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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISC. LAND APPLICATION NO. 18796 OF 2024 (Originating from Land Appeal No. 6 of 2021 of High Court of Tanzania, Mbeya Registry) ANDENDEKISYE MWAKANSOPE…………………………....1ST APPLICANT EDWARD MWAKOGA………………………………………….2ND APPLICANT VERSUS CLEMENCE JULIUS MWAKOGA (Suing as Administrator of Julius Mwakoga)…………………………………..……….RESPONDENT RULING Date: 1 November 2024 & 9 January 2025 SINDA, J.: This application is arising from Land Appeal No. 6 of 2021 which was heard ex-parte against the applicants. The judgment was delivered on 22 March 2023. The applicants claimed that they were not served with the summons to appear to defend their case in Land Appeal No. 6 of 2021 at High Court of Tanzania and the summons to hear the ex parte Judgment. They prayed for the following orders: 1 i. This Court be pleased to set aside Ex-Parte Judgment and Decree dated 22 March 2023 in Land Appeal No. 6 of 2021 and order the matter be heard inter-parties. ii. That Costs to be abide the event. iii. Any other relief(s) the Court may deem fit to grant. At the hearing of the application, the applicant was represented by advocate Barnaba Pomboma while the respondent was represented by Ms. Pamela Kalala, learned counsel. The application was argued by way of written submissions. The applicants prayed to adopt the chamber summons together with the affidavit to form part of this submission. The applicants further prayed this court to set aside the exparte decision delivered on 22 March 2023 before Hon. D.P. Ngunyale, J. on account that it is tainted with the following illegalities: firstly, the first applicant was not accorded the right to be heard, secondly, the applicants were not informed of the date of the ex-parte judgment, and lastly, the respondent did not prove the matter as required by law. On the right to be heard, the applicants argued that it is a cardinal principle of natural justice that a person should not be condemned 2 unheard as provided under article 13 (6) (a) of the Constitutional of the United Republic of Tanzania, 1977 as amended (the Constitution). The applicants asserted that they were condemned unheard because the appellate court decided to proceed with the hearing of the appeal without first assuring itself that the applicants had been properly served with a summons to appear and defend the case. The applicants contended that it is on record of the appellate court proceedings at page twelve (12) that on 16 February 2023 that the respondent herein prayed to be heard in the absence of the applicants herein, and the Court ruled that the matter was to be heard ex-parte. According to the records, no steps were taken by the court to assure itself that the applicants were properly informed of the existence of the cases. He referred to Rule 14 of Order XXXIX of the Civil Procedure Code, Cap 33 R.E, 2019 (the CPC) and the case of Mbeya-Rukwa Autoparts and Transport Limited Vs Jestina George Mwakyoma [2003] T.L.R 251 where the Court expressed the position of the law with respect to the right to be heard as a fundamental constitutional right. He also referred to the cases of Rajabu Yusuph Kirumbi, the Administrator of the Estate of the late Mtakuja Kondo and 3 others vs Wendo 3 Maliki and 2 Others CAT, Civil Appeal No 137 of 2021(unreported) which cited the case of Abbas sherally and Another vs Abdul Sultan Haji Mohamed Fazalboy Civil Application No. 33 of 2002 (unreported) to cement his argument. He argued that it was unfair for this court to make a decision without considering or taking evidence from the applicants. The applicants prayed for the judgment to be nullified with costs. On the second ground that the applicants were not informed of the date of the ex-parte judgement, he submitted that the records are clear on page 13 of the proceedings of this Honourable Court of 2 March 2023 where this Court set the date for judgment to be on 22 March 2023 without making an order that the applicants herein be informed about the date of Judgement The applicants argued that the requirement of informing the party about the date of judgment is well enshrined under Order XX Rule 1 of the CPC, and further cemented by the case of Cosmas Construction Co. Ltd Vs Arrow Garments Ltd (1992) TLR 127 the Court of Appeal. He stated that in accordance with the above authorities, it is imperative that even when the proceeding was conducted ex-parte, the court has a duty to give notice to the excluded party to attend on the date of 4 judgment. He also referred to the case of Awadh Kajas vs. Mayfair Investment, Civil Application No. 281/17 of 1017 (unreported). On the last ground, that this honorable court be pleased to set aside the judgment on the account that the respondent did not prove the matter as required, the applicants submitted that it is the requirement in civil cases that whoever alleges ownership of land has a duty to establish and prove it on the balance of probabilities, this is the position of law in terms of Sections section 3(2), 110 and 111 of Evidence Act, Cap 6, R.E 2022 (the Evidence Act) . He found that the respondent did not prove the case to the required standard. In reply the respondent prayed to adopt the content of affidavit to form part of her submission. On the point that the application was not accorded the right to be heard, she submitted that it is not true that the application was not accorded the right to be heard because the case was fixed to proceed for ex-parte hearing when the applicants refused to receive the summons. She referred to page 8 of the trial court proceedings dated 14 July 2022 where the appellant was ordered to file a written submission in support of the appeal within 14 days from that date. 5 She submitted that it is trite law that the court record is a serious document. It should not be lightly impeached. She referred to the case of Halphan Sudi vs. Abieza Chichili, Civil Reference No. 11 of 1996 (1998)TZCA 7 (9 April 1998). She stated that the case cited by the applicants should be ignored because its facts are inconsistent with the point in discussion and are different from what appeared on the face of the record. On the second illegality that the applicants were not informed of the date of the ex-parte judgment. She submitted that after perusal of court proceedings, she concurred that there were no summons issued to inform the respondents about the date of ex-parte judgment. She submitted that there was no evidence adduced to show that the applicants were served. She added that there was no order to the extent that the applicants were informed about the date of Judgment. Therefore, it is inconsistent to Order XX, Rule 1 of the CPC. Therefore, the second point of law renders the whole ex-parte Judgment being invalid. On the third illegality, she submitted that the same cannot be said to be an illegality because evidence is a matter of fact. She finds that the respondent met the requirements of Section 3(2) (b) of the Evidence Act. 6 I have gone through the court records and submissions filed by the parties. I find that the application can be disposed of under one issue of; Whether the procedure of serving summons to the applicants was adheared during hearing and before delivering of ex-parte judgment. The applicants complained that they were not notified to attend the Land Appeal No. 6 of 2023 during the hearing. The right to be heard is one of the fundamental rights that promote the principles of natural justice. Failure to adhere to this principle vitiates the decision of the court. In the case of Rajabu Yusufu Kirumbi and Others vs. Wendo Mlaki & Others (Supra), the court stated that “It is the Cardinal Principle of natural justice that a person should not be condemned unheard, fair procedure demand that both party should be heard. further the decision reached in violation of the principle of natural justice is void and is of no effect” I have gone through the proceedings of the appellate court and find that the respondent prayed for the case to proceed ex-parte because the applicant refused to accept and sign the summons and the court granted the prayer. The records did not reveal that there was no any proof from the process server that the applicant refused the summons by way of an 7 affidavit. In that regard, I find that the procedure of serving summons to the applicant was not followed. On the second complaint, that the applicant was not served with the summons before pronouncing ex-parte judgment on the case that was heard against him. In the case of Cosmas Construction Co. Ltd vs. Arrow Garments Ltd (supra) the Court of appeal stated that “Dr Lamwai has submitted before me that the high Court had no obligation to notify the applicant of the date when judgement was going to be delivered. With respect, that view cannot be correct. A party who fails to enter appearance disables himself from participating when the proceedings are consequently ex-parte; but that is the farthest extent he suffers. Although the matter is therefore considered without any input by him, he is entitled to know the final outcome. He has to be told when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may follow. In the present matter the applicant was not present and there is no proof with a copy of notice of judgment dated 7th October 1991” In this case at hand, as correctly submitted by the applicant and conceded by the respondent advocates, the records did not reveal that the applicants were notified on the date of ex-parte judgment against them. In the light of the above authority, I find this to be a serious 8 irregularity. Hence, I set aside both the proceedings and the ex-parte judgment of the appellate court in Land Appeal No. 6 of 2021. I order the appeal to be heard afresh in the presence of both parties and in compliance with the above procedure of notifying the other party as required by law. The right to appeal is explained. DATED at MBEYA on this 9 day of January 2025. A. A. SINDA JUDGE 9