Watson Muhando vs Co-operative and Rural Development Bank (Civil Revision No. 16 of 1995) [1999] TZHC 134 (8 February 1999)

r ' IN THE HIGH COURT OF TAli'ZANIA AT DAR ES SALAAM CIVIL REVISION N0.16 OF 1995 WATSON MUHANDO .. ..... APPLICANT VERSUS THE CO-OPERATIVE AND RURAL DEVELOPMENT BANK ... , ........ RESPONDENT JUDGEMENT KALF.GEYA, J: The Applicant, Watson Muhando, implores this court to use its powers of revision and revise. the ruling of Kisutu Rrn's court handed down on 29/3/95. Facts leading to this application are simple. The Applicant went to the Rm's court following presentation of a Report by the Labour Officer which initiated Employment Civil case No.129 of 1994. The report was later supplemehted with a drawn up plaint (though this was not necessary, for, a labour officer's Report is as good as a plaint). On 5/12/94 summons for dispo~ai was issued - to be served on the Managing Director of·'the Defendant. The matter was fixed for mention on 21/12/94. It was mentioned on that date and again on 13/1/95 as the trial Magistrate was absent. On 27/1/95 it came before Manase, SRM, the trial Magistrate, again for mention when it was ordered that the Plaintiff prove his case exparte on 7/2/95. This was because the Defendant had never appeared on any of the dates fixed for mention .. The order for

2 exparte proof was granted after the Plaintiff had prayed for the same in the following words. "The Defendant has already been served however he has defaulted appearance and has not filed a written statement of defence. I pray to prove my case by way of an affidavit". Meanwhile however, the Defendant filed a chamber application supported by an affidavit praying for setting aside the order for· exparte proof. On 7/2/95 when the Plaintiff was supposed to prove his case ex-parte, faced by this applicatioh, he prayed for leave to file a counter-affidavit. Hearing of the chamber application was then pushed on to 22/2/95. On that date the Plaintiff raised a preliminary objection that the application was incompetent as it was supported by an invalid affidavit as it was unverified. Just for a pose and clarity - the Plaintiff was being represented by one Mrugaruga - Labour Officer while Mr Rwiza represented Defendant. Responding to Mr Mrugaruga's submission, Mr Rwiza said,· "I was praying for the amendment of the affidavit. I have just been served this morning. I have been caught by surprise. Last time my colleague had asked for time to file a counter-affidavit although he has raised a preliminary objection there is a

need for the court to be satisfied as to whether the defendant was duly served. This case falls under the ADR system. I pray that I be given time to file a WSD and see whether we can sit down and settle the matter under the ADR system". A ruling was then reserved till 17/3/95. That ruling was not delivered, except that on 29/3/99, we find on record the following:- "Court: The Clerk had not given the court record to me in time therefore I have not prepared the ruling. Court: However bearing in mind that this case falls under the ADR system it is proper that in the interests of justice the order to proceed exparte is set aside to give the parties a chance t6 settle the matter under the new procedure. It is so ordered". The court then proceeded to order for the filing of a written statement of defence. On 5/4/95 the record shows that pleadings were complete and the 1st A.DR meeting was scheduled on 25/4/95. On 25/4/95 ADR did not take place as the Defendant was absent. Mrugaruga applied for a copy of the ruling. Armed with this he filed the present revisional proceedings complaining that in the absence of any sufficient reason adduced by Defendant for his absence the court could not set aside the order for exparte

4 proof and that acting as he did, the magistrate, "(1) failed to exercise jurisdiction vested in him by law (2) acted in the exercise of his jurisdiction illegally or with material irregularity", and that as the plaintiff had sufficiently proved his claims the court should have entered judgement in his favour. Reacting to this, Kisusi, Advocate, for Defendant, in a lengthy itJ:- commendable submission argued that the court was entitled to do as it did,because - the order for exparte proof was improperly made, forJ~ccause it cannot issue on a date for· mention but hearing; that the filing of a written statement of defence in Employment cause is unnecessary as under s.134 of the Employment Ordinance parties may not necessarily file pleadings as the court is enjoined to hear and determine such proceedings without undue regard to technicalities; that the application for revision is time barred as it was filed 9 days out of time; that the application is misconceived as an order setting aside an exparte order is not subject of revision under S.79 of CPC, nor could the present revisional proceedings be initiated under S.44(1) ·of the Magistrate's Court Act as there is no material irregularity or error on the face of the record, and finally that the application lacks merits. I will start with the question whether an order for exparte

5 proof can be made when a suit is called on for mention. With respect to Mr Kisusi, his argument that it cannot is legally unsupported. First, as he well knows, none of our laws expressly provides a step in procedure termed "mention". This has just evolved out of practice and it simply aims at allowing a court and parties to take a necessary step towards the advancement of a case, i.e to decide on how and when actual hearing of the evid~nce or submissions on the issue in controversy should take place. Thus there is nothing wrong procedurally, for the Court on a mention date to order that one party proves his case exparte on a future date, for, that future date is a hearing date for all intents and purposes save that that hearing will only be executed by one party, the other party being absent for no cause known to court. The trial court in this case properly gave the order for proof, exparte. Regarding whether or not a written statement of defence is necessary in an employment cause, S.134 of the Employment Ordinance needs no interpretation or interpolation. Pleadings in such causes are not necessary once the Labour officer's report is made to the court. The section provides, "134(1): On receipt of a report under S.132 the magistrate shall, where the facts appear to him to be such as may found a civil suit, issue such process as he may think fit to cause the parties or either of them and the witnesses to attend.

6 (2) Upon the attendance of the parties the Magistrate shall proceed to try the issues disclosed in the report as if the proceedings before him were a civil suit, without requiring the parties or any to file any plea_ding. (3) The provisions of the Civil Procedure Code, 1966 shall, in so far as they may be applicable, apply to proceedings under this section: Provided that the magistrate shall hear and determine such proceedings according to substantial justice without undue regard to technicalities of procedure." However, where the claimant decides to supplement the Labour officer's report with a drawn up plaint, as was the case here, the defendant would automatically b·e entitled to pray for time to file a written statement of defence. The Plaintiff cannot be heard to say that whereas he found it necessary to supplement the labour officer's report with a plaint, the filing of the written statement of defence by Defendant was unnecessary. I am mindful of the provisions of s.134(2) quoted above which is phrased in somehow mandatory words

• the court is supposed to proceed and try the issues without \ requiring parties to file pleadings, and to hear and d~termine

7 such proceedings according to substantial justice without undue regard to technicaties of procedure''. But, once the same court allows the plaintiff to depart from this otherwise prescribed procedure by filing a plaint, natural consequences flowing there from would enjoined same court to allow defendant to file some~ reply. Without deciding on other contested issues therefore, there was nothing wrong with the prayer by the defendant for adjournment to allow him effect a written statement of Defence and so is the consequent order by the Court granting the same. On whether the application is time barred, suffice to say· that indeed, as rightly submitted by the Defendant, an application for revision, being an application for which no period of Limitation is provided elsewhere in the Law of Limitation Act (No.10/71} or in any other written law, it falls under item 21 of part III of the First Schedule to the Law of Limitation Act and therefore cannot be filed beyond 60 days unless leave was granted first following an application for extension of time made under S.14(1) of the same Act. The said it.em provides, "Application under the Civil Procedure Code, 1966, The magistrate's Court Act ... or other written law for which no period of limitation is provided in this Act or any other written law .... 60 days". , . '

s The present application was filed beyond the 60 days' period by 9 days (29/3/95 to 7/6/95). Its fate on that ground needs no emphasis. We now turn on the question of whether an order setting aside an exparte order is subject of revision under S.79 of the ~ivil Procedure Code. Mr Kisusi strongly submitted that it is not and cited Matemba v. Yamulinga (1968) E.A. 643. In that case, Mustafa, J, held that it is not, as, an aggrieved party could attack the order on appeal against the final decree. In order to appreciate the reasoning of the learned judge let us go through what he said (also quoted by mr Kisusi). ''Again, the applicant has stated that he has applied by way of revision because he is precluded from appealing from the order or the trial magistrate. He refers to MULLA'S CIVIL PROCEDURE CODE (10th Edn. ), p. 605, where in a commentary on 0.9, r.13 of the Indian Civil Procedure Code which refers to the setting aside of ex-parte decrees there is this passage. ''If, in a case open to appeal, an application under this rule is dismissed an application lies from the order dismissing the application, whether the dismissal was on merits or for default. But where the

9 application is granted, no appeal lies from the order granting the application." Applicant therefore stat.es that he is entitled to apply for revision to this Court as he is precluded from appealing. However, on the same page of MULLA'S CIVIL PROCEDURE CODE under the heading Revision, this passage occurs: "It has been held by the High Court of Allahabad that an order setting aside an ex- parte decree is not subject to revision under S.115, the reason given being the validity of the order may be attacked under S.105 in an appeal from the final decree." Section 105(1) is more or less the same as S.75 of our Civil Procedure Code. In my view, the application by way of revision has no merit and is misconceived. The application is dismissed. As the respondent has not appeared, I will make no order as to costs." I should observe however that while the decisions of the Court of Appeal of East Africa are of great pursuasive value they are not binding on our courts, and that while facts in Maternba case are different. from the present ones, with respect, the learned judge omitted a relevant part in the quotation (and, for that rnatte~whether by design or inadvertently, the same omission was committed by Mr Kisusi) . Following immediately after the word "decree", which appears last in the

10 last but 2nd paragraph of the quotation above, are the following words .. "But this case has been overruled by a Full Bench which has held that such an order setting aside an exparte decree may be set aside in revision if it is not based on any ground recognised by law". The above appears on page 824, indeed under the section entitled "Revision", in Mulla on code of Civil Procedure, Vol.1, thirteenth Edition (1965). With respect to Mr Kisusi, therefore, the authority already overruled by the same Indian Court could. not be an authority to be relied upon by the Court of Appal of East Africa and consequently cannot support a proposition that such order is not subject of revision. That aside, in my opinion, regard being had to the wide powers of revision conferred on the High Court by S.79 of our Civil Procedure Code such an order can be revised if the defects fall under any of the categorie provided there under. The said. section provides, "(1) The High Court may call for the record of any case which has been decided by any court subordinate to the High Court and in which no appeal lies thereto and if such subordinate court appears:- (a) to have exercised a jurisdiction not vested in it by law; or

11 (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. the High Court may make such order in the case as it thinks fit. (2) Nothing in this section shall be construed as limiting the High Court's power to exercise revisional jurisdiction under the Magistrates' Courts Act, 1963." . ~ - ·: ·.; ·.~ . - .. Can Mr Kisusi insist, for example, that under that wording,·· . ·•· ·". an order setting aside an exparte decree which order is not based on any ground recognised under the law (an example given by Mulla) is not covered? That would be mere arguing for the sake· of argument. Mr Kisusi also argued that neither could revision be maintained under S.44(1) of the Magistrates' Court Act, 1984 because, "For the law to be moved under the said section it must appear to the court that there is an error material to the merits of the case involving injustice", I can only briefly state that if this matter did not concern an employment cause, for which the law already quoted above

• 12 provides that the court has to ''hear and determine such proceedings according to substantial justice without undue regard to technica.lities of procedure", it would have been a fit example where S.79 CPC or 44 of the Magistrates' court Act, of necessity, had to apply. Why? At the beginning of this ruling I quoted the proceedings of the trial court on both 22/2/95 and 29/2/95. The court reserved the· ruling. It was not delivered on the date fixed. What meets us next is a story of th~ trial magistrate that the Bench clerk had not availed him with relevant file hence no ruling was written! All the same he proceeds to give an order setting aside the exparte order on reasons different from those which are genera11j• advanced to assail such order.$• As rightly argued by the Applicant, under 0.9 Rule 13, CFC an exparte order could be set aside if the opposite party adduces sufficient cause for his absence wh~n the order was made. Though the court has full discretion in deciding this, it must discuss and analyse the reasons advanced and make a finding whether or not there is sufficient cause. In normal suits failure to deliver a ruling is a procedural error fit to be revised, for, the court would have failed to exercise jurisdiction vested in it by law or exercised it with material irregularity. Mr Kisusi had strenously argued that case law has gone further to insist that suit should always be determined on merits rather than technicality I j_' e. exparte and cited {He) IGUNGA DI STRICT

13 COUNCIL vs. TABORA REGIONAL COOPERATIVE UNION LTD, Civil Case No.13 of 1986, Tabora Registry, (unreported) in which a Uganda case, SODHA V HEVRAJ (7) ULR at page 11 was cited with approval; that suits should be determined on merits unless ther~ is evidence that a party is trying to obstruct or delay the course of justice or is otherwise acting mala fida. He went on to cite GIRADO vs ALM & SONS (U) LTD (1971) E.A. 488 which held that it could be set aside even where no sufficient cause is shown, and caped it all with a Kenyan case, KIMANI VS MCNNELL AND ANOTHER (1966) E.A. 547 where one major consideration was stated to be whether in setting aside an exparte decree the Respondent woli1f:·r.:-~ .. ; I. suffer irreperable injury which cannot effectively be providet--· · , ' ., ·: .. : against by an order of costs. With respect to mr Kisusi, while I cannot, (and with honesty to himself he cannot either) accept a proposition which says that case law is superior to statute or subsidiary law, there is no need to discuss the cited authorities for they were dealing with a different set of facts - in those cases the question was the setting aside of judgment and decree while in the case at hand we have just an order permiting a party to prove his case exparte; we have an employment cause whereas\the other cases were normal civil suits, and lastly, in those cases the courts had committed no procedural error unlike in this case where no analysis of the reasons advanced by parties was made and no ruling was written. All that said however, the fact that this is an

-ti • 14 Employment cause, S.134 of the Employment Ordinance clearly cures what would have otherwise been an irregularity in normal civil suits. The court is enjoined to hear and determine such proceedings according to substantial justice and without undue regard to technicalities of procedure. The court took into consideration what the Defendant's counsel had presented, among others, that they were ready to settle under mediation - under the Alternative Dispute Resolution system currently functioning in our Civil System - and decided therefore to vacate the earlier order made for exparte proof. In view of S.134(3) it was entitled to act as it did. .i.· • i•. _· ,p/ ·-· For reasons discussed above the application for rev1s1onDY· Applicant/Plaintiff is dismissed. The trial court to proceed from where the proceedings had reached as per court record. Considering the relationship of the parties and the nature of dispute I make no order as to costs. L.B. Kalegeya ,JUDGE , l certify th" L t' · · - • . -· •-·~-·-

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