KULWA DAUDI v REBECA STEPHEN 1985 TLR 116 (HC)

KULWA DAUDI v REBECA STEPHEN 1985 TLR 116 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

May 30, 1985

MISCELLANEOUS CIVIL APPLICATION 2 OF 1985

Flynote

Civil Practice and Procedure - Revisionary Powers of the High Court - When may be

B invoked - Magistrates Courts Act, 1984, s.44(1)(b).

Civil Practice and Procedure - Ex-parte judgment - Judgment entered without calling

upon the plaintiff to prove his case - Whether proper - Order 14 Rule 2(b) of the Civil

Procedure Code. C

Civil Practice and Procedure - Service of summons - Whether substituted service may

be ordered where the defendant is not trying to avoid service - Order 5 Rule 20(i) of

the Civil Procedure Code.

Landlord and Tenant - Ejection orders - Order to eject tenant in arrears of rent -

Whether D reasonable - Rent Restriction Act, 1962, Cap. 479, s. 19(2).

-Headnote

The respondent, a landlady had filed a suit in the Mwanza Resident Magistrate's

Court E claiming arrears of rent from the applicant, and vacant possession of the

premises. The suit was filed after the applicant had left, with the respondent's

knowledge, on a trip to Kenya. The court ordered substituted service by affixing

summons on the door of the last known premises of the applicant and subsequently,

ex-parte judgment was entered F in favour of the landlady without calling upon her

to prove her case. The tenant then applied to the High Court for revision under

s.44(1)(b) of the Magistrates' Courts Act, 1984.

Held: (i) The revisionary powers of the High Court may be invoked by any party to

civil G case or on the motion of the High Court to correct an error resulting in

injustice committed by a district court or court of a resident magistrate;

(ii) the ex-parte judgment in this case offended against the law because it was

entered into without calling upon the plaintiff to prove her case as provided for under

H Order 14 Rule 2(b) of the Civil Procedure Code;

(iii) Considering that the plaintiff knew from the beginning that the

defendant was away only temporarily, the trial court exercised its discretion wrongly

by ordering substituted service in the absence of any reason to believe that the

defendant was trying I to avoid service;

1985 TLR p117

MWALUSANYA J

(iv) before making an order for ejectment or recovery of possession, the trial

A court ought to have made a specific finding and to have satisfied itself that, having

regard to all circumstances, it was reasonable to make such an order.

Case Information

Application allowed. B

Cases referred to:

1. Hindson v Kersey (1765) 8 How.St.Tr. 57.

Judgment

Mwalusanya, J.: This is an application filed by one Kulwa d/o Daudi C for an order

to set aside the decision of the Mwanza Resident Magistrate's Court of 22/9/1984

which was passed ex-parte against this applicant. The respondent in this application

is Rebecca d/o Stephen who was the plaintiff in the lower court.

The brief history of the case is as follows. On 2/8/1984 the respondent who is a D

landlady filed a suit at Mwanza RM's Court praying for vacant possession of her

premises and she claimed arrears of rent against her tenant, the present applicant.

When the suit was filed, the tenant was away on safari to Kenya, and that fact was to

the landlady's knowledge.

Substituted service was ordered on 25/8/1984 by affixing summons on the door of the

E last known premises of the tenant; and after due service ex-parte judgment was on

22/9/1984 entered in favour of the landlady. Later execution of the decree was duly

made. It was not long when the tenant filed this application.

At first blush I was of the view that this application was misconceived as the proper F

procedure was for judgment-debtor to apply to the trial court to set aside its ex-parte

judgment. However on close examination of section 44 (1) (b) of the Magistrates'

Courts Act No. 2 of 1984 under which this application is made, I find that the

application is in order. The section which is referred to above states: G

The High Court may, in any proceeding of a civil nature determined in a

district court or a court of a resident magistrate, on application being made in that

behalf by any party or of its own motion, if it appears that there has been an error

material to the merits of the case involving H injustice, revise the proceedings and

make such decision or order therein as it sees fit.

So the question in this application is whether it has been sufficiently shown that there

has I been an error at the trial resulting in an injustice to the applicant.

1985 TLR p118

MWALUSANYA J

The first complaint raised by the applicant is that the ex-parte judgment was wrongly

A entered as there was no order on 8/9/1984 directing substituted service as assumed

by the trial magistrate. The short answer to that complaint is that that was a mere

slip of the pen. The trial magistrate had meant 25/8/84 and not 8/9/84 when the order

for B substituted service was given. So in that respect there was no impropriety as

contended by the applicant.

The second complaint raised is that judgment was entered ex-parte without calling

upon the plaintiff to prove her case by oral evidence or affidavit. On perusal of the

record I find that this remonstrance has merit. This was a case which fell squarely

under Order C 14 rule 2 (b) of the Civil Procedure Code Act No. 49 of 1966 and so

judgment could only be entered ex-parte after plaintiff has proved its case by oral

evidence or by affidavit. Failure to comply with that procedure, must be offending

the law. So the judgment passed was against the law. If plaintiff had testified perhaps

the court could D have found that she was entitled to less rent than she had applied

for. That matter about the amount of rent in arrears has been the subject matter of

dispute canvassed during the hearing of this application. I was not in the position to

resolve it in the absence of any evidence adduced at the trial. E

And there is great force in the submission by applicant that it was a mockery of the

legal process when the trial court exercised its discretion by ordering substituted

service, where it was apparent on the plaint that applicant was on safari. The tenant

had left with a message to the landlady that she was going to Kenya and would be

back in due course. The tenant had locked all her belongings in the room. The trial

magistrate F should note that as given in Order 5 rule 20 (i) of the Civil Procedure

Code, substituted service can only be ordered if the court is satisfied that there is

reason to believe that the defendant is keeping out of the way for the purpose of

avoiding service or that for any G other reason the summons cannot be served in the

ordinary way. In this case it was not investigated at all that the tenant was avoiding

service. In fact the tenant was not aware of the suit, and she had left the country

with the blessings of the landlady. I agree that the trial court exercised its discretion

wrongly in ordering substituted service and that resulted in an injustice. The trial

magistrate should always remember that judicial H discretion is not the indulgence

of a judicial whim, but the exercise of judicial judgment, based on facts and guided by

law. Lord Camden had always considered discretionary powers to be dangerous and

so he lamented in Hindson v Kersey (1765) 8 How. St. Tr.57 thus: I

The discretion of Judge is the law of tyrants; it is always unknown;

1985 TLR p119

it is different in different men; it is casual and depends upon constitution, temper and

A passion. In the best it is often times caprice, in the worst, it is every vice, folly and

passion to which human nature can be liable.

That ends up the discussion on why I think substituted service should not have been

B ordered in the circumstances of this case.

There is also another reason for which the decision of the trial court cannot be spared

of strictures. Under section 19 (2) of the Rent Restriction Act 1962 Cap. 479 (as

amended), no order for ejectment or recovery of possession of premises can be made

unless the court is satisfied by the landlord that having regard to all the

circumstances of C the case it is reasonable to make such an order. So after the court

had found that the tenant was in arrears of rent, it had to proceed further and make a

specific finding as to whether it was reasonable to make an order of ejectment. That

much the trial court failed to do and so it erred. Perhaps it could be said it is

unreasonable to condemn the D tenant unheard and so decline to make an order of

ejectment. There are numerous other factors to be considered as to whether it is

reasonable to make an order of ejectment.

For the reasons optimised above the proceedings of the trial court have to be revised.

I F accordingly set aside the ex-parte judgment and order that the suit proceed to

trial in accordance with the law.

Application allowed.

1985 TLR p119

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