Sahara Marketing Corp. vs Jane Jutta (Misc. Civil Cause No. 148 of 1997) [1998] TZHC 2074 (4 September 1998)

IN 'I'Hi HIGH COURT OF TANZANIA . AT DAR·~~ SAfiA/11,· I ',' lfl·.-.'t~ • .. ' MISC; crv,' cAtlE .No;f 14a/1997 ,• i!_.f- l ! . · f ' , f ' SAHARA MARlCW'rINO CORP, , 1 •., + • • • APPLlCANT Versus JANE JUTTA ••••••••••••••••••••• Rl.'.i3?0NbENT M:ITTA, J; .x This is a..n application for enlargement of time in which ttt lodge an appeal against tne judgment and decree in Civil Case Not 10 of 199£5 ot kiltftU RM t $ Court, The Applicant is repre• '3nted by Hr! Kap:inga, ieatnt¼d acl.Vijoa.te, The Resipondents have aeouted th eerviet$ tlf M ,A+ :Ml.anzt ahd Campany• Advocates~ Before the matter could be heard 6h the merits, Advacates for the Respondents raised a preliminary objection that the applicailion is incompetent in that:» ( a) The aUgflH!ht of th court given on the 2nd day bf .Atigust, 1996 is properly speaking a def'aul t judgment and not an exparte judgmer.1:; (b) I:f t· Whiti~ is denied as a foresaid, the same .is an exparte jt+dgment, the same is not appellahle and. therefore the application for extension of time is devoid of any merit. The hearing of the preliminary O'bjection was by way •f written submissions. Briefly the facts are as .follows:- In Civil Case No. 10 of 1995 the Respondent was the P laintif! and the Applicant was the Defendant .. Th,e Defendant was served by way of substituted s:ervice. by publicatio·n in Uhuru newspaper dated 20th July,. 1995. The said pubillication r'equired the Defendant t~ appear in court an 2nd Au:gus·t, 1996 when the matter would come. up for mention.. ,/hen tile matter came up tor mention on 2nd August,. 1996 the :Qfend:ant did not-- appear·_and. ~ not 'filed a wri tteh statement 6.! cie:t:erlce. The eijpbndent i ij ~ iaintiffS) . . . advocate applid. for jt1dgie.nt as follo\Js- ;; Mr. Mla,nzJ:,_- p.:r;a.f for j4~-ent becau$e- D:tdant has not enterd appearanc~ and ne di' ence, hitS bean ma.de •. ORDER-- Exparte· judgment entered on the basis of the ~laim as contained in .and prayed in the plaint,,.

2 The lea:rnad c.'id\rocate for the Respon,:lent argued· that c1n exp art~ jtJdgmnt on tne. ground of f ailur·a· to iris.lie an appe;; ranee .. nd defend thi:? suit is not appi!Jllable,, Its f'ic;>ct is that of a default judgment and the only available way of challen,7,ing tne same is by way of an applicetion to set aside the sa1ne under ·order 9 rule 13 and· rl:·store tht? suit to be detE.,rmir.ed 0n merit. Ip support of his contention he quoted NJ\TIONAL .? ANK OF C0MMB11c: 1 i V. GRACE SEi-IQELA ( 198) TLR 248 Mr, Kapinga, lerxne advocate for the Applicant argued that the order made in Civil Case No-. 10 of 199.5 i$ -ap-i;:rei1able hecaus,e it reads 11 Exp:i.rte ·Judgment entered cm the basis of the claim as contained and pr-a.yed fer. ifi the plaint1 ~ f:le asserted that the said o:· der does not talk about ·default .judgment but exparte .ji..idgment. 'l'he learned ad\rocat·e conc·edes tha't the defirtitiop. of e:x-part jud,gment 11 according t0 the concise Law bi-ctionati'Y, uy P .G Osborn i,)f! i:n the absence of the otner pafity~ ':rvlr,. K9.pinga. argueci that this, is an ·exparte decree appellable ·by virtue of s2ction 70 sub-section () of' the Civil :Procedure Code 1966... Mr. Kaping,9- distinguished liA'l'IGNA BANK 01':, COMMERCL v .. GRACE S>:.:;-:;;.i;LJ. {198),i,) Tf.Jl 48 6n the basi.s that in that case there Was no decree , 1 and that the intended purpose of the appeal is to chall;•:1ge the decree. He prayed that for :these :rea:•sons the p.reliiY:inry objection :be dismissed -...ii th cots and the appL.i: 0 cation proC!':ed. to haring. . trt order "~o get the -~uiswer as to whether the· order made ·by the Reside-"1t Mag1s·trate in Gi vil Case N.o .• ·10 of 199·'..5 i.s appeilable ,.r not a close examination -o-f the relevant provi .... sions of t:·.ie -Civil Procedure Code 1966 is called for. '1\he .proce(,,·_ r to be followed where the plaintiff appe&:i. ~ arid the defendrnt does -not appear ·on the appo'inted day as happer;ed in the .,1stant case 1s spel:led out in order 9 riile ·6 of th 1 ! Ci'Z/-1 Procedure Code. Rule .6 prQvides; inter alia.. 11 6 (1) Where :the P1aint.i:ff appears and the defendant does not·appear when the suit is called. for hearing then-- ·- ·- · • (a) ,(1) ii the 1ui t is t>efori hie Hi_ga court . and it is proved that the summons was dul 1 sr ,~vPrl. the cou.r·t may proc:eed exparte;

• .3 (ii) If the suit is before any court other than the Hig.r; Court. (A) ;vhere the sumir,ons i3:_.:;ue.d v,:as a summons to file defence and it is prov'?d that the .surnirions 1 rJas duly served 9 the court may proceed ex parte; (B) The summons issued was a summons to appear 7 . and i:: is proved tha_t the summons was duly served 7 the court may enter ;judgment for the plaintiffii. •The publication in the Uhuru news paper dated 20th July 1 1995 was as follows:- KUOT1JA SiIAURINI NAHAKfa}1A YA i-IAKItiU rflKAZI KISt.JiTU D/1.Il .2S SALAAM I D.1AJA NO.. 10/1995 - KU11\J.l'.j SHAURHH HFCNGUAjI vA fiADAI; JANE JUT'.CA DHIDI YA MLALA!'JiIKI dA ~~tANCl-I MANJ,GER S.lHARA MARKETING C,Ol-<?9R1-\ TION. Kwa Bra.nch Manager, Sahara Marketing C.orporation pop_ote alipo Tanzania. Unaombwa. uf ike Marwkama.mi hap a siku ya flhamis, tarehe 26. 7 01995 bila ya kukosa shat1ri hili l:i.takapo ajwa ter,.:.. Dar es Salaam },Ja rnkono wangu na muhu1.:,i ,,..,-a Viahak8.ma hii leo tar'<?he 17? Julai 1 1995. Hakimu Mkazi Dar es Salaam. It appears th2t this was an equivallent to a summons to I - . appear. Hence the learned Resident Magistrate app-ears to have entETed judgment under paragraph {a) (ii) (B) of sub-rule (1) of rule 6 of order 9; althmigh it, 1.vas not proper to do so because the s.ui t was coming up :for mention· 2,.nd not for hearine;. Rule 13 of Order 9 makes prevision for c:;etting aside ·,._ decrees and judgments entered ex. parte against a defendant. It provides: - l1 lJ (1) In any case in \i,rhich a decree if passGd ex-uparte agairst a def.:mda:1t, he may apply to·thecourt by which the decree was passed for an order to set it aside~ and ii' he .satisfies the ccmrt that the su:mr:1ons was riot · duly served, or that he was· prev1:?rited by· a~1.y · suff'icient cause from appearing ·,,rhe:n the suit ·. ✓ as 0 ••• 0 • /4

t :um upop.- such terms a::; - court or 0therwise as it thinks 1J.1,,, appoint a day for proceeding with the suite P rovL.ied that where the decree is of such a _naturt: that it cannot be set aside as ·against , such Uef,3ndant only it may be set aside as agq.i;:03t all or any of the other def:endants also. ( 2) 1/t;.ere judgment has heen entered by a court , ., pun,sua'.1t to paragraph (a) (i) (B) of sub-rule (1 of rule E; bf this order or sub-rule (2) of rule of orc'.er ,-,g it shall be lawful for the court, _ upo: a;;tplicati -t being made by an aggrieved party wi tl six weeks from the date of the judgment, ·to set aside or vary such judgment upon such terms .. as . m< be considered by the court to be just; ' ·P rovid .ed that where a decree has been issued pr•ior to such application being made the provisi< of the Ind.ian Limitation Act, 1908 as applied to I , Tanganyika. (Now Law of Limi taton Act, 19'i.1!) shall appl y". In ;,ATIONAL BAN: K OF COMMERCE V. GRACE SENGELA '(1982) D 24S where the Magistrate dismissed the suit on grounds of d , . of apyearance on the· date fixed for mention, Bahati, J proc ou the fooing that it was proper. to apply for r '.Storation , I suit and not lodging · an appeal. I am of. the opi nion tha_t the proper action in the ir case would have bee to apply for restoration of suit un ' 13 of order 9 of the Civil Procedure Code. In te_rms of par, agraph ( d) of Order 40 of the Ci vi] I dure c,,de an order under rule 13 of order 9 rejecting tion for· an order· to set aside the di.smissal of a sui· llable, I am of the ap~.nion, therefore, that before apr this court the Appli.cant,should first apply to the made the decision ir.~ default of appearance, to set I decision so that th~; matter should be decide on tr

( ) ' Fqr 'the above reason.;s aμ·. appication for enl2rge;nent of tirrie in which to lodge an appeal to this -court agains-·; the judgment i.11.d decree in Civil Case No. 10 of 1995 of tne Kis'.1tu RTVI I s Court is premature. The preliminary objection ;_q upheld with costs. ( Sgd) f-'ivv I 'I'; 1 Q1!..ffi. r~; Delivered in Chambers in the presence of Mr. Ka_pinga, learned Advocate, this 4th September, 1998. (~gd) JUDGE CCRTI?IED TRUE COPY OF 'l;'HE ORIGINAL. if I '· I ,,