for the applicants not atter.ding Court on the day of hearing was because they were not served with summonso Again it .s surprising that the Court ' fixed a date of hearing just fcur days ahead, when the record before it was loud that the defendants hailed fron. Mtvanzae An application to set aside was made before the same Magistrate it was unjuotifiably refused. the ex parte Judgment given on 3/J2/98 ., ln Bariadi but it was refused. I think This appeal against the refusal by the District Court of Bariadi to set aside its own judgment given on 3/J2/98 is allowed. That judgment ( the Magis:trate calls it a ruling) dated 3/12/98 is set aside. This means ' that all orders emanating there from are .i:!L;:iperative. The matter is remitted back to Bariadi District Court for it to be heard ~~~o Another Magistrate cf competent jurisdict:i.on is to try the suit. This appeal is allowed with costs. . <J /( b J. E. CANCHE JfrDGE

. .,( A• -. .5 At Taba. 4th May 1 1999. r- Mr. Ruga.innkann.1 for the appellant. .. Respop.dent: present in person.