CIVIL APPEAL NO 95 OF 2022 TROPICAL AIR Z LTD v GODSON ELIONA MOSHI

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA ( CORAM: MKUYE. 3.A., RUMANYIKA. 3.A. And MDEMU. J.A.^ CIVIL APPEAL NO. 95 OF 2022 Reference No.20220330000410817 TROPICAL AIR (Z) LTD........................................................ APPELLANT

VERSUS GODSON ELIONA MOSHI................ ................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Massenai. 3.^ dated the 09th day of February, 2016 in Civil Appeal No. 48 of 2015

JUDGMENT OF THE COURT 18thFebruary & 4th March, 2025 MKUYE. J.A.: This is an appeal in which the appellant, Tropical Air (Z) Ltd is challenging the decision of the High Court of Tanzania at Arusha (Massengi, J. as she then was) dated 9th February, 2016 dismissing the appeal against the Resident Magistrates" Court's decision refusing to set aside ex-parte judgment in Misc. Civil Application No. 33 of 2015 which was delivered on 29th September, 2015. The background of this matter is that, the respondent Godson Eliona Moshi, instituted Civil Case No. 100 of 2013 claiming against the appellant for payment of TZS. 21, 217, 333.00 as principal sum of the agency fee which was due and payable under the agency agreement. The respondent also, claimed for specific damages at the tune of TZS. 39,019,126.90 together with general damages arising out of inconvenience occasioned by the appellant's malicious termination of the contract. The said suit was instituted on 11th September, 2013 where upon Kamuzora Ag. RM in charge of the Resident Magistrate's Court of Arusha, made on order fixing the date of mention. She also ordered for the plaint and summons to be issued upon the defendant (appellant herein) and that the written statement of defence (WSD) be filed on or before the date of mention. It appears that, despite the fact that the matter was called on before the court on several occasions,

the appellant did not file the said WSD claiming that he had filed an application for stay of proceedings (See page 47 of the supplementary record of appeal). With this state of affairs, when the matter was called on for mention before Kasinda, RM on 12th November, 2014, Mr. Yoyo, learned counsel for the respondent, prayed for the court's directives, then the court ordered for the appellant to file WSD but the order was not complied with. As the appellant entered no appearance when the matter was called on for mention on 25th February, 2015, Mr. Yoyo prayed for an order for ex-parte proof since the appellant failed to comply with the order to file WSD. The court granted the prayer and fixed the matter for ex-parte hearing on 18th March, 2015, where upon all respondents witnesses testified and the ex-parte judgment thereof was delivered on 15th May, 2015 in favour of the respondent. Following the ex-parte judgment, the appellant filed an application to set it aside vide Misc. Application No. 33 of 2015 at the Resident Magistrate's Court of Arusha. He claimed that he was not served with notice of ex-parte hearing and the date of ex-parte judgment. However, the said application was not successful. The trial court reasoned among others that, the appellant was made aware of the order for ex-parte hearing by the court clerk while at the registry on 18th March, 2015 when Civil Case

No. 100 of 2015 was being heard but he did not enter appearance or take any action. Dissatisfied, the appellant appealed to the High Court through Civil Appeal No. 48 of 2015 on three grounds of appeal, however, again, he was not successful as the appeal was dismissed. Still aggrieved, he has now appealed to this Court fronting three grounds of appeal as hereunder: 1) That, the learned Judge erred in law and in fact in holding that the appellant and his advocate were aware o f the ex-parte hearing and judgment in the absence o f any notice o f the ex-parte hearing and ex-parte judgment 2) That, the iearned Judge erred in iaw and in fact in holding that the appeiiant waived his right to defend the suit and that there were no reasonable grounds for setting aside the ex-parte judgment and decree.

3) That, the learned Judge erred in law and in fact in holding that the decision o f the trial court was correct, fair andjustified. When the appeal was called on for hearing, Messrs. John Materu and Ombeni Kimaro, learned advocates, appeared representing the appellant whereas the respondent was represented by Mr. Asubuhi John Yoyo, also learned advocate. In the first place, Mr. Materu sought to adopt their written submissions filed earlier on to form part of their oral submission. Having done so, he went on submitting on the ground of appeal in relation to the learned Judge's finding that the appellant and his advocate were aware of the ex-parte hearing and judgment. In both written and oral submissions, it was argued that, there was nothing in the record of appeal evidencing that the appellant or his advocate were aware of the ex-parte hearing and judgment. He pointed out that, there was no evidence to show that the appellant and or his advocate were served with a notice of ex-parte hearing or delivery of ex-parte judgment as there was no copy of the notice which was issued in the prescribed form signed by either the appellant or his advocate. In his oral submission, Mr. Materu argued further that, although on 12th November, 2014, the court ordered the appellant to file his WSD as shown at page 54 of the supplementary record of appeal, it did not specify the time within which

to file it having regard to the fact that neither the appellant nor his advocate were in attendance in court. Apart from that, it was argued that, there was no proof that the appellant was informed of the ex-parte hearing at the registry as it was even illegal for the court clerk or registry officer to do so. The appellant argued further that, in fact, even if a party failed to appear during ex- parte hearing, he had to be informed of the date when the ex-parte judgment would be delivered as per Order XX rule 4 of the Civil Procedure Code, Cap. 33 R.E. 2019 (the CPC). To fortify his argument, he referred us to the case of Cosmas Construction Co. Ltd v. Arrow Garments Ltd (1992) TRL 127. Mr. Materu, therefore, stressed that, regardless of whether the case is heard inter-partes or ex-parte, the requirement of notifying the parties of the date of judgment is mandatory but it was not adhered to. The complaint in ground no. 2 is on the High Court Judge's finding that the appellant waived his right to defend his suit and that no reasonable grounds for setting aside the ex-parte judgment and decree were given. On this ground the appellant's counsel was fairly brief and focused. He argued that, except on 24th September, 2014, neither the appellant nor his advocate was aware of the following dates in which the parties were to enter appearance in court as no summons was served on

them which is the most viable means of service as per Order V rule 12 of the CPC which requires the court process server to verify service of summons by affidavit. It was argued, therefore that, in the absence of knowledge of the exact dates to appear in court, it was not possible for the appellant to appear and defend his case. In this regard, Mr. Materu added that, as the case was heard ex-parte, the appellant ought to have been notified of the date of judgment as per Order XX rule 1 of the CPC. As to the effect of the ex-parte judgment delivered without notice being served on the parties, Mr. Materu cited to us the case of Omary Shaban Nyumbu v. Dodoma Urban Water Supply and Sewerage Authority (DUWASA), Civil Appeal No. 303 of 2020 [2023] TZCA 17460 (28 July 2023), where it was observed that, the judgment delivered in the absence of the parties is not effective, operative or a valid judgment which could be appealed against for it is a nullity, and under section 4 (2) of the Appellant Jurisdiction Act, Cap 141 R.E. 2019 (the AJA), it runs the risks of being nullified. In the third ground of appeal in which the High Court's Judge is challenged for affirming the decision of the trial court to be correct and fair, the appellant countered it insisting that he was denied his right to be heard for failure to notify him the date of ex-parte hearing and the date of delivering the

ex-parte judgment. To bolster his argument, he cited the case of NUTA Press Limited v. MAC Holdings and Another, Civil Appeal No. 80 of 2016 [2021] TZCA 665 (3 November 2021) TanzUI. He therefore stressed that, failure to issue summons to the appellant amounted to denial of the right to be heard which occasioned miscarriage of justice. At the end, Mr. Materu implored the Court to find the appeal merited and allow it. In response, Mr. Yoyo, prefaced by seeking the indulgence of the Court to adopt his written submissions he filed on 5th May, 2012. Thereafter, he did not dispute the requirement of the law regarding issuance of notice of ex-parte hearing and ex-parte judgment to enable the affected party to take action; and that in this case, there was no such written notice. He argued that, in the High Court's judgment, the reasoning of the Judge was quite proper, as she discussed the issue that there was no summons but rejected it on account that the appellant was aware of the hearing date having been notified by the court clerk. He added that, ordinarily, the parties to case owed a duty to take active responsibility but in this case the appellant acted with laxity in pursuing his case. He assailed the appellant for his absence in court on several occasions (5 months), and that even when he appeared, he informed the court that he had filed an application for stay of proceedings

which was refused; and yet he went to file application for revision against an interlocutory order. With regard to ground no. 2, it was Mr. Yoyo's argument that, the appellant was notified as per paragraph 4 of the appellant's affidavit where he averred that, on 18th March, 2015, while he was in court following the documents for appeal purposes, he was notified by the court clerk of the status of the case (pages 7 - 8) and that the court reasoned that if he was in court on the date of hearing he was not prejudiced. But when Mr. Yoyo was prompted by the Court as to what the law provides on such notices, he seemed to concede that the law requires a party to be duly notified of the date of hearing and delivery of ex-parte judgment but not to be notified by the court clerk. On the issue of denial of the right to be heard raised in ground no 3/ Mr. Yoyo admitted that it was a constitutional right but, he added, such right was not without responsibility. He elaborated that, the appellant was given a right to be heard but he did not give any sufficient reason for the absence. In rejoinder, Mr. Materu contended that, the issue of summons was a statutory obligation and that it did not depend on the circumstances. That, in this case there were no summons issued to the appellant. He argued that, the irregularity raised is sufficient to warrant nullification of judgment. He, lastly, prayed

to the Court to allow the appeal. We have considerably examined the grounds of appeal and the record of appeal and weighed the rival submissions of the learned advocates. We think, the main issue for our determination is whether the appellant was issued with notice of ex-parte hearing and ex-parte judgment. Admittedly, this matter has a chequered history as it passed through ups and downs from its institution as was hinted earlier on. The issue of notification is, in our view, two-fold. Firstly, the notice of ex-parte hearing and secondly, the notice of the date of ex-parte judgment. With regard to the issue whether appellant was notified of the ex- parte hearing, there are two rival versions. Whereas the appellant maintains that he had no notice, the respondent maintains that he was made aware by the court clerk that the case was proceeding ex-parte on the same date, 18th May, 2018. Much as it is crystal clear that there were several courts7orders for the appellant to file WSD, it appears that there was no summons to appear or file WSD issued to the appellant as per Orders V rule 1 (a) or VIII rule 1 (1) and (2) of the CPC. As such, he could not be in a position to know what was going on in the court. Order V rule 1 (a) of the CPC provides as follows: 1. When a suit has been duiy instituted, a summons may be issued to the defendant at the time when the suit is assigned to a

specific Judge or magistrate pursuant to the provisions o f ruie 3 of Order IV - (a) to appear and answer the claim on a day to be specified therein (herein after referred to as a summons to appear); Equally, Order VIII rule 1 (1) also provides: "Where a summons to appear has been issued the defendant may, and if so required by the court, within seven days before the first hearing present a written statement o f his defence/' Order VIII rule 1 (2) of CPC provides for summons to file WSD as follows: "Where a summons to fife a defence has been issued and the defendant wishes to defend the suit, he shall, within twenty-one days o f the date o f service o f the summons upon him, present to the court a written statement o f defence " In relation to the issue whether the appellant was notified on the date of ex-parte hearing, it is clear that the court is empowered to adjourn the suit for ex-parte hearing if the defendant fails to appear as per Order IX rule 4 of the CPC. Ordinarily, if this happens, the defendant is required to be notified. Of course, we are mindful that, the learned counsel for the respondent was adamant that the appellant was aware of the status of the case as he was told by the court clerk that the hearing of the case was proceeding ex-parte as per his averment in his affidavit and that had he acted on that information, he could not have been in this state

of affairs. Nevertheless, when the counsel for the respondent was prompted by the Court if that was the procedure, he, though hesitatingly, said that it was not. We think he was right. Looking at the provisions of Order XX rule 1 of the CPC together with the authorities we have cited above, we find that they guide us differently. They do not provide for exception in as far as the requirement of notification be it on the date of ex-parte hearing or the date of delivery of judgment is concerned; or that in certain circumstances, such requirement can be dispensed with. In our view, much as the respondent relied on the so-called information availed to the appellant through the court clerk, we do not find that such information could be equated to notice within its meaning of the law. Assuming that the appellant was given such information, it did not suffice as it is not among the modes of notice or summons recognized by law. In any case, it was not even supported by the said court clerk as no affidavit to that effect from him was produced in court. We think, a formal notification of the ex-parte hearing was required to be issued to the appellant. Failure to do so, it prejudiced him. With regard to the 2nd limb of complaint, we note that after the ex- parte hearing was completed on 18th March, 2015, the matter was scheduled for ex-parte judgment on 6th May, 2015. There was,

however, no order issued relating to notification to the appellant. But what does the law provide in relation to judgments? Order XX rule 1 of the CPC provides that when the case is heard, before the delivery of judgment, the parties must be notified. The said provision states: "The court after the case has been heard, shall pronounce judgment In open court, either at once or on some future day, o f which due notice shaii be given to the parties or their a d v o c a te [Emphasis added] This provision is couched in mandatory terms for the notification to the parties in the proceedings if the judgment is not delivered at once after the case has been heard. This implies that, notification is required even where the matter was ruled to be heard ex-parte - See: Cosmas construction Co. Ltd (supra). In this case, as was summitted by Mr. Materu, the appellant was not in attendance when the matter proceeded ex-parte and there is no proof that he was served with a copy of notice of delivery of the ex-parte judgment. However, according to the above cited authority, the appellant ought to have been notified regardless of whether he had no right of audience following the court's order to proceed ex-parte dated 25th February/ 2015 against him. As was hinted earlier on, this stance was taken in the case of Cosmas Construction Co. Ltd (supra), where it was stated that: "A party who fails to

enter appearance disables himself from participating when the proceedings are consequently ex-parte, but that is the furthest extent 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 judgment is delivered so that he may, if he wishes attend to take it as certain consequences may follow..." (Emphasis added) See also: the Court's decisions in Abutwalib Musa Msuya and 2 Other v. Capital Breweries Ltd and 2 Others, Civil Revision No. 2 of 2012 (Unreported) and Awadhi Idd Kajass v. Myfair Investment Ltd, Civil Application No. 281 of 2017 [2020] TCA 181 (9 April 2020) TanzLII. The importance of notifying the party of the date of delivery of judgment even where the matter was heard ex-parte is to enable such party, if dissatisfied with the decision, to take an immediate step in view to pursuing his rights in time and thus avoiding losing his rights; or using unnecessary time and expensive process. See also: Cosmas Construction Co. Ltd (supra). In the circumstances, we agree with the appellant that indeed, he was not served with notice of the date of ex-parte judgment. Failure to serve him such notice was a fatal infraction he was prejudiced as he could not be in a position to know what took place for him to take the necessary action if that need arose. This ground is therefore

allowed. As a way forward, like it is in the present appeal, in the case of Abutwafib Musa Msuya (supra) where the matter was marred with irregularities, incorrectness and impropriety in the proceedings based on among others, failure to notify the parties on the date of delivery of the ex-parte judgment the Court quashed and set aside all the proceedings of the impugned judgment and ordered for the matter to be heard inter- partes before another Judge. In the final analysis, we find that the High Court Judge erroneously found that there were no reasons to justify and allow application for setting aside the ex-parte judgment and decree. We, therefore, find that the appeal is meritorious and we allow it. As a way forward, we invoke our revisional jurisdiction under section 4 (2) or the AJA and quash the proceedings and decisions of both trial 15 and High Court and order that the matter should be heard afresh before another magistrate in accordance with the law. The appellant is to have his costs. DATED at ARUSHA this 28th day of February, 2025. R. K. MKUYE

JUSTICE OF APPEAL S. M. RUMANYIKA

JUSTICE OF APPEAL G. J. MDEMU

JUSTICE OF APPEAL The Judgment delivered this 4th day of March, 2025 in the presence of Mr. Mitego Methusela holding brief for Mr. John Materu, learned counsel for the Appellant and Mr. Daniel Lyimo holding brief for Mr. John Yoyo, learned counsel for the Respondent vide video link from the High Court of Tanzania at Arusha, is hereby certified as a true copy of the original.