SIMON JOHN NGALESON VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL NO. 8442 OF 2024 (Originated from Civil Case No. 42 of 2018 of the Court of Resident Magistrate at Arusha) SIMON JOHN NGALESON.............. ............................................. APPELLANT VERSUS FATHER VELEMIR TOMIC (Suing as Legal Representative of the Registered Trustees of Catholic Archdiocese of Arusha........................................................... RESPONDENT JUDGEMENT 26th September & 14th November, 2024 KAINDA, J.: In the Court of Resident Magistrate of Arusha at Arusha vide Civil Case No.42 of 2018, the respondent, Father Velemir Tomic (suing as Legal Representative of the Registered Trustees of Catholic Diocese of Arusha successfully sued the appellant, Simon John Ngaleson for among other things, a decree for payment of TZS. 108,258,473/= as a liquidated damage following a road accident which, it is alleged, was caused by the appellant. The accident left the respondent with some permanent disability as well as a damaged vehicle. After ex parte hearing, the respondent was awarded TZS. 108,258,473/= as a liquidated damage and i an interest at ten percent (10 %) on decretal sum from the date of judgement till payment in full. From the record, the appellant unsuccessfully attempted to apply to the trial court to have the decision set aside. Later on, he lodged in this court an application seeking for an extension of time to file an appeal against an ex parte judgement and a decree in Civil Case No. 42 of 2018. On 26th March, 2024, this court (Ndumbaro, J.) granted the appellant fourteen (14) days within which to file the appeal. On 8th April,2024, the appellant filed his petition of appeal containing the following ten (10) grounds of complaint. 1. That the trial court erred both in law and in fact for failure to frame issues for determination before the commencement of the hearing of the Civil Case No. 42 of 2018. 2. That the trial court erred both in law and in fact by allowing the advocate for the respondent who was the plaintiff to testify as a witness. 3. That the trial court erred both in law and in fact by entertaining the suit while the respondent had no locus standi to sue as legal representative of the Registered Trustees of Catholic Diocese of Arusha. 2 4. That the trial court erred both in law and in fact for awarding TZS. 108,258,473/= to the respondent as a liquidated damage which covers the actual costs of new car with registration No. T.624 DAW while there was no proof that the said motor vehicle was a totally written off during the accident. 5. That the trial court erred both in law and in fact by failure to make an order for the motor vehicle No. T.624 DAW to be handed to the appellant after the order of payment of TZS. 108,258,473/= to the respondent as a liquidated damage which covers the actual costs of a new car hence the respondent benefited twice contrary to the law. 6. That the trial court erred both in law and in fact by relying on exhibit P2 which was tendered by PW3 who was not an expert on valuation. 7. That the trial court erred both in law and in fact by awarding the liquidated damages to the respondent while he was already being compensated for the actual loss by the insurer who did a valuation on the actual loss. 8. That the trial court erred both in law and in fact by relying on the contradictory evidence by the respondent where PW2 claimed that the amount of USD 38,000 he was claiming was of a new 3 car while PW3 claimed that TZS. 125,950,00/= claimed was a maintenance costs. 9. That the trial court erred both in law and in fact by awarding TZS. 108,258,473/= to the respondent as a liquidated damage out of nowhere because it was not proved on how the trial magistrate reached at that figure. 10. That the trial court erred both in law and in fact by failure to notify the appellant who was the defendant in Civil Case No. 42 of 2018 on the date of delivering the judgment. Accordingly, the appellant prayed for the court to allow the appeal by quashing and setting aside the judgement and the decree of the trial court. Before I dwell on to discuss the merits or demerits of the appeal, my attention will be drawn to the preliminary issues relating to the competence of the appeal before the court which were earlier raised by the respondent and discussed in the parties' respective submissions. The respondent raised in the form of a Preliminary Objection that; one, that the appeal is incompetent for failure of the appellant to exhaust remedy available in the trial court; two 4 that, the appeal is incorfipetent for being against the principle of estoppel. In regard to first ground, the respondent submitted that the law provides two remedies for a person who was involved in ex parte judgement. The first remedy, a person who was defendant can prefer an appeal against ex parte judgment on merits as provided under Section 70 (2) of the Civil Procedure Code Chapter 33 of the Revised Edition of 2022. The second remedy, a person who was a defendant can prefer an application to set aside ex parte judgement as provided under Order IX Rule 13 of the Civil Procedure Code (supra). Further, it was submitted that, there is concurrent power with regard to ex parte judgement, however, he went on, a party cannot use both remedy available citing the case of Dangote Industries Tanzania Limited v. Warnercom (T) Limited, Civil Appeal No. 13 of 2021 where it was held; " since the jurisdiction to set aside ex parte judgement is exclusive to the trial court as much as jurisdiction to appeal is exclusive to the appellate court, the appellant cannotpursue both actions." 5 The respondent submitted that, the appellant at first opted to set aside ex parte judgement and did initiate it by filling two applications for extension of time within which to file an application to set aside ex parte judgement. The first being Misc. Civil Application No. 9 of 2020. This application was struck out for being incompetent. Another was Misc. Civil Application No. 36 of 2020. This one was dismissed. Both applications were lodged before the Court of Resident Magistrate for Arusha at Arusha. The respondent went on, by filling these applications, the appellant opted to set aside the ex parte judgement as a remedy hence, the appeal as a remedy was closed. He went on that, it was incumbent on the appellant to challenge the decisions in the applications by way of appeal, revision or review but he did not do so. For this court to allow the hearing of the appeal, he submitted, will allow the appellant to utilize both remedy which is against the law. He prayed for the court to find that the appeal is incompetent before the court. In his submission in rebuttal, the appellant relied on Section 70 (2) of the Civil Procedure Code and submitted that, an ex parte judgement is appealable for any aggrieved party either being a plaintiff or defendant. He cited the case of Dangote Industries (T) Limited v. Warnercom (T) Limited (supra) where it was held that; 6 " Conversely, an ex parte judgement is appealable under Section 70 (2) of the CPC which provides that; an appeal may He from an original decree passed ex parte. Section 70 (2) of the CPC, unambiguous as it is, does not impose any condition for appealing against an ex parte judgement" The court went on at page 8 that; " We can thus hold without hesitation that, the right to appeal against an ex parte decree is automatic and does not depend upon there being a prior proceeding to set aside the ex parte judgement." I have considered the argument from both sides, it is quite clear that both parties are at one that, the law provides two remedies for a person who is involved in ex parte judgement; one, to file an application to have the ex parte judgement set aside to be determined in the trial court; two that, the aggrieved party may wish to appeal against the ex parte judgement. In the trial court, the party may wish to challenge the order to proceed ex parte while in the appellate court, the appellant challenges the merits of the decision. However, it is instructive to note that, a party cannot pursue both actions at the same time. In Dangote case (supra), which quoted with 7 approve the holding in the case of Jaffari Sanya & Another v. Saleh Sadiq Osman, Civil Appeal No. 119 of 2014, held at page 10; " The court, while in agreement with the counsel that both the trial court and the appellate court enjoy concurrent jurisdiction to deal with an ex parte judgement, it was of the view that, since the Jurisdiction to set aside an ex parte judgement is exclusive to the trial court as much as the jurisdiction to appeal is exclusive to the appellate court, the appellant cannot pursue both actions at the same time." To that end, I think, law in Tanzania, is settled on the principle that, litigants should first exhaust lawful available remedies under statutory or case law starting with the court of lowest grade. It is the respondents' contention that the appellant did not exhaust the remedy available because he did not appeal against the order which dismissed the application to set aside the trial court judgement. In Dangote case (supra) the court discussed the decisions in Jaffari Sanya & Another v. Salehe Sadiq Osman (supra) and Pangea Minerals Ltd v. Petrofuel (T) Limited and 2 Others, Civil Appeal No. 96 of 2015, at page 9; 8 " It would appear to us to be the principle in the said authorities that, where the defendant intends to challenge both the order to proceed ex parte and the merit of the findings in the ex parte judgement, he cannot challenge the merit of the findings before dealing with an application to set aside the ex parte judgement first. This principle is based on the longstanding rule of procedure that, one cannot go for appeal or other actions to a higher court if there are remedies at the lower. He has to exhaust all the available remedies to the lower court first." (emphasis supplied) The immediate question will be whether or not the appellant had, before filling this appeal, exhausted the remedy available in the trial Resident Magistrate Court. As to what is all about exhaustion of remedy, I shall seek guiding principle from the decision of the high court case of Higher Education Students Loans Board v. Yusufu M. Kisare, Consolidated Labor Revision No. 755 and 858 of 2018 where it was stated; " Whether the dispute was prematurely filed at the CMA, it was argued that the CMA did not exhaust internal remedies to wit, appealing to the Minister," 9 The court went on at page 25; "since the employee was not executive Director or Director, he was not required to appeal to the Minister. So, the employee was not supposed to exhaust such remedy." In the case at hand, the appellant is of the opinion that, having made an attempt to have the ex parte judgement set aside and denied by the Resident Magistrate court, there was no need to appeal against the order refusing the application. On the other hand, the respondents' position is that, the present appeal is filed prematurely. The appellant is supposed to exhaust the remedy which was still available, for instance; to go for appeal, review or revision against the order which denied the appellants' application to set aside the ex-parte judgement. I subscribe to the respondents' position. The appellant did not tell the court as to why having denied extension of time to set aside the ex parte judgement, did not pursue an appeal to the higher court as provided by law. It seems to me that, it cannot have been the intention of the legislature to allow litigants, like in the case at hand, to jump from one statutory forum for redress to another forum. In the circumstances, I am satisfied that the appellant has filed the appeal prematurely without exhausting all the available remedies which 10 has rendered this appeal incompetent. Having upheld the first preliminary point, I find it unnecessary to discuss the second point and the grounds of appeal. Eventually, the incompetent appeal is hereby struck out. Considering the circumstances of the matter, I make no order as to costs. S. J. KAINDA---- JUDGE 14.11.2024 The judgement is delivered under my hand and seal of this court in Chambers this 14th day of November, 2024 in the presence of Mr. George Mrosso, learned advocate for the appellant also holding brief for Mr. Peter Mhalila, for the respondent. Right of appeal fully explained. " z S. J. KAINDA JUDGE 14.11.2024 li