20200624 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL APPEAL NO. 255 OF 2017 (Originating from Misc. Civil Application No. 51 of 2017✓ from Civil Case No 50 of 2014 at Morogoro at Resident Magistrate Court by Honorable JJ. Mkhoi RM Dated 2(Jh October 2017)

BETWEEN PYARIAH SHIVJI ............................................................. APPELLANT

VERSUS DR. ESILY JOHN MWANKENKJA .................................. RESPONDENT

JUDGEMENT Date of last Order: 28/04/2020 Date of Judgement: 24/06/2020 MLYAMBINA, J. On 5th May, 2016 the District Court of Morogoro at Morogoro passed an ex-parte judgement against the appellant herein. On . 22 nd August, 2017 the appellant sought for extension of time to file an application for setting aside an ex-parte judgement. The application ended being dismissed on time limitation basis. Hence this appeal on the hereunder grounds: 1. That., the trial Magistrate erred in law and fact in not considering the fact that Civil Case No. 50 of 2014 was determined ex-parte and no notice was served unto the 1 appellant to enter appearance on the deference of the judgement for his necessary action as required by law.

2. That., the trial Magistrate erred in law in not considering the fact that notification of the party in ex-parte judgement is the mandatory principle of law.

3. That., the trial Magistrate erred in law and fact in determining the merit of the ex-parte application, for the reasons that he did appear during mediation and final pretrial conference thus has no good cause to set aside instead of determining the application for extension of time to lodge application to set aside ex-parte judgement. Wherefore, the appellant prayed the appeal be allowed and the application for extension of time be granted to lodge application to set aside ex-parte judgement. The appeal has been argued by way of written submissions. The appellant advanced two main argument in respect of the entire appeal. First, it was contended that the appellant was not informed by the District Court of Morogoro on the date the ex-parte judgement was to be delivered. Thus, he only became aware of the same after the time within which to file an application for setting aside ex-parte judgement had already expired. 2 It was the appellant's submission that the court has held times without numbers that when the matter has proceeded ex-parte, the party against whom it proceeded ex-parte has the right to know the date of the judgement. The appellant, therefore, cited two case laws. In the case of Chausiku Athumani v. Atuganile Mwaitege, Civil Appeal No. 122 of 2007 High Court of Tanzania at Dar es Salaam (unreported) at page 9 and 10 the court held: 11 /n ex-parte proceedings

failure to notify the defendant when the ex-parte Judgement will be delivered/ renders such proceedings null because it denies the defendant the right to take necessary steps to protect his or her rights where the Judgement is prejudicial to her/his interest On the strength of the court of appeal decision/ the third ground of appeal has merits/ under the circumstances. Consequent!½ the decision and order of the trial court dated 2/05/2007 is quashed and set aside. Similar!½ the ex-parte Judgement and decree dated 28/04/2006 is quashed and set aside." 3 ,. In the case of Cosmas Construction Co. Ltd V. Arrows Garments Ltd (1992) TLR 127 at page 128 the Court of Appeal of Tanzania at held: '!4 party who fails to enter an appearance disables himself from participating when the proceedings are consequently ex- parte, but that is the farthest extend he suffers although the matter is therefore considered without any input by him he is entitled to know the final outcome. He has to be told when the Judgement is delivered so that he may, if he wished, attend to take it as certain consequences may follow'~ Second, the appellant argued that application for extension of time has no time limit unless specifically provided by the law. To back up this point, the appellant cited two case laws, in the case of Tanzania rent a Car Ltd Vi. Peter Kimuhu, Civil Appeal No. 221/1 of 2017 the Court

ofAppeal of Tanzania (unreported) held: ''In the circumstances, I am increasingly of the same view that there is no specific time limit set within which an application for extension of time should be filed. This is not only in accordance with the long established practice built on court's landmark decisions but also accords to logic that so as to expedite dispensation of Justice there is need to avoid 4 wherever possible as is in the case herein multiplicities of applications this is indeed the spirit of the law as it categorically states that the court ma½ upon good cause shown extent the time .... whether before or after the expiration of that time and whether before or after the doing of the act. '' In the other case of Independent Power Tanzania Ltd v. James Burchand Rugemalira, Civil Application No. 84 of 2008 ( unreported) the Court of Appeal of Tanzania held at page 5: 11 On the second objection the learned counsel argued and I entirely agree with him that in application for extension of time there is no period set for filing such application. Obvious!½ this is logical because one comes to the court after failing to file the application or whatever else is intended to be filed, within the period set by the law. On the strength of the above, the appellant maintained that the trial magistrate erred in law and fact in dismissing the application for extension of time for

being time barred and for not considering 5 that the appellant was supposed to be notified when ex-parte judgement was to be delivered. In reply the respondent argued that failure to notify the appellant the date of ex-parte judgement is not a ground for extending time to set aside the ex-parte judgement but it is a ground for setting aside ex-parte judgement. On that footage, the respondent cited the case of Cooperative and Rural Development Bank {1996) Ltd v. Morogoro Farm and Transport Services {1985) Ltd (unreported) in which my brethren Makaramba, J (as he then was) observed: "With due respect to the learned counsel for the applicant, the fact that the said ex-parte judgement was delivered without the applicant being given notice of the day of its delivery is a ground for setting aside the ex-parte judgement itself under Order XX Rule 1 of the Civil Procedure Code Cap 33 [R.£ 2002] but not a ground for extending time to file application to set aside ex-parte judgement under Section 14 of the Law of Limitation Act Cap 89 R.£ 2002." On the ground that the application for extension of time cannot be time barred, the respondent replied that it was not a ground of appeal in the memorandum of appeal. As such, it should not be 6 raised and argued without leave. The respondent, cited the case of Twagira V. Attorney General and Others (2009) 1 EA 418 at page 425 where it was

stated: "It is true that the practice in appeals is normally for an appellate court to consider and determine grounds of appeal set out in memorandum of appeal. " In Sarah Wanjiku Mtuliso v. Gideon M. Mutiso (1986) LL. R 4879 also reported in Odunga's Digest on Civil Case Law and Procedure at page 3012 it was held: "Cases must be decided on the issues on record and if it is desired to raise other issues, they must be pleaded on record by amendment. " I have meritoriously considered the arguments of both parties, I'm of the observation that, as correctly, replied by the respondent, lack of notice to attend the ex-parte judgement delivery is a good ground for setting aside the ex-parte judgement. It can be a good ground for extension of time to set aside the ex- parte judgement only if the applicant was not aware of the proceedings or was prevented by good cause to attend the proceedings. In this case, the impugned decision reads at page 4 inter alia that: 7 . •• ... the court reached to the ex-parte judgement order after the applicant decided to abandon his case at the stage when the case was fixed for the Final Pre- Trial Conference. Neither the applicant (by then defendant) nor his advocate bothered to appear before this court or to file the notice for the leave of his absence. What Advocate Mkilya presented before this court that the applicant was not aware of the case nor

the ex-parte judgement, is not true at all since the applicant (by then defendant) had a knowledge ofhis case and his advocate appeared even to the mediation before Honorable Kimaze, he was obliged to know the status of his case but also to inform the court of any problem he was facing..... '' It is clear from the above observation of the trial court, that the appellant ought to have made follow up of his case. The argument that he was not aware of the ex-parte judgement cannot be used as a hammer for litigants who sleep to make follow up of their rights. Even if it is accepted that lack of notice to attend the ex-parte judgement is a good ground for extension of time, that alone cannot be the sole ground. It is subject to proving other important factors for extension of time including accounting for each day of delay and acting diligently in bringing up the application. 8 . I further agree with the respondent that the ground that an application for extension of time has no time limit, is an afterthought ground, as it is not part of the grounds of appeal. In the end, the appeal is dismissed with costs for lac •, ... >\,. 1j\ J. MLYAMBINA - ::.\)>Ji E -" ,_ ~/ 020 ,~-✓ _, ----- Judg ~::::t:\"fiKr unced and dated 24th day of June, 2020 _in the presence of Counsel Joseph Samwel for the appellant and in the absence of the respondent. \ .i' .. · /·/ 9