WILLOW INVESTMENT v MBOMBA NTUMBA AND TWO OTHERS 1997 TLR 47 (HC) A

 

WILLOW INVESTMENT v MBOMBA NTUMBA AND TWO OTHERS 1997 TLR 47 (HC) A

Court High Court of Tanzania - Dar es Salaam

Judge Mapigano J B

CIVIL CAUSE 118 OF 1996

6 February 1997

Flynote

Civil Practice and Procedure - Summons - Service - Rule 30 of Order 5 CPC - Service

by DHL equivalent to service by post. C

Civil Practice and Procedure - Jurisdiction - Enforcement of foreign judgments -

Parties both foreigners - Immaterial that owners of one party Tanzanians.

-Headnote

The second respondent brought an application for the review of an order passing D

judgment on it based on the judgment of the Court of Appeal in Lubumbashi, Zaire.

Summons had been served on the second respondent by DHL and in the absence of

the second respondent the applicant was allowed to prove the suit ex-parte by way of

affidavit. E

Held:

(i) That the parties were both foreigners and the applicant had given no

good reason why it had failed to have the decree executed in Zaire. It mattered little

that the applicant was owned by Tanzanians. In the absence of a proper nexus

between the litigants and Tanzania, the Tanzanian court had no jurisdiction in the

matter; F

(ii) Service by DHL was essentially service by post and accordingly the

provisions of Rule 30 of Order 5 CPC were applicable. As no return of service or other

notification had been received from Zaire, the requirements of Rule 30 had not been

met. The proceedings against the second respondent and the Court order were

therefore set aside as nullities. G

Case Information

Application allowed.

No cases referred to.

Shinganya for the applicant.

Dr Mwaikusa for the second respondent. H

[zJDz]Judgment

Mapigano J:

OCS Company has brought an application for review of the order dated 27 September

1996 passing judgment against it on the I

1997 TLR p48

MAPIGANO J

A strength of the depositions contained in Costa Shinganya's Affidavit made the day

before. The application is opposed by Willow Investment, the decree-holder.

In short the matter arises in this way: Willow instituted a suit against OCS and

another in the lower court of Lubumbashi in Zaire and the action succeeded. An

appeal taken against that judgment to the Court of Appeal in Lubumbashi was B

dismissed. The judgment was not executed in Zaire and when Willow discovered that

another Zairean company which was allegedly indebted to OCS was possessed of

goods in Dar es Salaam it filed a plaint in this Court seeking C judgment and decree

against OCS in the sum adjudged by the Lubumbashi Court and an order that the

decree be executed by attachment and sale of the said goods. Upon an application by

Willow this court directed that service of summons to OCS be effected by DHL. On

26 September 1996, ie nine days later, Mr Maira D counsel for Willow informed the

Court that service has already been effected, and since OCS did not show up on the

day appointed in the summons, Willow was allowed to prove the suit ex-parte by way

of affidavit. As mentioned above, judgment was entered on the morrow in favour of

Willow in the sum adjudged and decreed by the Zairean Court on the basis of the

materials set out in Costa Shinganya's affidavit. E

The memorandum of review contains four grounds. The first ground is that this court

had no jurisdiction to entertain the suit. The second ground is that the whole

proceedings amounted to an abuse of the court process. The third ground is that F

the case was actually decided without OCS having been served with summons or

otherwise given an opportunity to be heard. And the fourth ground, which is framed

as an alternative, is that the matter was res judicata.

In his address Dr Mwaikusa who advocated for OCS dealt with the first and G

second grounds together, and I think properly so. He expressed the view that the

jurisdiction given to this Court to adjudicate on matters arising outside Tanzania is

restricted and does not extend to causes in which the parties are foreigners. He

pointed out that Willow and OCS are foreigners, that the cause of action arose in H

Zaire and was adjudicated upon by the Courts in Zaire, and that Willow has not given

any good reason whatever why it has failed to have the decree executed in Zaire. To

this counsel for Willow, Mr Shinganya, has replied that what this Court stated in a

previous case between the same parties, ie Misc Civil Cause No 34 of 1996, is

applicable to the present proceedings, and that the shareholders and directors of

Willow are Tanzanians. I

1997 TLR p49

MAPIGANO J

Dr Mwaikusa is right. The parties in this case, ie Willow and OCS, are both A

foreigners, and it matters for little that Willow is owned by Tanzanians. It is true

there is nothing in the evidence that was presented by Willow which shows why it

has not executed the decree in Zaire. Surely the High Court of Tanzania cannot be

and should not pretend to be, an international judicial tribunal to which foreign

litigants, all and sundry, can resort to. As Dr Mwaikusa put it, there must be a B

proper nexus between litigants and Tanzania.

In regard to the third ground of appeal Dr Mwaikusa makes the substantial point, and

Mr Shinganya concedes, that service by DHL is essentially service by post, C and,

accordingly, the provisions of rule 30 of Order 5 CPC are applicable. The rule

provides that service by post may be deemed to have been duly effected if (a) the

summons is returned by the defendant endorsed with an acknowledgment of receipt;

or (b) a letter or other document is received from the defendant indicating that he

received the summons; or (c) evidence is produced that a postal packet D was

received by the defendant, supported by a certificate of an order of the court that the

postal packet contained the summons. Dr Mwaikusa points out, correctly, that no

such summons or document was received from Zaire and no such evidence was

presented to this Court before the order for ex-parte proof was given. This is a

powerful submission and must be accepted. The matter was E clearly governed by

Rule 29 and the provision is one which ought to have been observed.

But there is nothing at all in the point raised in the fourth ground of the F

memorandum. In Misc Civil Cause No 34 of 1996 Willow had sought the registration

and direct enforcement of the Zairean judgment, and the application was made under

Cap 8 of the Revised Laws. Objection was taken by the respondent, Gecamine, and

sustained. It is true the application was dismissed for want of jurisdiction, but there is

nothing that I stated in my order which is relevant G to the present matter or which

can render this matter res judicata.

Mr Shinganya has raised two points in the course of his address. The first is the

contention that this application is defective, on the ground that the memorandum is

not accompanied by a copy of the decree. The second point is that the application is

misconceived and that what OCS should have done is to bring an application for

setting aside the decree, under Rule 13 of Ord 9 CPC. Dr Mwaikusa's answer, H

which I am bound to accept, is that it would not have made any sense for OCS to file

a copy of the decree when there was one in the court record already, and that OCS is

not just aggrieved I

1997 TLR p50

A by the ex-parte judgment but is also contesting the jurisdiction of this Court to

entertain the suit.

This application therefore succeeds. The proceeding against OCS and the order given

by this Court on 27 September 1996 are set aside as nullities, and Willow Investment

is to pay the costs. B

1997 TLR p50