MALALASI CASE

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELLANEOUS CIVIL APPLICATION NO.5751 OF 2024 (Arising from the Iramba District Land and Housing Tribunal at Kiomboi in Miscellaneous Land Application No. 57 of 2023) BETWEEN REUBEN AMOSI MALALASI …………………………………………….……APPLICANT VERSUS GODFREY NAFTALI MATULU………………………………………...……RESPONDENT RULING Date of last order: 29/10/ 2024 Date of Ruling: 18/11/ 2024 LONGOPA, J.: This is an application for revision whereby this Court was invited to call and inspect the record of the District Land and Housing Tribunal of Iramba at Singida in Miscellaneous Application No.57 of 2023 determined by Hon B. J Shuma, the Chairman. On 18th March 2024, the application was filed under section 43(1)(a) of the Land Disputes Courts Act, Cap 216 R.E 2019 for three orders namely, that: (a) This Honourable Court be pleased to exercise its general 1|Page supervision power and call and inspect the record of the District Land and Housing Tribunal for Iramba in Application No. 57 of 2024 and give directions as to whether: - i. Whether an Application under Order VIII Rule 14(2) of CPC can be entertained where summons was duly served and defendant appeared in person. ii. Whether it was correct for the Tribunal to set aside the expert- proof where no reasons have been advanced in Affidavit accompany the Application. iii. Whether its correct, justifiable in law nor abuse of Court Process, for the defendant/respondent who has obtained Order under O.VIII Rule 14(2) of CPC only to enable him to engage an advocate and file WSD to continue and file WSD in person after the grant. iv. Whether is correct and justifiable in law for Advocate to represent Applicant and one of the Respondents in the same Application or akin proceedings v. Whether Ignorance of the law and afterthoughts are 2|Page sufficient grounds to obtain Order set aside ex parte order. (b) Costs of this Application. (c) Any other relief(s) this Honourable Court will deem fit and just to grant. This application was supported by the affidavit of Reuben Amosi Mlalasi (As Administrator of Estate of the Late Ruth Pyuza Mlalasi), the applicant. On 29/10/2024, only Mr. Tenzi Anthony Nyundulwa, advocate for applicant appeared before me for hearing of the application. However, the respondent and an advocate for respondent did not appear hence the matter was heard ex parte, under Order XXXIX Rule 17 (2) of the Civil Procedure Code, Cap 33 R.E. 2019 which provides for modalities to proceed with the case ex parte where respondent did not appear on the hearing date. The counsel for the applicant stated that the applicant brought this application under the provisions of section 43(1) (a) of the Land Disputes Courts Act, Cap 216 R.E. 2019 whereas he adopted the contents of the affidavit to form part of the submission. 3|Page The gist of the application was that while the Land Application was before the District Land and Housing Tribunal for Iramba at Kiomboi, the respondent herein filed an application under Order VIII Rule 14(2) of the Civil Procedure Code, Cap 33 R.E. 2019 requesting setting aside an order of ex parte proof for the respondent/ defendant who failed to file a written statement of defence. It was the applicant’s humble submission that the rule applies to a person who has defaulted appearance but not the one who was in court on the material date. The respondent was in Court throughout the proceedings thus could not use that avenue of setting aside ex parte proof order. In the case of Ester David Mmasi versus Emmanuel Makaidi [1967] HCD 170, the Court noted that before the court can exercise its discretion to proceed ex parte or enter judgment for the Plaintiff, it must be satisfied that the summons was dully served in sufficient time and that the defendant is absent. In the instant case, the defendant was in court and he prayed for service of the application. The Court granted 21 days to be served with and filed Written Statement of Defence thus the matter was fixed for hearing. 4|Page It was argued that on the date fixed for hearing, the defendant/ respondent appeared before the Tribunal and did not comply with the order to file the Written Statement of Defence. It was at that juncture when the Court ordered ex parte proof of the case where the respondent/defendant left the Tribunal on that day. The applicant applied to proceed with ex parte proof and exhausted all its witnesses except one who was to be called on a latter fixed date of hearing. It was at that time when the defendant/ respondent filed an application for setting aside the ex parte proof order. It was their submission that the sub rule (2) of Order VIII Rule 14 cannot apply to the defendant/ respondent who appears before the Court/ Tribunal. It was reiterated that as the respondent was present in the Tribunal, then this Rule does not apply. The applicant cited the principle in the case of Moshi Textile Mills versus B.J De Voest [1975] LRT No 17 illustrates on none appearance and failure to appear or file Written Statement of Defence. The Court stated that where the court held inter alia, that an ex parte judgment is that one entered when the defendant did not file the Written Statement of 5|Page Defence and appear personally or through an advocate. Though there was a need to achieve substantive justice but that do not cover the defendant/ respondent in this application. In the case of Mohamed Enterprises (T) Limited versus Masoud Mohamed Nasser, Civil Application No. 33 of 2012 (TANZLII), CAT DSM stated on the need to deal with substantive justice whereby at page 20 reiterated the need to adhere to rule of procedure. The provisions of the Civil Procedure Code should not be abused in the pretext of substantive justice. Also, the revision was premised on the argument that vacating the ex parte proof order without any valid reasons being advanced by the applicant/ person praying for so order before the Court/Tribunal. There were no sufficient reasons to depart from the ex parte proof order. The third aspect was that there were other applications brought by the respondent to act as delaying tactic. The same advocate was representing the opponent parties in the case. On those reasons, they were of the view that the application to set aside the ex parte proof order was abuse of the court process thus the 6|Page Tribunal ought to have not allowed it but the respondent/ defendant would be entitled to apply for extension of time. It was the prayer of the applicant that the ruling setting aside the ex parte proof order be quashed, the applicant herein be allowed to finalize its case through ex parte proof. That is what justice demands. Allowing the respondent/ defendant by setting aside the ex parte proof order as the District Land and Housing Tribunal did is the violation of the law that brings fair hearing to disrepute. The defendant/ respondent had alternative remedy instead of setting aside the ex parte order. I have dispassionately considered the application and its supporting affidavit as well as counter affidavit and record of the Court regarding this matter to determine merits of the application. I shall address the same as follows: For this Court to grant the application, it is pertinent that the applicant must demonstrate that respondent was not prevented by sufficient cause for his failure to appear on the hearing date. In that affidavit, the applicant avers that: First, the respondent 7|Page appeared before the Tribunal, served with application and granted 21 days to file Written Statement of Defence thus scheduled the matter for hearing on 17/07/2023. Second, the respondent appeared in person without filing WSD and the hearing scheduled on 02/08/2023. Third, on 02/08/2024 The Respondent prayed for an adjournment, advancing the reasons for that failure that he has engaged an advocate who is in safari from Mwanza to his residence at Dodoma and soon he will prepare the said WSD and file it before the Tribunal. Fourth, the applicant was permitted to proceed with ex parte proof whereas the applicant called all its witness except one and the matter was adjourned. Fifth, the respondent’s counsel filed an application for setting aside the ex parte hearing order and the court granted on account that respondent should not be denied the right to legal representation. Sixth, the respondent managed to file WSD and on 28/4/ 2024 when the matter was scheduled for hearing the respondent did not appear. Regulation 11 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN No. 174 of 2003 which provides thus: - 11 (1) On a day the application is fixed for hearing, the 8|Page tribunal shall: a. Where the parties to the application are present proceed to hear the evidence on both sides and determine the application. b. Where the applicant is absent without good cause, and had received notice of hearing or was present when the hearing date was fixed, dismiss the application for non- appearance of the applicant. c. Where the respondent is absent and was duly served with the notice of hearing or was present when the hearing date was fixed and has not furnished the tribunal with good cause for his absence, proceed to hear and determine the matter ex-parte by oral evidence. (Emphasis supplied) (2) a party to an application may, where he is dissatisfied with the decision of the tribunal under sub regulation (1), within thirty days apply to have the orders set aside, and the tribunal may set aside its orders, it thinks fit so to do 9|Page and in case of refusal, appeal to the High Court. It is discretion of the tribunal to set aside its own order after the applicant has adduced a sufficient cause before the court for non- appearance or failure to file Written Statement of Defence. To my view sufficient cause in the matter at hand are: one, where the summons or notice was not duly served to the applicant on the whereabout of the case and; when the applicant got the knowledge of the case at any stage. Upon the perusal of trial Tribunal’s proceedings in Miscellaneous Application No. 57/2023, the application was made under Order VIII Rule 14 (2) of the Civil Procedure Code and Section 95 of Civil Procedure Code. Order VIII Rule 14 (2) of the Civil Procedure Code provides as: - 14. (a) Where any party required to file a written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub rule 3 of rule 1, within the period of such extension, the court shall, upon proof of service and on oral application by the plaintiff to proceed ex parte, fix the date for hearing the plaintiff s evidence on the claim. 10 | P a g e (b) Where before ex-parte judgment has been entered pursuant to sub-rule (1) the court may, if the defendant assigns good cause, set aside the order to proceed ex parte, upon such terms as the court may direct as to costs or otherwise. (Emphasis supplied) (c) The decree obtained under this rule shall not be executed until after the expiry of the period of sixty days from the date of judgment. It is explicit that the law is categorically provides for powers of the Court to order ex parte proof on one hand as well as powers to vacate that order. Also, even when the decision is made the same cannot be executed unless expiry of 60 days to pave the way for possibilities of the judgment debtor to apply for setting aside such judgment. The instant matter reveals that the hearing of the applicant’s case was not yet finalized. Thus, matter had not reached the judgment stage. The applicant case was still ongoing. It was at that juncture that the respondent did apply for setting aside the ex parte order. 11 | P a g e To appreciate the matter, there are two main principles that came into play. The first one is the constitutional entrenched right to be heard as enshrined in Article 13(6) (a) of the Constitution of the United Republic of Tanzania, Cap 2 R.E. 2002. This provision provides that in exercise of the equality before the law every person must be afforded opportunity of fair hearing before his rights and duties are determined. It states that: (6) (a) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned. In the matter before the District Land and Housing Tribunal for Iramba at Kiomboi exists a dispute relating to rights and duties of the parties. Determination of such rights and duties calls for hearing of the 12 | P a g e parties before a final decision is made. However, due to reasons beyond the respondent’s control it appeared that the respondent failed to adhere to the procedure governing filing of documents namely the written statement of defence. It was at that juncture, the District Land and Housing Tribunal ordered for ex parte proof of the application before it. It is that order which had impact of affecting the rights of the respondent as he would be condemned unheard as a result of ex parte order. That is the reason this respondent diligently filed before the Tribunal an application to set aside the ex parte proof order. Importance of right to be heard was demonstrated in a plethora of authorities. For instance, Anthony M. Masanga vs Penina (Mama Mgesi) and Another (Civil Appeal 118 of 2014) [2015] TZCA 556 (18 March 2015), at page 8, the Court of Appeal stated that: It appears therefore that the respondents were not afforded the right to be heard (audi alteram partem) on that aspect. In fact, nowadays, courts demand not only that a person should be given a right to be heard, but that he be given an "adequate opportunity" to be heard so as 13 | P a g e to achieve the quest for a fair trial. See the case of The Judge i/c High Court Arusha & Another v. N.I.N. Munuo Ng'uni [2006] T.L.R. 44 At an earlier made decision, the Court in the case of the Judge i/c High Court Arusha & Another v. N.I.N. Munuo Ng'uni [2006] T.L.R. 44; (Civil Appeal 45 of 1998) [2002] TZCA 12 (5 March 2002) (TANZLII), at page 9, THE Court of Appeal held that: Entitlement to a fair hearing includes the principle of audi alteram partem. So, that principle is part of the Constitution. Since we have found that the suspension order violated the principle of audi alteram partem, then, it has also violated the Constitution. It is lucid that allowing the party to apply for setting aside the ex parte is to ensure that exercise of the fundamental constitutional right to be heard is fully realized. That is the reason allow not only setting aside the ex parte order to hear the case but in appropriate circumstances to set aside ex parte judgment. 14 | P a g e The second main principle that comes into play is that set aside the ex parte order is within the trial Court or Tribunal at the first instance, but in case the application is denied the appellate court is clothed with mandate to set aside such order. Such powers are to be exercised judiciously as the applicant must demonstrate a good cause is assigned by the defendant on reasons that prevented him from acting timely. A guidance on the sufficient or good cause can be found in the case of Yusufu Same & Another vs Hadija Yusufu (Civil Appeal No. 1 of 2002) [2006] TZCA 141 (20 October 2006) (TANZLII), at page 9 the Court noted that: It should be observed that the term "sufficient cause" should not be interpreted narrowly but should be given a wide interpretation to encompass all reasons or causes which are outside the applicant’s power to control or influence resulting in delay in taking any necessary step. It is on recording that in Miscellaneous Application No. 57 of 2023 was heard on merits and the trial Tribunal after being satisfied that a good cause was demonstrated allowed the application by setting aside the ex 15 | P a g e parte hearing order. It is the law of this land that both Regulation 11 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN No. 174 of 2003 and Order VIII Rule 14(2) (b) empowers the court or trial Tribunal to set aside ex parte order. That mandate is exclusively vested on the tribunal or court that has issued such ex parte order. Indeed, the law requires that in exercise of such powers the Court or tribunal must be guided by the presence of good cause and may imposed such conditions as it deems fit. In the instant application, record reveals that the trial Tribunal did hear both parties to the application and determined the same on merits. These are reflected in Paragraphs 6-8 of the affidavit in support of the application. As the trial Tribunal found that there was a good cause to set aside the ex parte proof order, it is settled view of this Court that given the circumstances of the case the trial Tribunal had mandate to set aside the order as it is the one which made such order. Also, the trial Tribunal was satisfied that a good cause existed namely the right to legal representation as part and parcel of the right to be heard. The trial Tribunal made this finding of existence of good cause upon full hearing of the parties vide 16 | P a g e written submissions. That was proper manner of handling of the application given the fact that the applicant herein has not completed tendering its evidence. The District Land and Housing Tribunal in a ruling dated 15/02/2024 summed up the good cause advanced by the respondent for the setting aside the ex parte hearing/proof to include: First, the respondent wanted to hire a legal counsel to assist in handling the case. Second, the difficulty with English language as well as the need to consult family members with a view of pooling up resources to hire an advocate. As such the trial Tribunal added that legal representation is a constitutional right. This in effect ensure fair and just trial where a party is given the opportunity to properly prosecute or defend his case whilst being represented by a legal professional of his choice. It is not in dispute that the application was indeed written in English language. Language might have been a barrier to an applicant in preparing his defence. Since he was desirous of engaged counsel on 10/08/2023, then he ought not to be denied of his right to legal representation. Indeed, I am in concurrence with this sound, well-reasoned and 17 | P a g e articulated decision of the trial Tribunal with regard to good cause for setting aside the ex parte proof/ hearing order. The trial Tribunal acted properly within the legal requirements on showing good cause prior to order of setting aside the ex parte proof/ hearing order. The Tribunal has such powers and acted with the confines of the law. The principle in the case of Lim Han Yung & Another vs Lucy Treseas Kristensen (Civil Appeal 219 of 2019) [2022] TZCA 400 (28 June 2022) (TANZLII), at pages 12-13, is illustrative whereby the Court of Appeal observed succinctly that: …we find it appropriate to premise our deliberations by making the following observations: One, it is not in dispute that the ex parte judgment sought to be set aside resulted from an ex parte proof of the respondent's claims in Land Case No. 45 of 2015 under Order VIII rule 14(1) of the CPC, following the appellant's failure to file a written statement of defence to the amended plaint. Two, just as it is in an application for setting aside an ex parte judgment resulting from the failure by the judgment 18 | P a g e debtor to appear when the suit is called on for hearing, the judgment debtor against whom an ex parte judgment is passed for his failure to file a written statement of defence and who desired the said judgment to be set aside, must assign good reasons that prevented him from filing the written statement of defence within the prescribed or given period of time. Three, generally, the remedy for setting aside an ex parte judgment is available if the judgment debtor shows good cause to justify his failure to either appear on the date the suit is called on for hearing or file a written statement of defence. Four, In the instant case, for the ex parte decree to be set aside, essentially, the appellants had to satisfy the High Court that they were prevented by any sufficient cause from filing a written statement of defence when they were ordered by the High Court to do so on 30.11.2016. It is also noteworthy to observe that the power to set aside an ex parte judgment, it be passed for a failure by a defendant to appear when the suit is called on for hearing 19 | P a g e or for failure to file a written statement of defence, is vested in the court by which the decree was passed. Further, at pages 14-15 of the judgment, the Court of Appeal instructively noted that: Going by the wording of the above reproduced provisions, it is clear that the power given to the court in setting aside an ex parte judgment, is discretional. We are also mindful that generally the exercise of discretion by the lower court can rarely be interfered by a superior court. Such an exercise can only be interfered with where it is clear that the decision arrived at was a result of erroneous exercise of discretion through either the omission to take into consideration relevant matters or taking into account irrelevant extraneous matters and misdirecting itself. In the instant application, it is the trial Tribunal that on 02/08/2023 order for ex parte proof and it is the same Tribunal that upon being satisfied with the existence of good cause on the part of the respondent 20 | P a g e regarding his failure to file WSD and or appear for hearing, it deemed fit to vacate that order. Indeed, that is what law demands. It is generally the same court or tribunal that orders ex parte proof which can set aside such ex parte except in very limited circumstances where the appellate court would do so on appeal if the trail Court or Tribunal refuses to exercise such powers. In the premises, I am satisfied that the applicant has failed to adduce any sufficient cause for this Court to grant this application and revise the decision of the District Land and Housing Tribunal for Iramba at Kiomboi in Miscellaneous Land Application No 57 of 2023. There is nothing of illegality nature that this Court might find to have impaired the rights of any party to the case. There are no sufficient materials adduced to convince this court to depart from sound decision reached by trial Tribunal in exercise its discretionary powers on the matter. There is nothing to void the well- entrenched procedure adopted by the trial Tribunal in setting aside the ex parte hearing/proof order. As such, I am inclined to dismiss the application for being destitute of merits. The application stands dismissed with no orders to costs. 21 | P a g e Consequently, the application before the District Land and Housing Tribunal for Iramba at Kiomboi proceed in accordance with scheduling orders of the Tribunal. It is so ordered. DATED at DODOMA this 18th day of November 2024. E.E. LONGOPA JUDGE 18/11/2024. 22 | P a g e