Jonester Treseas Rwabigendela Jonester Jones vs Elizabeth Nelson Ngaiza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB — REGISTRY AT SUMBAWANGA CIVIL APPEAL NO. 4292 OF 2024 (Originating from Probate and Administration Cause No. 21 of 2022 Mpanda District Court) JONESTER TRASEAS RWABIGENDELA© JONESTER JONES......... APPELLANT VERSUS ELIZABETH NELSON NGAIZA.............. ..RESPONDENT RULING MWENEMPAZI, J This ruling is in respect of the preliminary objection raised by the Respondent in the hearing of this appeal. The Appellant has filed this appeal against the decision of the District Court of Mpanda in Probate and Administration Cause No. 21 of 2022. However, the Respondent raised preliminary objection in the hearing of the appeal on the following grounds; 1. That, the appeal is not maintainable for being filed out of time and contrary to this Honourable court order dated 11/01/2024 in Wise. Civil Application No. 1/2023. 2. That, the appeal is incompetent for failure to sue the respondent in her representative capacity, also the parties appearing in the original pleadings are i different from those which appears in the judiciary online registered case which is a fatal irregularity. 3. That, the appeal is incompetent for failure to set aside the exparte - judgment first, as the appellant is challenging even the order ofproceeding exparte. The preliminary objection was argued by way of written submissions. When the objection was called for hearing, the Respondent had legal services of Mr. Lawrence John, advocate while the Appellant was unrepresented. Submitting in support of the first preliminary objection, the Respondent contended that the application has been belatedly filed by the applicant, the counsel submitted that as per the records, the appeal was filed on 1/3/2024 while this Court before Hon. Mrisha, J extended only 30 days for filing the appeal in Misc. Civil Application No.1/2023. Learned Counsel submitted that from the date when the order was pronounced on 11/1/2024, thirty days would expire on 11/2/2024, thus the filing of the appeal on 1/3/2024 makes the same to be time barred. Mr. Lawrence John maintained that under Section 3(1) of the Law of Limitation Act, Cap 89 R.E 2019 states that any matter filed out of time has to be dismissed. Further, Mr. Lawrence John contended that this 2 application as the judiciary system reflects on https: //porta I.judiciary.qo.tz/ that the application was filed on 1/3/2024 which was out of time. Submitting on the 2nd point of preliminary objection, Mr. Lawrence John submitted that it is trite law that parties to the proceedings must be referred in their requisite capacities, in this case there is no dispute that the respondent was the administrator of the estates of the Late Jones: Josiah Bagwelwa who was appointed to administer the said estates in Probate and Administration Cause No. 21/2022. It was his further argument that the trial court proceedings should be maintained, since parties to the original proceedings must appear as such in the subsequent proceedings, he referred the case of Marietha Gabo vs Adam Mtengu, Civil Appeal No.485/2023, CAT Kigoma (Unreported) available at tanzlii.org. Also, the case of Vaileth Mbilinyi vs Gody Cha we, Misc. Land Appeal No. 11/2022 HC (T) Mbeya (Unreported) available at tanzlii.org. Mr. Lawrence John further submitted that since the respondent was the Administratrix of the estates of Josiah Bagwelwa then she could not be sued in her own capacity, such anomaly was fatal and incurable and the same could not even be salvaged by the overriding objective principle. 3 Mr. Lawrence John contended that parties to the proceedings ought to appear as they did in previous proceedings, the Counsel submitted that in the previous application including Misc. Civil Revision No. 1/2022 and Misc. Civil Application No.1/2023 which were filed in this court the parties were Jonester Trasea Rwabigendela @ Jonester tones and Elizabeth nelson ngaiza. Mr. Lawrence submitted that the appeal had REFERENCE N0.20240301100004292 in the online system where the parties are Jones JosiAH Bagwelwa (Appellant) and the respondent is Elizabeth Nelson Ngaiza. He maintained that parties in original proceedings must be the same, he referred the case of Inter Consult Ltd vs Mrs Nora Kassa ng a [2019] 1 T.L.R 362 (CA) which stated that; "Be it as it may, we agree with Mr, Vedasto that substitution of the appellant's name from International Engineering Consultancy Services Ltd to Inter Consult Ltd without any specific order of the trial court was an irregularity which was fatal." Mr. Lawrence added that, a similar stance was also stated in the case of Salim Amour Diwani vs The Vice Chancellor Nelson Mandela African Institution of Science and Technology and Another, Civil Application No.116/2021 CAT, DSM [Unreported] available at tanzlii.org at page 4 and 5 where it was stated that; 4 "It bears reaffirming that, parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that and only with the leave ofthe court. "{Emphasis was his} He again referred to the case of Magu District Council & Another vs Mhande Nkwabi [1997] TLR 286, which stated that; "/Is the second applicant was not a party to the original suit from which the intended appeal originated there was no judgment or decree or anything against him to legitimize his joinder as one of the intended appellants.■' The learned counsel then submitted that there is no way parties who appeared in Misc. Application No. 01/2023 which is the result of this present appeal can be different. That, the situation is even more confusing because the parties appearing in the on-line submitted case which is also available vide judiciary system of case registration (CMS) and judiciary portal are JONESTER TRASEAS RWABIGENDELA @ JONESTER JONES Versus ELIZABETH NELSON NGAIZA while the parties appearing in the online judiciary system of case registration are JONES JOSIAH BAGWELWA (Deceased) and ELIZABETH NELSON NGAIZA.G 5 He maintained that a deceased could not file a case, so on their part they wondered why the deceased one JONES JOSIAH BAGWELWA appears to have filed the present appeal against the respondent herein, thus made the application to be incompetent. Submitting on third ground of preliminary objection, the learned counsel submitted that the purported appellant one Jonester Traseas Rwabigendela @ Jonester Jones was a party in the application for appointment of Administrator before the trial court, and after her failure to comply with court order the matter was heard ex-parte against her vide court order dated 27/9/2022. Mr. Lawrence John submitted that it is trite law that once a party seeks to challenge an exparte order including the order of proceeding exparte by way of appeal he/she cannot do so unless she has filed the application to set-aside the exparte order in the trial court. He referred the case of Pangaea Minerals Ltd vs Petro Fuel Ltd and Others, Civil Appeal No.96/2015 CAT, DSM [unreported] available at tanzlii.org at page 9 which stated; "Pursuant to Order IX rule 13 (1) of the CPC relied upon by Mr. Mwitasi, the remedy available to a defendant to a suit determined ex parte is to apply to the court which 6 passed the said order, that he had sufficient reasons for his non-appearance and pray for the said order to be set aside." The learned counsel then added that,, in that particular case the Court struck-out the appeal for being filed incompetently after failure to exhaust the local remedies available at the trial court. He also referred the case of Veri Oscar vs Issa Chambo, Civil Revision No. 1/2021, HC Iringa [unreported] available at tanzlii.org at page 6 where it was stated that; "From the quoted provision of the iaw, it is dearly that the party aggrieved with the ex-parte decision has to apply to the same Court to set aside the decision and not to lodge the appeal to the Appellate Court. " {Emphasis was his} Finally, Mr Lawrence prayed for this court to take a similar position and strike out the appeal insisting that it has no legs to stand on. In reply, as regards the first point of preliminary objection the appellant submitted that, the counsel for the Respondent was misleading this court and he stated that the application was presented for filing, received and sealed by this court on 06/02/2024. The appellant submitted that the 7 appeal was filed on 6/02/2024 twenty-six (26) days after the order of the Hon. Judge dated 11/1/2024. As to the second point of preliminary objection, the appellant submitted that, he maintained the trial court proceeding since parties to this proceeding appears as such in the previous proceedings. The appellant submitted that he did not sue the respondent regarding her actions involving the estate of the late Jones Bagwelwa but rather on her appointment as the administrator of estate. Further, the appellant insisted that in both Misc. Civil Revision No. 1/2022 and Misc. Application No. 1/2023 before this Court the parties were the same that is, Jonester Traseas Rwabigendela @ Jonester Joness and Elizabeth Nelson Ngaiza. The appellant referred the cases of Marietha Gabo vs Adam Mtengu, Civil Appeal No. 485,2023, CAT Kigoma, unreported and Salim Amour Diwani vs The Vice Chancellor Nelson Mandela African Institution of Science and Technology and Another, Civil Application No. 116/2021, CAT(T) DSM. Further, the appellant contended that the issue of names and dates are issues of technicality which can be cured by invoking the principle of overriding objectives under section 3A and 3B of the Civil Procedure Code, Cap 33 RE 2019. 8 On the third point of preliminary objection, the appellant submitted that, he does not fault for the decision of the trial Court to proceed exparte but rather the correctness of the decision itself so the authorities cited by the Respondent does not apply and further, the appellant had ah automatic right under section 70 (2) of the CPC [supra]. The appellant also referred the case of Dangote Industries Ltd Tanzania vs Warnercom (T) Limited, Civil Appeal No. 13 of 2021 to support her position. In rejoinder, the Respondent submitted that the applicability of the principle of overriding objective is not proper. Further, the respondent prayed for the court to address the difference of names as appear in the pleadings and online case as it creates confusion. And lastly, the respondent maintained that his complains touches on the whole proceedings and order of ex-parte proceeding and the remedy for the appellant was to file application to set aside the ex-parte judgment first before an appeal. I have carefully considered the rival written submissions of parties and as well the preliminary objections raised. For the interest of justice, it is very useful to define what is a preliminary objection and its objective. In the case of Mukisa Biscuit Manufacturing Company Ltd vs West End 9 Distributors Ltd [1969] EA 696, Sir Charles Newbod P. had this to say at page 700. "So far as I am aware, a preliminary objection consists of point of law which has been pleaded or which arises by dear implication out of the pleadings, and which, ifargued as a preliminary objection, may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of (time limitation, or a submission that the parties are bound by contract giving to the suit to refer the dispute to arbitration." Further at page 701, Sir Charles Newbod. P stated that; 'J4 preliminary objection is in the nature of what used to be a demurrer. It raises pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise ofjudicial discretion." With the above position of law, I ask myself in the instant case, were there points of objection which raised a pure point of law? From the above position, a preliminary objection must raise pure point of law. Point of law or facts constituting it must be pleaded by one of party and undisputed io by the other. It cannot be raised if any fact has to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. The Respondent raised three points of objection as outlined herein; 1, That, the appeal Is not maintainable for being filed out of time and contrary to this Honourable court order dated 11/01/2024 in Misc. Civil Application No. 1/2023. 2. That, the appeal is incompetent for failure to sue the respondent in her representative capacity, also the parties appearing in the original pleadings are different from those which appears in the judiciary online registered case which is a fatal irregularity. 3, That, the appeal is incompeten t for failure to set aside the ex-parte - judgment first, as the appellant is challenging even the order of proceeding ex-parte. Having subjected the above purported points raised by the Respondent whether they qualify to be pure point pf law under the above position of law, I find point one and three to qualify the above test. I will proceed to address them as follow. The first point raised by the respondent was that the appeal was filed out of time. Respondent contended that as per records the appeal was filed on 1/3/2024 after an order of extension of 30 days of Hon. Mrisha, J dated 11/1/2024 that was to expire on 11/2/2024. The basis of his stance was ii on judiciary system that reflects that the appeal was filed on 1/3/2024. However, my physical look of the document filed by the appellant shows that the application was presented, filed and endorsed by this court's stamp and dated on 06/02/2024. It is my firm consideration that the application for an appeal: was filed within time as per the court order. The allegation by the Respondent that the application was filed on 01/3/2024 as ho proof and the same is overruled. As to the third point of objection, the Respondent complains that the appeal is incompetent for failure to first set aside the exparte judgment. Before addressing the objection, it is important to revisit the law relating to ex-parte determination of a suit. It is a clear position of law, under Order 9 of the Civil Procedure Code, Cap 33 RE 2019 that, where the defendant does not appear on the date of hearing, the trial court may allow the plaintiff to proceed ex-parte and upon ex-parte hearing, it may pronounce an ex-parte judgment. Under Order 9 rule 13 (1) of the CPC, an ex-parte judgment may be set aside if the judgment debtor assigns good cause that prevented him to appear on the date when the court allowed the decree holder to proceed ex-parte. It has to be noted that the remedy for setting aside an ex-parte judgment is only available if the judgment debtor has good cause to justify his non-appearance. In the event that the trial court refuses to set aside the ex-parte judgment, the 12 judgment debtor can appeal under Order XL rule 1 (d) of the CPC. On the other hand, an ex-parte judgment is also appealable under section 70 (2) of the CPC. The section provides that an appeal may lie from an original decree passed ex-parte. Therefore, section 70 (2) of the CPC unambiguous as it is, does not impose any condition for appealing against an ex-parte judgment, thus it provides an automatic right of appeal against ex-parte judgment. Being guided by the Court of Appeal decision in the case of Pangea Minerals Ltd vs Petro fuel (T) Limited, Power Roads (T) Limited and Lycopodium Tanzania Limited, Civil Appeal No. 96 of 2015, where the Court of Appeal had these to say: "We are also aware that the provisions of Order IX rule 13 used the word "May" and the appellants had two options to either apply to set aside an ex-parte judgment or appeal to the court to challenge findings ofthe trial court." I therefore opine that a right to appeal against an ex-parte decree on its merits is automatic and does not depend upon there being a prior attempt to have it set aside. If the appellant wanted to challenge the findings of the ex-parte judgment, the remedy available is to appeal against it. The complaints contained in the memorandum of appeal in this appeal as I see they reflect dissatisfaction for the findings of the ex-parte judgment 13 pronounced by the trial court and I thus find the third objection of preliminary objection by the respondent to have no merit. The same is also overruled. Basing on the above explanation, the objections are therefore lacking in substance, I therefore dismiss them with costs. It is so ordered. Dated at Sumbawanga this 03rd day of September, 2024. T. M. MWENEMPAZI JUDGE Judgment delivered this 3rd September, 2024 virtually in the presence of Mr. Laurence John, Advocate for Respondent and appellant has been notified but could not access online session. 14