MLIGO 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 14977 OF 2024 (Originating from Misc. Civil Application No. 156 of 2023 and Civil Case No. 8 of 2022 in the District Court of Kinondoni at Kinondoni) MLIGO MUSSA HAMIS ....................................................... 1ST APPELLANT JUMA ELLY SAID .............................................................. 2ND APPELLANT MOSES MUSSA MLIGO ..................................................... 3RD APPELLANT VERSUS JOSEPH MICHAEL KITALY .................................................. RESPONDENT JUDGMENT Date of Last Order: 22.10.2024 Date of Judgment: 03.12.2024 NGUNYALE, J. The respondent JOSEPH MICHAEL KITALY obtained judgment in his favour in Civil Case No. 08 of 2022 based on breach of contract agaInst the appellants namely MLIGO MUSSA HAMIS, JUMA ELLY SAID and MLIGO MUSSA HAMIS. The matter was decided ex parte upon failure of the appellants to appear and prosecute their case. The appellants were not amused with the matter being determined ex parte thus they preferred Miscellaneous Civil Application No. 156 of 2023 before the =isti'ict Court of Kinondoni at Kinondoni seeking an order setting aside an ex parte judgment and decree issued in respect of Civil Case No. 08 of 2022. The application was decided in favour of the respondent for the reason that they failed to advance sufficient cause for their failure to appear when Civil Case No. 08 of 2022 was called on for hearing. Still aggrieved, they preferred the present appeal which was founded in one ground of appeal; - That the trial court erred in law and facts by holding that the reasons advanced by the appellants are not sufficient cause for the court to set aside ex parte judgement and decree of Civil Case No. 08 of 2022 dated lst day of June 2023 delivered before Hon. J. H. Mtega . The appeal was called on for hearing on llth September, 2024 where by the appellants appeared represented by Saidi Salmini Saidi and the respondent appeared represented by Agness Audax assisted by Julieth Rushuri all learned advocates. The Counsels suggested that the hearing should take the form of written submission, the idea of written submission was accepted by the court. The appellants were to file their submission in chief on 25th September, 2024 and the respondents to file reply to the submission in chief on 08th October, 2024 and the rejoinder if any to be filed on 15th October, 2024. 1 am very grateful for the timely compliance to the scheduling order of fili ;pective submissions The appellants’ Counsel submitted that the appellants seek to have the said judgment delivered on 01st June, 2023 be set aside and the matter to proceed on its merit. The trial court misapplied the established legal principles governing the setting aside of ex parte judgments. According to the established jurisprudence, an ex parte judgment can be set aside upon demonstration of sufficient cause for non-appearance. He went on to state that it is a trite law that sufficient cause must be interpreted liberally and equitably, particularly where the party has shown good faith in seeking to defend the case. It was the appellant’s submission that the trial court failed to apply the standards properly in the present case. are appellants adduced sufficient cause that they refrained from attending the court proceedings due to the agreement they entered with the respondent following the negotiations to settle the matter out of court. The respondent concurrently with the Civil Case No. 08 of 2022 had initiated criminal proceedings against the lst and 3'd appellants and it was agreed that upon payment of Ten Million Tshs (10,000,000/=) by the appellant as the initial indication of settlement the respondent should withdraw both cases that is to say Civil Case No. 08 of 2022 and Criminal Case No. 212 of 2022. As a result of the said negotiations between the appellants and the respondent; on 16th January 2023 the 3 W/ 1't appellant deposited the said amount into the respondent’s bank account and the respondent agreed to withdraw the cases. Basing on those negotiations on 25th May 2023 he caused the Criminal (-'ase No. 212 of 2022 to be withdrawn and in the same way the respondent guaranteed to withdraw the Civil Case No. 08 of 2022. When they were waiting for the withdrawal of the said civil case, they were summoned to appear in court for judgment. Through that summons is when it came to their knowledge that the matter had proceeded ex parte. The appellant went further submitting that setting aside the ex parte judgment will not cause any undue prejudice to the respondent. The respondent has already been granted an opportunity to be heard and allowing the appellants to defend the suit will serve the greater interest of justice by ensuring that the matter is determined on its merits. On the contrary, the appellant will suffer substantial injustice if the ex parte judgment is allowed to stand. The right to a fair hearing and right to be heard are fundamental principles of justice, and the refusal to set aside the ex parte judgment would deprive the appellants of their right to be heard. TIle respondent Counsel submitted that in order for the trial court to set aside the exparte judgment entered in the said Civil Case No. 08 of 2023 the appellant had to prove that they had sufficient reasons that prevented them from attending to court when the matter was called on for hearing. They do not dispute existence of the agreement to settle but the appellant did not honour the said agreement because he could not deposit the money according to the instalments they had agreed. Therefore, the appellant cannot use such agreement as an excuse for not attending to court. At least they could be in a good standing if they indeed had paid the claimed amount in the agreed instalments but they paid only 10,000,000/= out of 65,000,000/= expecting the respondent to withdraw the suit. There is no evidence like consent judgment to prove that there was settlement made between the parties. The respondent concluded his submission by pressing the court to disallow the appeal. My starting point in the determination of the sole ground of appeal is by revisiting the law relating to setting decrees or judgments ex parte against the defendant which is provided under Order. IX Rule 9 Civil Procedure Code [Cap. 33 R.E. 2019] that: "In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that, where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. " Emphasis added. Guided by the above position of the law, I am to decided whether the appellants were prevented by sufficient cause to show appearance in his case before the trial court or whether the trial court was right to rule the application in favour of the respondent. In his submission the appellant stated that they agreed with the respondent to settled the matter out of court after they had negotiations for the appellant to pay. In their agreement, the respondent was to withdraw the suit. Basing on the agreement to settle the matter, the appellant expected the matter to be withdrawn as they agreed in their negotiations. The fact that they expected the matter to be withdrawn by the respondent they did not show appearance to court until when they were summoned to appear to court for judgment. He said that he had sufficient cause for not attending court session in which the matter was ordered to proceed exparte. The submission of the appellant on the ground of appeal has been seriously opposed by the respondent. The respondent said that before the court there is no proof that they entered into such kind of agreement and after all the appellant cannot use such agreement as an excuse for not attending court session on submitting that the appellants did not honour the agreement because they did not pay the instalments in time. He prayed the court to disallow the appeal. Having considered the argument of the parties on the sole ground of appeal, both parties are in agreement that setting aside ex parte judgment is possible upon demonstrating sufficient cause for none attending to court. From the outset I do not agree with the respondent that there is no evidence that they entered into an agreement to settle the matter out of court whereby the suit to be withdrawn. Ibis is my profound finding because the records of the trial court contain an affidavit in support of the application in which the lst appellant deponed that they agreed with the respondent to settle the case out of court and the case to be withdrawn. The facts that they entered into an agreement to settle the matter was not controverted by the respondent by way of affidavit or counter affidavit. Ttre respondent in his submission comes with a point that the appellants did not honour the agreement to settle the matter because he failed to pay the instalments they agreed in time Upon screening the arguments of the respondent, I find the contradicting positions. In the first place he says that there is no evidence that they had agreed to settle the matter out of court and in the other side of the submission he says that the appellant is the one who dishonoured the agreement to settle the matter out of court. I will not waste much time with the contradictory position in the submission of the respondent because those arguments are not supported by any piece of evidence other than submission which is not evidence. The case of Registered Trustees of the Archdiocese of Dar es Salaam versus The Chairman, Bunju Village Government & 11 Others, Civil Appeal No. 147 of 2006 is a good authority that submissions are not evidence. Settlement out of court is acceptable by the court when the parties reach consensus in their differences in which the suit emanated. In this case if the parties were in the plan to enter into settlement, it was a good move which is legally accepted. But such move should not affect the procedures of case management in court. I am aware that a party to the case has a duty to make follow up of his case and to attend court sessions according to the schedule set by the court as accurately stated by the trial court. This position has been stated in a number of cases including the case of Lim Ham Yun & Another versus Lucy Treseas Kristensen, Civil Appeal No. 219 of 2019. Therefore, the appellants had a duty to make follow up of their case until the final order of the court, but because there existed a settlement agreement between them, I decline to rule that it does not amount to good cause per Order XIX Rule ,m 9 of the CPC. I decline to rule that way because there is unilateral evidence that they agreed to withdraw the case the act which probably confused the appellants. Considering nature of the case, this appeal must succeed . Having made the above observations, I am satisfied that the appellants had demonstrated sufficient cause in Misc. Civil Application No. 156 of 2023 necessary for setting aside ex parte judgment in Civil Case No. 08 of 2022 per Order IX Rule 09 of the CPC. The appeal is allowed, I hereby set aside ex parte judgement and decree of Civil Case No. 08 of 2022 dated 1;t day of June 2023 and the suit is restored to start afresh from where the proceedings started ex parte. Costs to follow in the cause. Order accordingly. Dated at Dar es Salaam 03’d day of December, 2024 JUDGE Judgment delivered this 03’d day of December, 2024 in presence of Ms. Victoria Gregory for the appell i Id brief for the respondent n)= D. P JUDGE 9