NGEREZA TWO scnd

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM-SUB REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 10869 OF 2024 (Originating from exparte judgement in High Court Land Case No. 12 of2021 (Hon. Ebrahim, J) and Misc. Civil Application No. 5785 of2024 (B. Phillip, J) both of Dar es Salaam Sub - Registry) BEN M. NGEREZA.............................................. APPLICANT VERSUS JAMES MARWA MAHANDO............................... RESPONDENT RULING S.M. MAGHIMBI, J: In this matter, the applicant herein has moved the court under the provisions of Order IX, Rule 9 and Section 95 of the Civil Procedure Code, Cap. 33 R.E 2019- seeking for the orders of this court to set aside an ex­ parte judgment in Land Case No. 12 of 2021 dated 14th July, 2023. The applicant further prays for costs of the application and any other relief(s) as the court may deem fit and just to grant. The instantaneous application is by a Chamber Summons supported by an Affidavit of one Henry Kitambwa, learned advocate representing the applicant, dated 03rd day of May, 2024. i On the 03rd day of June, 2024, the Respondent filed before this Court a Notice of Preliminary Objection on points of law that: i. That the Application has been filed out of time contrary to Item No. 5 of Part III of the Schedule of the Law of Limitation Act, Cap 89 RE 2019. ii. That the Affidavit of Mr. Abraham Hamza SenguJ/\n support of Application is incurably defective for containing defective Jurat of Attestation. iii. The Application is incompetent for violating provision of Order XLIII Rule 2 of the Civil Procedure Code, Cap 33 RE 2019. Disposal of the preliminary objection was by way of written submissions. The respondent's submissions in support of the objection were drawn and filed by Mr. Charles Lugaila, learned advocate while the applicant's submission were drawn and filed by Mr. Abraham Senguji, learned counsel. Starting with the first ground of objection that the Application has been filed out of time contrary to Item No. 5 of Part III of the Schedule of the Law of Limitation Act, Cap 89 RE 2019. It was Mr. Lugaila's submission that the Ex- parte decision that is intended to be set aside was delivered by Her Ladyship Hon. Ebrahim, J on the 14th day of July, 2023 while the present Application 2 to set aside the said decision was filed on the 13th May, 2024 , 10 Months after the said decision was delivered. He then argued that according to Item No. 5 of Part III of the Law of Limitation Act, Cap 89, the time limit to file an application to set aside Ex-parte decision is 30-days from the date the said decision was delivered. Mr. Lugaila asserted that there is nowhere in the Applicant's pleadings were it was pleaded that the Applicant had applied for and was granted extension of time to file the present Application out of time. As a matter of fact, he submitted that, the Respondent knows nothing of such order for extension of time to apply to set aside the said ex-parte decision because if there was one, then it would have been attached to this Application. Regarding the first point of objection, he concluded that it is safe to aver that while filing the Present Application, the Applicant's side was quite aware when the Judgment was delivered {14h July, 2023) and therefore, they ought to have known that the time to file the present Application had elapsed; thus, they should apply for extension of time. That in the absence of the said order for extension of time, the current matter becomes time barred and the same should be dismissed under Section 3(1) of the Law of Limitation Act. 3 In reply, Mr. Senguji contended that the Learned Counsel misconceived the Application and his Preliminary Objection is uncalled for. His reasons were that the instant Application to set aside the exparte judgment was not filed out of time. That the record clearly shows that on 14th day of July 2023, this Honourable Court delivered the purported judgment in Land Case No. 12 of 2021 as the actual exparte judgment which was/ts cited as Land Case No. 12 of 2020. He submitted that there was an error in the citation number of the Case which caused the purported exparte judgment inexecutable. He further elaborated that the Applicant applied for rectification of the errors and the decision was delivered on 15th April 2024. He maintained that sometimes in October, 2023 the Applicant filed in this court, Misc. Civil Application No. 623 of 2023 seeking extension of time within which to file an application to set aside the said exparte judgment in Land Case No. 12 of 2021. He argued that, in the course of hearing of the aforestated application, it was discovered that the purported exparte judgment in Land Case No. 12 of 2021 has apparent errors which clearly portrayed that there was no judgment in Land Case No. 12 of 2021 as the ex-parte judgment before the Court was of Land Case No. 12 of 2020, not Land Case No. 12 of 2021 which was the actual Case. 4 To ponder the matter, he went on explaining about the procedure to rectify the error in the judgment by submitting that sometimes in March 2024, the Applicant filed Misc. Application No. 5785 of 2024 which was brought under section 96 of the Civil Procedure Code, Cap 33 R.E. 2019 seeking correction of errors apparent on the face of the record-and the same was granted. In that circumstance, he argued, the ex-parte Judgment in Land Case No. 12 of 2021 was delivered by this Honouralbe Court on 24th April 2024, when the apparent errors were rectified and gave birth the ex-parte judgment in Land Case No. 12 of 2021. It is his submission that this Application was filed on 13th May 2024 well within 30 days prescribed by the Law of Limitation. He added that it was filed on the 19th day since the ex- parte judgment in Land Case No. 12 of 2021 was born and started to operate against the Applicant. He stated that, before 24th April, 2024, there was no judgment in Land Case No. 12 of 2021 as that judgment was un executable. He summed up that the instant Application was filed within the prescribed as inclined under the Law of Limitation Act, Cap. 89 R.E. 2019, hence, there was no need to apply for extension of time in a Case where its judgment started to legally operate on 24th April 2024 and the Application was filed on 13th May 2024 within the prescribed time. 5 In retort Mr. Lugaila reiterated his submission In-chief. He then added that the assertion that because the typed copy of the Judgment had typos in the case number therefore there was no judgment. He asseverated that it is not only absurd, but also a laughable assertion that the Respondent's side believed that the Applicant's side has chosen to employ with an intention to make a fool out of everyone involved. He then argued that the said typos in the copy of the Judgment does not take away the fact that, the said decision in Land Case No. 12 of 2021 was delivered by the Court on 14th July, 2023 and the proof of that is evidenced in the Applicant's own pleadings as follows. He pointed out to the Affidavit of Mr. Henry Kitambwa dated 3rd May, 2024 in support of the Application at paragraph 33 to substantiate the same. That in Misc. Civil Application No. 5785 of 2024 the orders sought in the chamber Application were that this honourable Court be pleased to correct errors appearing on the ex-parte Judgment in Land Case No. 12 of 2021 delivered on the 14th July, 2023. That in the ruling dated 24th April, 2024 her Ladyship Hon. Phillip, J held this; "Hi. This Court Order shall be read together with ex-parte Judgment delivered by this Court (Hon. Ebrahim, J) on the 14th July, 2023'' 6 He then submitted that the record from the court's registry (Online System) shows Land Case No. 12 of 2021 (Ref No. 20230220000480682) was decided on the 14th July, 2023. He then emphasized that the Respondent's side is in aware because despite ali the undeniable facts which are found in the Applicant's own pleadings, the Applicant's counsel would still insist that there was no Judgment on the 14th July, 2023. He also pin pointed out that the Applicant's long reply submission is not backed up by any legal position (Statute or Case law) that could make sense of the senseless submission brought by the Applicant's side. He posed a few question in rejoinder challenging the applicant's reason. First he questioned if there was/is no judgment delivered on the 14th July, 2023, why he filed Misc. Civil Application No. 623 of 2023 on the 31st October, 2023 seeking for extension of time to file an Application to set aside ex- parte decision in Land Case No. 12 of 2021?.Further to that, why he filed Misc. Application No. 5785 of 2024 seeking leave to rectify error in case number for the exparte Judgment in Land Case No. 12 of 2021 delivered on the 14th July, 2023 and lastly why in the present Application he attached the same Judgment dated 14th July, 2023 and not attaching the Judgment for 7 Land Case No. 12 of 2021 bearing any date other than that of 14th July, 2023? In answer to those questions, it was Mr. Lugaila's submission that the said Rhetorical questions can only be answered contrary to the Applicant's misconceived assertion because it shows, the Applicant's side clearly knew that the Judgment for Land Case No. 12 of 2021 was delivered on the 14th July, 2023, but ignored that fact and wrongfully chose to file the present Application without seeking leave of the Court for extension of time first. He reiterated his argument that the filing of this Application without firstly seeking extension of time, makes it to be time barred and thus deserve no court's attention but to dismiss it under Section 3 of the Law of Limitation Act, Cap 89 RE 2019. Having heard the parties' submissions, I find a need that in determining the merits of the objection, for the interest of those who might innocently be misled by Mr. Senguji's arguments, that I had to rectify his argument which he raised earlier that the judgment in Land Case No. 12/2021 started to legally operate on 24th April 2024 when the ruling in Misc. Application No. 5785 of 2024 was delivered. It is more so interesting because, as submitted by Mr. Lugaila, he did not cite any law or precedent that the date of delivery 8 of judgment would start to operate when the errors were corrected. In the absence of any legal backup, his submissions remains his wishful argument in pursuit for convenience. To begin with, the provisions of Order XX Rule 1 and 3 of the CPC are relevant. They provide: 1. The court, after the case has been heard, shall pronounce judgment in open court, either at once or on some future day, of which due notice shall be given to the parties or their advocates. 2. ............NA 3. The judgment shall be written by, or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall be dated and signed by such presiding judge or magistrate as of the date on which it is pronounced in open court and, when once signed, shall not afterwards be altered or added to, save as provided by section 96 or on review. I had to reproduce the provisions hereof in order to elaborate that a judgment of the court shall be pronounced in open court either on the date 9 that the hearing has closed or on a future date. The important thing is that parties should be given a notice on the delivery of the judgment. In our records, much as the affidavit of the applicant attempted to impress the court on how his advocate was sick; there was no explanation as to why the other advocate (in this case Mr. Senguji was allegedly giving direction to the defendant's advocate then on what to do) could not appear in court. The records further show that upon closure of hearing the court scheduled a date for judgment. Therefore, the delivery of judgment remained on the date that the same was delivered by the court. Hence for the purpose of computation of the period of time, that is the date when it started to accrue for any further actions. Then there is another argument, which Mr. Lugalila called absurd, that the judgment became operational after the errors were rectified. This is where the provisions of Order XX, Rule 3 of the CPC come in. The Rule is crystal clear that a judgment shall be dated and signed by the presiding judge or magistrate as of the date on which it is pronounced in open court and, when once signed, shall not afterwards be altered or added to, save as provided by section 96 of the CPC or on review. For that reason, the operational effect of the judgment starts when it is signed as of the day to 10 which it was pronounced in court and not otherwise. The said Rule further prohibits any alteration or addition to the judgment save as stipulated by section 96 of the CPC or on review. It would appear that, this is the Section upon which the Misc/. Land Application was lodged in court and that is what Mr. Senguji wishes for the court to account into a stop or halt to the hands of time in computation of the period of limitation. With respect to the learned Counsel, the provisions are clear that alteration or addition to the judgment after it is pronounced can only be done under Section 96 of the CPC or by way of review and there is no place in that Order or any part of the CPC where it so provided that an application under Section 96 of the CPC of review will stop computation of time. Neither did I see any law or precedent cited by Mr. Senguji to support this argument. So to say, this line of argument is absurd and is hereby disregarded. Now it is time to see whether the application beforehand is time barred. It is undisputed that the ex-parte judgment in Land Case No. 12/2021 was delivered on the 14th day of July, 2023. In computing time for challenging an ex-parte judgment, in the case that it was delivered in the absence of the defendant, the court takes into consideration the time when the applicant became aware of the existence of the ex-parte judgment; not ii necessarily to exclude that time; but in consideration of the reasons for the delay in challenging the judgment. In the case of Bashir Ally vs Anyeqile Andendekisye Mwamaluka & Others (Civil Appeal No, 49 of 2021) [20241 TZCA 47 (16 February 2024) TanzLII the Court also considered the time when the party became aware of the judgment to the date of filing an application for extension of time. It is worth noting that although in this case the applicant is moving the court to set aside an ex-parte judgment and not extending time, the principle applicable entails that action need to be accounted for from the date the applicant became aware of the impugned judgment and not otherwise. In this cited case the court hold Court observed that: "jve find without difficulties, as the High Court Judge rightly did, that the appellant miserably failed to account for each day of the delay between 15/03/2018, when he became aware of the judgment upon perusing the records of the DLHT and 26/10/2018, when he lodged the application for extension of time" In the case at hand, this is found in para 33 of the affidavit in support of Chamber Summons, the affidavit of Mr. Henry Kitambwa dated 03rd day of 12 May, 2024. For the purpose of this ruling, the said para is produced as hereunder: "5?. That, we were later informed that the Judgment was delivered on the 14* day of July, 2023 and having received the information on the 31st July, 2023, we submitted a letter to the Deputy Registrar-Dar-es-saiaam District Registry of the High Court requesting the supply of certified copies of the proceedings, judgment, decree for the purpose of applying to set aside the exparte judgment." Under para 35 the applicant admits that they were supplied with the requisite documents and were able to collect them on 04th October, 2023. At this point, since the time of 30 days had lapsed, the applicant was under an obligation to apply for orders extending time to set aside the ex-parte judgment. It looks to me that at that time, the applicant had that wisdom and actually lodged a Misc. Application No. 623 of 2023 on the 31st October, 2023 seeking for extension of time to file an application to set aside ex- parte decision in Land Case No. 12 of 2021. In his submissions, Mr. Senguji attempted to convince the court the matter could not be concluded because in the course of hearing Misc. Application No. 623 of 2023 it was discovered 13 that the purported ex-parte judgment in Land Case No. 12 of 2021 has apparent errors which clearly portrayed that there was no judgment in Land Case No. 12 of 2021. The exparte judgment before the Court was of Land Case No. 12 of 2020, not Land Case No. 12 of 2021 which was the actual Case. He did not however attach any order of the court to show the fate of the said Misc. Application No. 623 of 2023, it just disappeared in the air and the next recap of time that was explained was in March 2024 when the Applicant filed Misc. Application No. 5785 of 2024 under section 96 of the Civil Procedure Code, Cap 33 R.E. 2019 seeking correction of errors apparent on the face of the record. In his comfort zone, the applicant is seeking a pause in computation of time and comes up with their own law that the judgment became operational when ruling in Misc Application No. 5785 of 2024 was delivered in April. This is an absurd a bizarre argument not backed up by any law or precedent, so, unfounded. Therefore Consequently, the hands of time for the applicant started when the judgment was delivered or at least later when they became aware of the existence of the judgment. One may even argue that the time started running when they were supplied with copies of the requisite documents to take necessary steps on 04th October, 2023. 14 Under the provisions of Item No. 5 of Part III of the Schedule to the Law of Limitation Act, the application ought to have been filed within thirty (30) days. In all the scenarios I have stated above, this application was lodged after a lapse of at least 7 months, hence, it is conclusive that the application was filed out of the prescribed time. That said, the first point of objection is hereby sustained. Since the objection was concerning time limitation and having found that the application was lodged out of time, I am no longer clothed with jurisdiction to determine the remaining point of the preliminary objection. In consequence thereto, pursuant to the provisions of Section 3 of the Law of Limitation Act, this application is hereby dismissed with costs awarded to the respondent. 15