DOTTO MWANTENGULE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA

DISTRICT REGISTRY

AT DODOMA MISC. LAND APPLICATION NO. 15068 OF 2024 (C/F Land Applications No. 147 of 2020 before the District Land and Housing Tribunal for Dodoma) DOTTO HUSSEIN MWANTENGULE...................................................... APPLICANT

VERSUS AZIZA JUMA ULIMWENGU.......... ........... RESPONDENT

RULING Last order: 28th October, 2024 Ruling: 15th November, 2024 MASABO, J.:- This ruling is in respect of a two limbs preliminary objection raised by the respondent to the effect that one, the application contravenes Order IX, Rule 13(1) of the Civil Procedure Code and two, the application is I incompetent for being brought against the respondent in her personal capacity while she is the administratrix. The brief background of the matter is that the respondent in her capacity as the administratrix of the estate of the late Mwanaidi Ahmad Ulimwengu sued the applicant over ownership of Plot No. 52 Block 19 located at Chinangali West within Dodoma City Council. The applicant filed his written statement of defence before the trial tribunal but he thereafter vanished. Consequently, the matter was heard ex parte him. The ex parte judgment was delivered on 4th August 2023 in respondent's favour. The applicant took no steps to have it reversed. His first reaction was on 11th June 2024 when he filed the instant application Page 1 of4 beseeching this court to grant him leave for extension of time so that he could appeal against the ex parte judgment. After the application was served upon the respondent, she filed the counter affidavit accompanied by a notice of preliminary objection based on the two limbs stated above. Hearing of the preliminary objection was done in writing. The

submission in support of the preliminary objection was drawn and filed by Mr. Ayubu Sudayi whereas the submission opposing it was drawn and filed by Mr. Ezekeiel Amon Mwakapeje both learned counsels. . Mr. Sudayi submitted on the first limb only. He argued that the application is misconceived and incompetent because the remedy available to the applicant is to apply to have the exparte judgment set aside and not to file the instant application for an extension of time within which to appeal. The filing of the instant application, therefore, offends the provision of Order IX Rule 13(1) of the Civil Procedure Code, Cap 33 R.E.

2019. Thus, it should be dismissed. In reply, Mr. Mwakapeje submitted that, admittedly, Order IX Rule 13(1) allows a defendant against whom an ex parte decree has been issued to apply to set it aside. This remedy is, however, not the sole remedy available I to the applicant as it does not preclude the applicant from appealing against the ex parte judgment. Thus, by seeking a leave for an extension of time to appeal, the applicant has offended no law. Supporting his argument that ex i parte decrees are appealable, he cited the case of Dangote Industries Limited vs Warnercom (T) Limited, Civil Appeal No. 13 of 2021 [2022] 34 TanzLII where the Court of Appeal held that an ex parte judgment is Page 2 of4 appealable. The aggrieved party need not first seek an order setting it aside. It emphasized that the right to appeal is an automatic right. It is not dependent upon proceedings for an order to set aside the expa/tejudgment. Accordingly, this application is competent and should be entertained and determined on merits. In rejoinder, Mr. Sudayi reiterated his submissions in chief. He distinguished the case of Dangote Industries Limited (supra) and argued that in the instant application, the applicant was served and he filed his written statement of defence. I have dispassionately considered the submission by learned counsels. The issue to be determined is whether the preliminary

objection raised by the respondent has merits. The second limb of the objection was not argued thus I consider it to have been abandoned. On the first limb which I now have to determine, it has been argued that the application is untenable as it seeks an extension of time within which to pursue a non-existent remedy. It has been argued by Mr. Sudayi in its support that the leave is sought to enable the applicant to appeal against the ex parte judgment which is non appealable. Thus, it would be a waste of time to entertain and determine it as the leave will be ineffectual. Mr. Mwakapeje has argued in its opposition that Mr. Sudayi's argument is misconceived as the appeal is one of the remedies available to a party aggrieved by an ex parte decree. I entirely agree with him. As he has correctly submitted, setting aside the ex parte judgment is not the sole remedy to a person aggrieved by such judgment. Appeal is also available as a remedy. The Court of Appeal extensively dealt with this issue in the case of Dangote Industries Limited (supra) where Page 3 of4 it stated that:- An ex-parte judgment is appealable under section 70 (2) of the CPC which provides that "an appeal may be from an original decree passed ex-parte". Section 70 (2) of the CPC, unambiguous as it is, does not impose any condition for appealing against an ex-parte judgment. It is a cardinal principle of statutory

interpretation that, where the wording of a statue is clear and unambiguous, it does not need interpretation. In our considered opinion therefore, as the provision of section 70 (2) of the CPC clearly and unambiguously provides for an automatic right of appeal against an ex-parte judgment, it is not for the court to narrow down its scope by implying that the legislature intended that such an appeal would be conditional upon there being an attempt to set the ex parte judgment aside. We can thus hold without any hesitation that, the right to appeal against an ex parte decree is automatic and does not depend upon there being a prior proceeding to set aside the ex parte judgment. That being the law I find the preliminary objection to have no merits. Accordingly, it fails and it is overruled with costs. It is so ordered. DATED at DODOMA this day of 15th November 2024. Page 4 of 4