THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

MOROGORO DISTRICT REGISTRY

MOROGORO

CIVIL APPEAL NO. 31 OF 2022

(Appeal Arising from District Court ofKiiombero atIfakara Misc. Application no. 18 of

2022)

MENDRAD OKOTA APPELANT

VERSUS

COSMAS CHUWA RESPONDENT

JUDGMENT

Date of Last OrderlS/12/2023

Date of Judgement 03/03/2023

MALATA,J

The present appeal traces its original from the decision of the District
Court for Kiiombero at Ifakara in Misc. Application no. 18 of 2022, the
appellant being aggrieved by an ex-parte judgement by the District Court
for Kiiombero appealed to this court armed with six grounds of appeal.

1. That the District Court erred in law and fact in not considering the
weight of reason.
2. That, since there was no proof of service to the appellant herein the
trial magistrate erred on point of Law and procedure thus seriously
faulting the appellant fundamental right to defend her case.

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 3. That, the District Court misdirected itself on facts to deny the
appellant the right to be heard.
4. That the trial Magistrate erred in law for the failure to set aside
exparte judgement on ground of illegality.
5. That the trial magistrate erred in law to condemn the appellant
herein to account for each day of delay in an application to set aside
exparte judgement.
6. The district court erred in law for failure to set aside exparte
judgement which was obtained without the appellant be notified on
the date of exparte judgement.

In nutshell, the plaintiff claims against the defendant for the payment of
TZS. Fifty-one million, nine hundred and eighty thousand, five hundred
(51,908,500) being amount due and loaned to the defendant by the
plaintiff, the plaintiff loaned the same on different occasions to the
defendant on promise that it be paid on 2019. It is alleged that; the
defendant has shown no interest in honouring the contractual obligations
of paying the outstanding amount despite several reminders from the
plaintiff.

When the matter came for hearing on 28/03/2022 at the District Court
neither the defendant nor his advocate appeared as such, the court
ordered for Exparte hearing thence the ex-parte judgement against the
appellant. Finally, the court ordered the appellant to pay 26,908,000,
interest on decretal sum from the date of instituting the suit up to the
date of the judgement at a commercial rate of 21%,and interest on court
rate to wit 12% on the whole decretal amount from the date ofjudgement
to full payment.

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Aggrieved by ex parte judgement, the appellant filed Misc. Civil
Application no. 18 of 2022 to set aside the application, the same was
dismissed for lack of sufficient reasons. The applicant has come before
this court for second bite challenging rejection of setting aside decision
based on afore stated grounds.

When this appeal came for hearing both parties were represented, the
appellant was represented by Mr. Kisawani, learned Counsel while the
respondent was represented by Mr. Mwakimatu, learned Counsel.

Mr. Kisawani for the appellant argued ground No 1 separately, while

conjoined grounds No. 2 and 3, and grounds No. 4 and 5, and ground No.
6 was argued separately.

Submitting on ground number one, the learned advocate stated that the
ground of sickness was watertight as there was proof that the appellant
fell sick and was getting medication from Good Samaritan Health Centre.
The document shows that the appellant attended hospital on 10/04/2022
and 19/05/2022. The ex-parte hearing was on 13/04/2022 and the
judgement was delivered on 05/05/2022.

In all the afore said dates the appellant was attending medication at Good
Samaritan Health Centre, thus the reason advanced sufficed the court to
set aside the ex-parte judgement. He further submitted that, there is no
evidence that the appellant attended clinic on 13/04/2022 but the fact
that he attended hospital on 10/04/2022 then impliedly the appellant was
still sick even on the hearing and judgement date. As such, the trial
Magistrate ought to have taken into consideration of the same and accord
weight. In support of his submission, he referred this court to the case of

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Adam Mohamedi Zuberi vs. Kulwa Mashaka, Civil Appeal no 175 of
2018 (unreported CAT) Where the court made a remark that, it may
include sickness and other unavoidable circumstances. The court ended

setting aside the exparte judgement. He thus invited the same wisdom
and pray this court to allow the appeal.

As to the second and third grounds of appeal, Mr. Kisawani submitted

that there was no proof of issuance of notice to the appellant on
proceeding against the appellant. It is on record that, on 28/03/2022 the
appellant was absent, and the trial court proceeded ex parte against him.
The records are silent on whether there was notice served to the appellant
to inform the appellant on the ex parte hearing. However, the court
proceeded ex parte on 28/03/2022 when the matter was set for hearing,
that is a fundamental irregularity. To cement his submission, he cited the
case of Kaiza Katamba Mwalugaja vs. Obby Sikuanguka
Mwampaja and Yono Auction Mart Ltd, Civil Appeal no. 7 of 2022,
HC Mbeya, at page 14 and 15 of the judgement there was a need for the
court to issue summons to the appellant that in default of appearance,
the court is required to issue notice of intention to proceed ex parte
against a party to a case.

The act of the court to proceed ex parte denied the appellant the right
to be heard, which is creature of the constitution under article 13(6)(a) of
United Republic of Tanzania,1977.

Though the appellant was required to convey information to the court

about his indisposition which wasn't done but the court was also required
to comply with law as afore submitted.

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As to the 4*'' and 5*'' grounds of appeal the counsel submitted that the
ex parte judgement needed to be set aside on the grounds of illegality
which touches the jurisdiction as court invoked wrong provision in
proceeding, with ex parte hearing as such, the court entertained the
matter without jurisdiction by citing Order 12 rule 4 of the Civil Procedure
Code (herein to be referred as''CPC".)

As to the last ground of appeal which is in line with paragraph 2 of the

affidavit. Mr. Kisawani submitted that, despite the fact that, the case was
heard ex parte, the court was required to notify the appellant on the
judgement date. This was not done thence occasioning injustice on the
appellant's side.

Failure to notify the appellant on the date of delivering ex-parte

judgement deprived the appellant's right of knowing the outcome of the
judgement. This was a fault on part of a trial court. Finally, he prayed
that, this court be pleased to allow appeal and set aside ex parte
judgement with costs.

In reply to the grounds of appeals, Mr. Mwakimatu learned counsel for

the respondent submitted that, it is a trite law that, when the appellate
court is determining the appeal resulted from the decision entered in the
exercise of court's discretionary power, it should not interfere with the
same except where it is proved that, when exercising its discretion powers
the lower court acted erroneously by either omitting or taking
consideration on irrelevant extraneous matters which ought not to have
been taken.

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He submitted that, this principle is gathered from the case of Urn Ham
Yung and Lim Trading Co. Ltd vs. Lucy Treseas Kristensen, Civil
Appeal No. 219 of 2019 (unreported) at pages 14 and 15 of the
judgement.: He further submitted that, the authority to set aside exparte
judgement is under Order IX rule 9 of the Civil Procedure Code, Cap.33
R.E.2019.

In response to 1^ ground of appeal raising reason for sickness,

Mr.Mwakimatu submitted that setting aside ex-parte judgement is the
court's discretion and has to be entertained judicially based on the reasons
adduced for non-appearance of the defaulting party. In the affidavit
before the trial court, the reason is captured under paragraph 3 with
attached annextures as the proof of the reason advanced for his non-
appearance.

The documents shows that the appellant was not admitted but he went
to take the blood pressure medicines. Annexture M02 indicates among
others that, he attended hospital on 15/12/2022 the date which is yet to
date. Further, the attached document doesn't indicate if the appellant was
admitted. Also, there is no document to prove that on 13/04/2022 the
appellant was at the hospital. The only document that come closer is that
of 10/4/2022 before the last order 13/04/2022. There is no document
proving that the appellant was sick on 28/03/2022 when ex-parte hearing
commenced.

As to the 2"^ and 3'"'' ground, the counsel submitted that the interpretation
of Order VIII rule 13, captures two scenarios, failure to file Written
Statement of Defence(WSD)and failure to enter appearance. The present
case is on failure to enter appearance on the date of hearing. The issue

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of proof of service doesn't arise here as the appellant was aware. The
effect of non-appearance is for the court to order ex parte hearing. The
learned counsel further submitted that, the case of Kaiza Katamba is
distinguishable as in the said case the respondent neither entered
appearance nor filed Written Statement of Defence (WSD) which is
different with the case at hand, parties herein the appellant filed plaint
and the respondent filed WDS therefore the appellant slept over his right
for his non-appearance, the court had no duty to issue notice under those
circumstances.

Regarding grounds the 4*^^ and 5^^ of appeal, Mr. Mwakimatu submitted
that, as to the illegalities raised, what matters is that there was ex parte
hearing following non-appearance of the appellant. There is no legal
requirement that the court has to cite the source it derives the authority
failure of which renders the proceeding a nullity. The appellant's averment
is an afterthought and has no connection to the issue at hand.

Replying to the 6^^ ground the learned counsel submitted that there is no
requirement of issuance of notice. The notice of judgement was served to
both parties including the appellant that the matter was coming for
judgement on 13/04/2022 form no 2A. Order V rule 20(2) of the CPC.
Finally, the learned counsel prayed for dismissal of the appeal with costs.

In the rejoinder submission, the learned counsel for the appellant

reiterated to the substantive submission and that the appellant was
prevented by valid reasons. As to the issuance of notice he submitted that
service of notice is one thing and awareness of the receipt of exparte
judgement is another thing.

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As on the issue of citing wrong provision under which the court exercised
its mandate, Mr. Kisawani submitted that, it is fatal and the same cannot
be served by the overriding principle. He prayed the appeal to be allowed.

Having heard the submission by the parties and read the court records of
the impugned decision, the issue for determination is whether the District
Court erroneously exercised its discretion powers in arriving to impugned
decision.

To start with, it is on record that, in the present case the parties had all
caused their pleadings to be filed in court and the matter was at the
hearing stage. When the matter was for hearing, the defendant, (the
appellant herein), defaulted appearance with no notice to court.

Having carefully considered the submission by the parties, the court

records and the impugned decision, the issue for determination is whether
the District Court exercised its discretion powers wrongly in arriving to
impugned decision.

Before ruling on the above posed issue, I find indebted to point the legal
principles in which this court will be guided with. A party who wants to
set aside an exparte judgement entered after his non-appearance during
hearing of the case is legally to invoke Order IX Rule 13 of the Civil
Procedure Code which provides that;

In any case in which a decree is passed ex parte against a

defendant, he may appiy to the court by which the decree was
passed for an order to set it aside; and ifhe satisfies the Court
that he was prevented by any sufficient cause from
appearing when the suit was caiied on for hearing, the court

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 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 shaii appoint a day for proceeding with the
suit: Provided that, where the decree is ofsuch a nature that it
cannot be set aside as against such defendant oniy it may be
set aside as against aii or any ofthe other defendants aiso.

The above cited provision, premises for options using the word "^May" to
apply for setting aside ex-parte judgement while subjected to production
of sufficient cause which prevented him from appearing in court on the
hearing date. This is done only where the affected party wants to be heard
on merits and have sufficient reasons for his non-appearance. The
appellant herein, opted to apply for setting aside the ex parte judgement
thus legally required to adduce sufficient reasons.

If the appellant wanted to challenge the findings of the exparte

judgement, the remedy available is to appeal against it. In this point, I
am guided by the court of appeal decision in the case of Pangea
Minerals Ltd vs. Petrofuei(T)Limited,^ Power Roads(T)Limited
And Lycopodium Tanzania Limited^ Civii Appeal NO. 96 of 2015,
where the court of appeal had these to say;

'We are aiso aware that the provisions ofOrderIX ruie 13 used the

word "may"^and appellants had two options to either apply to set

aside an ex parte judgment or appeal to this Court to challenge

findings ofthe trial

Page 9 of 15
Based on the above legal position, it becomes a condition precedent, that
the applicant must show that his non-appearance was with a good cause.

When the court is called upon to set aside the decision arrived in the
exercise of discretionary powers by the court, the applicant must
demonstrate and prove that, the lower court wrongly applied the facts or
principles thence arriving to a wrong decision prejudicing the applicant,
thus warranting interference by the appellate court.

In determining whether to interfere or not the appellate court is guided

fundamentally by, among others, the principles propounded in the case
of Lim Ham Yung and Lim Trading Co. Ltd vs. Lucy Treseas
Kristensen, Civil Appeal No. 219 of 2019 where the court of appeal
principled that;

We are also mindful thatgenerally the exercise ofdiscretion by

lower court can rarely be Interfered by a superior court. Such an
exercise can only be interfered with where itis dear that
the decision arrivedat wasa resultoferroneousexercise

of discretion through either the omission to take into

consideration relevant matters or taking into account
irrelevant matters and misdirecting itseif

Other principles are found in the cases of Republic vs. Donatus

Dominic @Ishengoma and6 Others^ CriminalAppeal No. 262 of

2018 (unreported), cited also in Credo Siwaie vs. Republic,

Criminal Appeal No. 417of2013(unreported)where the court of

appeal held that: -

Page 10 of 15
 "There are principles upon which an appeiiate Court can interfere

with the exercise ofdiscretion ofan inferior court or tribunal. These

general principles were set out In the decision ofthe East Court of

Appeal In Mbogo and Another Vs. Shah[1968]E.A. 93. And

these are: -

(I) Ifthe Inferior court misdirected Itself; or

(H) It has acted on matters on which It should not have

acted; or

(III) It hasfailed to take Into consideration matters which

Itshould have taken Into consideration,

And In so doing, arrived at a wrong conclusion."

It is therefore the duty of the appellant to demonstrate to court, how the

inferior court wrongly exercised its discretionary mandates.

It is with no iota of doubt that, to answer the above posed issue, this court
has to confine itself to re-evaluate the facts and principles used by the
trial court in arriving to the impugned decision. The facts which are solely
based on reasons for non-appearance of the appellant and not the
illegalities of the impugned decision. Should the appellant find aggrieved
by the finding of the exparte judgement, the available remedy was to
appeal based on above cited legal position.

Page 11 of 15
Therefore, this court will not deal with grounds and submissions touching
alleged illegalities of the impugned decision save for those touching
misapprehension of the given reasons for non-appearance.

In the first ground of the appeal, the appellant attacked the trial Court
decision that, it erred in law by failure to accord weight to the advanced
reasons for non-appearance by the appellant as contained in the affidavit.

In the affidavit the appellant deponed that, he felt sick thus failed to attend

hearing. However, none of the documents attached provides that, the

appellant was sick and got treatment at any hospital or Dispensary on the

respective dates. The dates which the appellant failed to appear thence

ex-parte hearing are 28/3/2022 and the judgment was delivered on

05/05/2022. None of the attached documents indicates that, the appellant

attended or was admitted in any of the Dispensary including Good

Samaritan Health Centre on the said dates. The attached documents

depict that, the appellant attended medication on 10/04/2022 and

19/05/2022. This court is also guided by the principles in the case of

PastoryJ. Bunonga Vs. Pius Tofiri, in Misc. Land application no. 12 of

2019 where Hon. Mr. Justice Rumanyika, J as he then was High court

Judge held that;

"Where it was on the balance ofprobabilities proved, sickness

has been good and sufficient ground for extension of time yes.
But with aii fairness the fact cannot be founded on mere

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 allegations. There always must be proof by the applicant that
he fell sick and for the reason of sickness he was reasonably
prevented from taking the necessary step within the prescribed
time.''

Having looked into the evidence on record, I am satisfied that, the lower
court correctly decided that, there was no sufficient reasons for non-
appearance on the respective dates. I, therefore rule that, this court has
no reason to interfere with the trial court's decision.

Regarding the 2"^^ and 3'^^ ground of appeal, it is gathered that, the same
is premised on the fact that, neither the respondent nor court did serve
the notice of hearing of the suit exparte.

The appellant did not cite any provision of the law imposing obligation to
the court to issue notice of hearing to a party who failed to appear on the
hearing date that the matter will proceed ex-parte. Such notice is only
required when exparte hearing proceed under Order VIII rule 14 of the
CPC where the defendant failed to file written Statement of defence. Rule

14 provides that;
"Where anyparty required to file a written statementofdefence

fails to do so within the specified period or where such period

has been extended In accordance with sub rule 3 ofrule 1, within

the period of such extension^ the court shall,, upon proof of

service and on oral application by the plaintiffto proceed ex parte,

fix the date for hearing the plaintiff's evidence on the claim"

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In the present case, the parties were at hearing stage and the appellant

failed to appear on the hearing date, the remedy is to proceed ex parte

against the defaulting party without notice as he was aware and he

deliberately decide not to appear and defend his interest. This is the spirit

of Order IX Rule 8 of the Civil Procedure Code, Cap.33 R.E.2019, where

more than one defendant fails to appear on the hearing date. The Rule

provides that,

"Where there are more defendants than one, and one or more of

them appear, and the others do not appear, the suit shall

proceed and the court shall,- at the time or pronouncing

judgment, make such order as it thinks fit with respect to the

defendants who do not appear-'

In that regard, grounds 2 and 3 fail.

As to grounds 4, 5 and 6 of appeal, this court find no need to dwell on it

as they deal with illegalities of the decision which can be pursued by
appealing against it as legally principled herein above.

Further, in applying to set aside an exparte judgement, the law requires

a defendant to comply with Order IX Rule 13 of the Civil Procedure Code
that is to applying to set aside the said judgement by assigning sufficient
cause which prevented him from appearing on the hearing date.

Page 14 of 15
 The appellant herein raised issues of illegalities of the decision, this court
is of the opinion that, illegalities are not one of the reasons required to be
adduced as per Order IX Rule 13 of the CPC. Illegalities can be considered
in an application for extension of time and not as good cause for non-
appearance on the hearing date. A party cannot fail to appear on the
hearing date and plead illegality of decision as good cause for his non-
appearance. This is not the gist of Order IX Rule 13 of the CPC.

As such, the only ground under consideration is ground 1 which touched

the reason for non-appearance, the rest including ground 2 is out of
context as it do not fall within reason for non-appearance as per Order IX
Rule 13 of the CPC.

Based ,on the re-evaluation of evidence and analysis of principles, I am

satisfied that, the appellant failed to demonstrate or show how the lower
court's decision was wrongly arrived, or omitted to take into consideration
relevant matters or took into account irrelevant matters thence

misdirecting itself. In view thereof, this appeal fails for want of merits.

Consequently, I hereby dismiss it with cost.

It is so ordered.

PAXED at MOROGORO this 03'"^ March 2023.

o
u

K.D
X
G. P. MAUATA

JUDG

03/03/2023

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