JILALA V ADAM BAYA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 4559 OF 2024 JILALA LUGALILA MAKWALE.................................................... APPELLANT VERSUS ADAMU ELIAS BAYA.................................................................. RESPONDENT JUDGMENT 13/8/2024 & 30/9/2024 ROBERT, J:- This appeal emanates from a default judgment and decree delivered by the District Land and Housing Tribunal (DLHT) for Mwanza in Land Application No. 255 of 2023 on 30th January 2024. The appellant, Jilala Lugalila Makwale, is dissatisfied with the decision of the DLHT, which entered a default judgment against him due to his failure to file a written statement of defense (WSD) in response to the respondent's claims. The facts leading to this appeal are straightforward. The parties first appeared before the DLHT on 25th October 2023, during which the Tribunal directed the appellant to file his WSD within 21 days. When the matter came up on 22nd November 2023, the respondent informed the Tribunal that the i appellant had failed to comply with the order. Although the DLHT directed the appellant to file the WSD, it did not set a specific timeframe for doing so. Subsequently, on 13th December 2023, the appellant failed to appear, and the respondent reiterated that the WSD had not been filed. The Tribunal adjourned the matter and ordered a summons to be issued to the appellant. On 16th January 2024, both parties were present, and the respondent moved the Tribunal to proceed under Order VIII Rule 14(1) of the Civil Procedure Code (CPC), which governs default judgments. The appellant requested an extension of time to file his WSD, but the Tribunal declined the request, citing prior delays. The DLHT then set the matter for judgment, which was delivered on 30th January 2024, entering a default judgment against the appellant. Aggrieved by the decision of the DLHT, The appellant preferred this appeal raising two grounds of appeal as follows: 1. That the trial Chairman erred in law and fact by delivering a default judgment without affording the appellant the right to be heard. 2. That the trial Chairman erred in law by delivering a default judgment contrary to the requirements of Order VIII Rule 14 of the CPC. 2 The appellant's counsel, Mr. Mwengela Ernest John, argued that the trial Chairman violated the principles of natural justice by failing to grant the appellant an opportunity to be heard, particularly on 16th January 2024, when the request for an extension of time to file the WSD was denied without adequate consideration. Counsel contended that this omission amounted to a denial of the appellant's right to be heard. On the second ground of appeal, counsel argued that the Tribunal did not adhere to the procedural requirements of Order VIII Rule 14 of the CPC, which mandates that after a failure to file a WSD, the court must fix a date for the plaintiff's evidence to be adduced ex parte. Counsel maintained that the default judgment was therefore entered unlawfully, as no such date for ex parte proof was set. In response, Counsel for the respondent, Mr. Joseph J. Mange, counters the appellant's claims by stating that the appellant himself denied his right to be heard by failing to comply with the orders of the tribunal to file the WSD within the prescribed period. He argues that the default judgment was valid since the appellant did not comply with the tribunal's orders. 3 Regarding the second ground, the counsel contends that the default judgment was properly entered as the tribunal followed the necessary legal procedures. He argues that the default judgment is a legitimate outcome given the appellant's failure to engage with the tribunal as required. Before addressing the substantive grounds of appeal, this Court deemed it necessary to consider whether the appellant could appeal against the default judgment without first seeking to set it aside in the Tribunal. Having requested further submissions on this issue, the Court considered the arguments presented by both parties The appellant's counsel, Mr. Baraka Elly Nicholas, submitted that the law under Section 74 and Order XL Rule 1(b) of the CPC allows for an appeal against a default judgment without the necessity of first applying to set it aside. Counsel further contended that Order VIII Rule 15 of the CPC, which permits setting aside a default judgment, applies only where the appellant seeks to explain the reasons for failing to file a WSD. The respondent's counsel, however, argued that an application to set aside the judgment should have been made under Order VIII Rule 15, citing the decision in Dangote Industries Ltd Tanzania vs Warnercom (T) Limited, 4 Civil Appeal No. 13 of 2021 (unreported), which, according to him, established that a party aggrieved by an ex parte judgment must first seek to set it aside before appealing. Upon a thorough examination of the submissions from both parties, this Court holds that where a defendant seeks to challenge the merits of a default judgment, the right to appeal is automatic and is not contingent upon first instituting an application to set aside the default judgment. However, if the defendant seeks to challenge both the ex parte order and the merits of the default judgment, they must first pursue an application to set aside the ex parte order before addressing the merits of the judgment. This legal principle is firmly anchored within the framework of the Civil Procedure Code, Cap. 33 R.E. 2019 (the CPC). In particular, Order VIII Rule 15 of the CPC stipulates that a default judgment may be set aside upon the application of the aggrieved party, provided that the party demonstrates good cause for their failure to file a Written Statement of Defence (WSD). However, Order XL Rule 1(b) of the CPC provides that a judgment pronounced under Order VIII Rule 14—which pertains to a default judgment—against a party is appealable as a matter of right. 5 This legal position is further clarified by the decision of the Court of Appeal in Dangote Industries Ltd Tanzania vs Warnercom (T) Limited, Civil Appeal No. 13 of 2021, where the Court affirmed that the appealability of an ex parte judgment, and by extension a default judgment, does not require the defendant to first attempt to set it aside. In the present case, the appellant's grounds of appeal raise substantive legal issues, and as such, the appellant is entitled to directly appeal to this Court. The procedural irregularities alleged in the trial proceedings necessitate an appeal addressing these substantial legal issues, rather than an application to set aside the default judgment on the basis that the appellant had good cause for failing to file a WSD. In light of the foregoing, this Court will proceed to assess the appeal based on the merits of the arguments advanced, particularly with respect to the two grounds of appeal presented by the appellant. Starting with the first ground, the appellant contends that he was denied the right to be heard during the proceedings at the DLHT. However, upon review of the proceedings conducted on January 16, 2024, it is evident that both parties were present before the tribunal. During this session, the 6 respondent moved the DLHT to proceed with the matter under Order VIII Rule 14(1) of the Civil Procedure Code (CPC). Significantly, the DLHT provided the appellant with an opportunity to address the tribunal regarding this motion. The appellant utilized this opportunity to request an extension of time to file his WSD. However, the DLHT, after considering the appellant's request, declined to grant the extension. The tribunal's refusal was premised on the finding that the appellant had previously been allotted additional time to file his WSD but had failed to comply with the stipulated timeline. The principle of audi alteram partem (the right to be heard) necessitates that a party is afforded an opportunity to present their case before any adverse decision is made. In this instance, the DLHT not only allowed the appellant to present his request but also made a determination based on prior conduct and compliance. The tribunal's decision to refuse the extension does not equate to a denial of the right to be heard; rather, it reflects the tribunal's adherence to procedural rules and its obligation to manage the proceedings effectively. In light of the above analysis, this Court finds that the appellant was afforded the right to be heard, and the DLHT's refusal to grant the extension was a proper exercise of discretion within its jurisdiction. Therefore, this ground of appeal lacks merit and is therefore dismissed. In the second ground of appeal, the appellant contends that the District Land and Housing Tribunal (DLHT) erred in law and in fact by entering a default judgment against him without adhering to the mandatory procedural requirements under Order VIII Rule 14 of the Civil Procedure Code, Cap. 33 R.E. 2019. The appellant argues that the trial tribunal failed to allow the respondent to adduce evidence in support of his claims before entering the default judgment, contrary to established legal principles. The learned counsel for the appellant, Mr. Baraka Elly Nicholas, submitted that under Order VIII Rule 14 of the CPC, when a defendant fails to file a written statement of defense (WSD), the trial court is required to proceed by allowing the plaintiff (or applicant) to adduce evidence ex parte to prove their case. Counsel argued that in the present case, the DLHT bypassed this procedural requirement and directly entered judgment in favor of the respondent without affording him an opportunity to prove his claims. 8 This, counsel contended, constituted a grave procedural irregularity, warranting the setting aside of the default judgment. In response, the learned counsel for the respondent, Mr. Joseph Mange, opposed the appellant's arguments. He contended that the trial tribunal's judgment was properly entered in accordance with Order VIII Rule 14 of the CPC, as the appellant had failed to file his WSD within the prescribed period. Counsel argued that under the said rule, where a defendant defaults in filing a WSD, the court is entitled to pronounce judgment against the defendant without necessarily requiring the plaintiff to adduce evidence. Counsel therefore prayed that this court dismiss the appeal and uphold the decision of the DLHT. The central issue for determination under this ground of appeal is whether the District Land and Housing Tribunal erred in law and in fact by entering a default judgment against the appellant without following the procedural requirements under Order VIII Rule 14 of the Civil Procedure Code. 9 Upon consideration of the submissions of both parties, this Court finds that the Tribunal erred in its procedure. The essence of a default judgment is predicated upon the failure of a party to file a WSD, as provided under Order VIII Rule 14 of the CPC. However, the rule also mandates that the court should fix a date for ex parte proof where the plaintiff is required to present evidence supporting the claims made in the pleadings. The failure of the Tribunal to fix such a date for the respondent to prove his case ex parte amounts to a procedural irregularity. It is important to note that although the appellant was not entitled to a full hearing due to his failure to file a WSD, the Tribunal still had the duty to comply with the requirement of ex parte proof. The purpose of fixing a date for ex parte proof is to ensure that the plaintiff's claims are substantiated by evidence before the court, even in the absence of the defendant. This stage serves to protect the integrity of the judicial process and ensures that a judgment is based on valid evidence rather than merely on the default of the defendant. In this case, the Tribunal bypassed the ex parte proof stage and proceeded directly to enter judgment. This procedural lapse is significant as it deprived the respondent of the opportunity to substantiate his claims and 10 the appellant of the procedural safeguard that ensures the judgment is based on credible evidence. Thus, the appellant's complaint is valid, not in terms of the right to be heard as it traditionally applies, but rather in terms of the Tribunal's failure to follow the correct procedural steps in issuing a default judgment. In light of the foregoing, this Court finds that the second ground of appeal has merit. The Tribunal's default judgment is vitiated by its failure to fix a date for ex parte proof, as required under Order VIII Rule 14(1) of the CPC. In view of the foregoing, the appeal is partly allowed. The default judgment entered by the District Land and Housing Tribunal for Mwanza in Land Application No. 255 of 2023 is hereby quashed. The case is remitted to the DLHT for Mwanza for proper proceedings, including the fixing of a date for ex parte proof by the respondent. It is so ordered. ii