IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(.CORAM: MWARIJA. 3.A., KITUSI. J.A.. And KEREFU. J.A.^

CIVIL APPEAL NO. 260 OF 2018

MOUNT MERU FLOWERS TANZANIA LIMITED...........................APPELLANT

VERSUS

BOX BOARD TANZANIA LIMITED...........................................RESPONDENT

(Appeal from the Ruling of the High Court of Tanzania at Arusha)

(Opiyo, J.)

dated the 10th day of May, 2016

in
Civil Case No. 8 of 2016

JUDGMENT OF THE COURT

8th & 12th February, 2021

KITUSI. J.A.:

The respondent, a limited liability company, instituted a civil action

against the appellant, also a limited liability company, by presentation of

a plaint at the High Court in Arusha on 5th March, 2016. On 3rd May, 2016,

the appellant filed a Written Statement of Defence, henceforth, a WSD,

after a summons had been issued to it on 11th day of March, 2016. These

dates and the type of summons issued to the appellant are significant in

the determination of the matter before us.

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 When the parties appeared before the trial Judge, the respondent

raised a preliminary objection alleging that the WSD had been filed out of

the statutory time. According to the respondent, the WSD was supposed

to have been filed within 21 days of the service of summons on the

appellant, but it was filed 44 days later. The appellant's position on the

other hand was that when a matter is instituted at the High Court, the

defendant is served with a summons to appear, in which case he may file

a WSD within 7 days of the date of first hearing if he so wishes. He further

argued that since the matter was scheduled for hearing on 10th May, 2016,

the WSD field on 3rd May, 2016 was within time.

The learned High Court Judge sustained the preliminary point of

objection and held the WSD to be out of time and ordered the matter to

proceed for ex parte proof. Aggrieved, the appellant challenges that

decision on three grounds.

The first ground of appeal is that: -

"(a) The Honourable trial Judge erred both

in law and fact in ruling that the
appellants were properly served with
summons to file written Statement of
Defence within 21 days from the date
 o f service but failed to do so within
time.

Parties were represented by counsel who had earlier filed respective

written submissions and they addressed the Court orally to clarify on those

written submissions. In arguing the first ground of appeal, Mr. Michael

Lugaiya who represented the appellant, combined it with the second

ground of appeal which raises the following complaint: -

"(b) The Honourable trial Judge erred both

in law and fact in ruling that the
summons to appear for hearing
required the appellant to file a written
statement o f Defence within 21 days
from the date o f service."

Counsel for the appellant submitted that the summons issued to the

appellant had the word "mention"cancelled, so that it remained that the

matter was set for "Hearing." He further argued that a summons for

hearing which was issued to the appellant is governed by the provisions

of Order V Rule 1 (a) of the Civil Procedure Code, [Cap. 33, R.E. 2002]

hereafter the CPC. He went on to argue that where a summons to appear

has been issued the defendant may, and if required by the court he shall,

within seven days before the first hearing, present a WSD. It was Mr.

Lugaiya's submission further that the appellant acted in compliance with

the above law by filing the WSD seven days before the date of first

hearing.

Referring to relevant parts of the ruling under consideration, Mr.

Lugaiya submitted that after appreciating that the summons issuable by

the High Court is a summons to appear under Order V Rule 1 (a) of the

CPC, the learned High Court Judge ought to have dismissed the point of

objection and that it was not open for her to invoke what she referred to

as the practice of the Court, that went against the law.

The third ground of appeal is more of a conclusion of the first two

grounds than a ground of appeal itself. It states: -

"(c) The Honourable trial Judge erred both

in law and fact in ruling that the
written Statement o f Defence was filed
out of time."

On the other hand, Mr. Mgoha learned counsel who acted for the

respondent, had two arrows to his bow. First, he submitted that the copy

of summons appearing at page 52 of the supplementary record of appeal

is not the one that the appellant was served with. He recalled that the

appellant had been allowed to file a supplementary record so as to include

the correct copy of summons, but he has still filed the same old copy that

had been objected to earlier. In rejoining this point, Mr. Lugaiya

submitted that what has been filed in the supplementary record is the

only copy of summons which the appellant was supplied with by the court

registry. Mindful of Rule 99 (1) of the Tanzania Court of Appeal Rules,

2009, (the Rules), we asked Mr. Mgoha why he did not file a

supplementary record to include the correct summons he is referring to.

However, the learned counsel was unable to rationalize his inaction.

We are going to determine this point here and now. We have no

doubt in concluding that the decision of the High Court was based on the

summons that has been presented by the appellant. The other summons

which is being referred to by the respondent's learned counsel remains a

myth since he did not make use of Rule 99 (1) of the Rules to file it by

way of a supplementary record. The said Rule provides: -

"99 - (1) Where a respondent is o f opinion that

the record o f appeal is defective or insufficient for
the purpose o f his case, he may lodge in the
appropriate registry eight copies of a
supplementary record o f appeal containing copies
o f any further documents or any additional parts
o f documents which are, in his opinion, required
for the proper determination of the
appeal, "(underlining ours)
 In this case, while counsel for the respondent would have us believe

that there is another summons and that it is required for the proper

determination of this appeal in his favour, he has played seek and hide

about it and denied us access to it. We shall therefore proceed with what

we have on record.

The second point that Mr. Mgoha argued forms the crux of the

matter. The learned counsel submitted that the summons at page 52 of

the record required the appellant to appear and also to file a WSD within

21 days. He appeared to us to be appreciating that the law provides for

issuance of "summons to appear"as one scenario and "summons to file

WSD" as another. However, he submitted, the summons in question

required the appellant to do both.

The learned counsel went on to submit that if the appellant's

counsel considered the summons defective or not to be in accordance

with the law, he should have desisted from filing a WSD and instead raise

an objection against the summons. When asked to comment on the

correctness of the statement by the High Court at page 128 of the

supplementary record regarding the summons that may be issued by the

High Court that it is a summons to appear, counsel stated that the

statement is incorrect.
 In a final rejoinder, Mr. Lugaiya submitted that the appellant acted

in accordance with the law as it then stood, that is, Order VIII Rule 1 (1)

of the CPC because that was the procedure obtaining in the High Court,

and that the matter had been scheduled for hearing.

When considered, all these arguments call for our interpretation of

the provisions of Order V Rule 1 (a) and (b) read together with Order VIII

Rule 1 (1) and (2) of the CPC. The former provision has hitherto been

amended, but as it stood then, it provided as follows: -

"V - 1. When a suit has been duly instituted, a summons

may be issued to the defendant at the time when
the suit is assigned to a specific judge or
magistrate pursuant to the provisions o f rule 3 o f
Order IV -

(a) to appear and answer the claim on a day

to be specified therein (hereinafter
referred to as a summons to appear); or
(b) if the suit is instituted in a court other than
the High Court and the court so determines
to file, in accordance with subrule (2) o f
rule 1 o f Order VIII, a written statement o f
defence to the claim (hereinafter referred
to as a summons to file a defence) ."
 With respect, whatever fine arguments presented by counsel, Order

V rule 1 (a) & (b) of the CPC creates two types of summonses that is;

First, asummons to appear which is only issued when a matter is filed at

the HighCourt. There is a corresponding duty to the defendant under

Order VIII rule I (1) of the CPC which provides: -

"VIII - (1) where a summons to appear has been

issued the defendant may, and if so
required by the Court aii, within seven
days before the first hearing, present a
written statement of his defence."

Second, a summons to file a defence with a corresponding duty to the

defendant under Order VIII rule 1 (2) of the CPC which provides: -

"VIII - (1) Where a summons to file a defence has

been issued and the defendant wishes to
defend the suit; he shall\ within twenty-
one days o f the date o f service o f the
summons upon him, present to the Court
a written statement o f his defence."

In view of the foregoing clear provisions of the law, there is no way

the High Court could have issued upon the appellant a hybrid summons

requiring him to appear and to present a WSD at the same time, as

suggested by Mr. Mgoha. The case of Tanzania Habours Authority v.

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Mohamed R. Mohamed [2003] T.L.R. 77 which Mr. Mgoha cited in his

submissions is an authority for the proposition that procedural laws should

be followed. If that be the case, and we agree it is, then there was no

justification for the learned High Court Judge invoking rules of practice to

replace the clear provisions of the law. The learned Judge stated at page

128 of the supplementary record: -

"It is true as argued by Mr. Umbula that the

summons issuable at the High Court is the
summons to appear under Order V rule 2 (a) o f
the CPC which gives a room to Order VIII1 (1) to
apply. However, the same law VIII rule 1(1) gives
a room for the Court to dictate otherwise by using
the words "ifso required by the court shall. "In the
circumstances at hand out o fpractice the Court so
required the defendant to file WSD within 21 days
from the date o f service .... the defendant was
supposed to comply with the direction and in case
he had reservation against use o f wrong
summons he could have formerly objected it
instead o f trying to act in what he sees or thinks
right suo motu in the name o f being served with
wrong summons." (emphasis ours)

With respect, we think the foregoing approach placed the appellant

between a rock and a hard surface and he should not have been punished

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for it. First of all, the provision of Order VIII rule 1 (1) of the CPC does

not impose a duty on the defendant to file a defence but only when

ordered by the High Court he may do so within seven days of service.

The words "ifso required by the court"60 not empower the Court to direct

the defendant to act outside the law. The other reason is that, the learned

Judge appears to have realized that there was an error in the summons,

yet she proceeded to fault the appellant in the manner he acted. Mr.

Mgoha submitted in support of the view taken by the trial Judge that the

appellant should have objected. We wonder how would that objection

have been communicated to the court. We think the principle that parties

should not be punished for errors committed by the court is sound in the

circumstances of this case. See the case of The Attorney General v.

Ahmad R. Yakuti and 2 Others, Civil Appeal No. 49 of 2004

(unreported).

We wish to make two observations before we conclude. One, the

provisions of Order V rule 1 (a) and (b) and Order VIII rule 1 (1) and (2)

of the CPC have since been amended, to provide for only one type of

summons, a summons to file a WSD within twenty-one days. Two, it is

settled law that courts should encourage matters to be determined on

merit, unless under exceptional circumstances, they cannot. We stated

so in the case of Independent Power Tanzania Limited v. Standard

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Charted Bank (Hong Kong) Limited, Civil Revision No.l of 2009

(unreported). In that case, after discussing the right to be heard as a

principle of natural justice enshrined in our Constitution, the Court went

on to say: -

"Ex post facto hearings, therefore, should be

avoided unless necessitated by exceptional
circumstances, as they are at times riddled with
prejudice apart from being a negation o f timely
and inexpensive justice, which we all strive for".

We also associate ourselves with the principle that justice is better

than speed. This has been stated in a number of the Court's decision such

as, Thomas Peter @ Chacha Marwa v. Republic, Criminal Appeal No.

322 of 2013; Zena Adam Abraham & 2 Others v. The Attorney

General & 6 Others, Consolidated Civil Revision No. 1, 3 & 4 of 2016

(both unreported) and; Independent Power Tanzania Limited v.

Standard Charted Bank (Hong Kong) Limited, (supra).

On the basis of what we have tried to show above, the learned

Judge's conclusion that the appellants" WSD had been filed out of time,

was erroneous because the law as it stood then allowed the defendant to

file it within seven days before the first hearing. Thus, we quash the ruling

of the High Court and set aside the order which directed the case to

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proceed for ex parte proof. We order the suit to proceed inter partes

before another Judge from the stage where the appellant had filed the

written statement of defence. The appeal is, thus, allowed.

Costs to abide by the outcome of the case.

DATED at ARUSHA this 11th day of February, 2021.

A. G. MWARIJA
JUSTICE OF APPEAL

I. P. KITUSI
JUSTICE OF APPEAL

R. J. KEREFU
JUSTICE OF APPEAL

The Judgment delivered this 12th day of February, 2021 in the presence

of Mr. Michael Lugaiya, learned counsel for the appellant and Mr. Robert

Mgoha, learned counsel for the Respondent, is hereby certified as a true

copy of the original.

Si
H. P. NDESAMBURO
DEPUTY REGISTRAR
COURT OF APPEAL

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