Mapigano J:
OCS Company has brought an application for review of the order dated 27 September 1996 passing judgment against it on the I
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
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
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
