Kulwa Daudi vs Rebeca Stephen [1985] TZHC 15 (30 May 1985)


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.

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;

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.


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