IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
MOSHI DISTRICT REGISTRY
AT MOSHI.
Misc. Land Application No. 38 of 2022
(C/F Application No. 97 of 2017 of the District Land and Housing
Tribunal for Moshi at Moshi)
ABBAS KASIMU KADUMA ……………………………1ST APPLICANT
LUCIA JUMA MALIPULA ……………………………. 2ND APPLICANT
VERSUS
AUGUSTINO JAPHET MREMA ……………………. RESPONDENT
RULING
28.02.2023 & 03.03.2023
SIMFUKWE, J.
Before this court, is an application for extension of time to file Revision
against the ex parte decision of the District Land and Housing Tribunal in
Application No. 97 of 2017 delivered on 15th day of October,2020. The
application has been filed under section 14(1) of the Law of
Limitation Act Cap 89, R.E 2019 and any other enabling law.
The application is accompanied by affidavits of both applicants and an
affidavit deponed by one Fredrick Kasimu Kaduma (1st applicant’s brother
and 2nd applicant’s mother). The Respondent through his counter affidavit
resisted the application. He also raised four grounds of Preliminary
Objections to the effect that:
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1. The application is bad in law for it is premature filed against
an ex parte judgment. (sic)
2. The Revision lacks merit for it has been filed before
exhaustion of other court remedies including application of
setting aside ex parte order.
3. The application is bad in law for it lacks foundation as the
Tribunal judgment followed all due process thus no
procedural impropriety.
4. The affidavit of Fredrick Kasimu Kaduma is bad in law for
there are paragraphs not verified under the verification
clause.
Hearing of the preliminary objections was by way of written submissions.
The applicants were unrepresented while the respondent enjoyed the
service of Mr. L. Mashabala, learned counsel.
Mr. Mashabala on the outset opted to submit on the first and second
grounds of objections and dropped the last two grounds of objection.
Submitting on the first point of objection the respondent submitted that
under Order IX Rule 9 of the Civil Procedure Code, Cap 33 R.E
2022, the remedy available against an exparte judgment is to file an
application to set aside the same. Thus, the applicants ought to exercise
such remedy before resorting to the high court to challenge the judgment
which was entered ex parte. He made reference to the case of Moshi
Textile Mills vs de Voest [1975] LRT 17 to buttress his position.
The learned counsel insisted that since the applicants failed to appear and
defend their case before the trial Tribunal, being aggrieved with that
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decision, they ought to apply for setting aside the exparte judgment and
not to apply for revision before this court.
On the second point of objection, the learned counsel argued that, the
application for revision lacks merit for it has been filed before exhaustion
of other remedies including application for setting aside exparte order as
provided for under Order IX Rule 9 of the Civil Procedure Code
(supra). The learned counsel referred to the case of Caritas Kigoma vs
KG Dewsi Ltd [2003] TLR 420 in which the Court of Appeal observed
that:
“While reason for failure to appear on the date of hearing
the case is relevant to an application to set aside an exparte
judgment, it is irrelevant to an application for extension of
time.”
In addition, Mr. Mashabala made reference to the case of Harsh Energy
(T) Ltd vs Khamis Maganga, Civil Appeal No. 181 of 2016 in which
the Court of Appeal held that:
“It is apparent from the reproduced rule that the remedy available
to a party who is aggrieved by a default judgment passed by the
trial court is to apply to set it aside.”
The learned counsel went further by citing the case of Yara Tanzania
Limited vs DP Shapriya and Company Limited, Civil Appeal No.
245 of 2018 in which the Court of Appeal underscored that:
“To recap, it is now settled that when a party is aggrieved with an
exparte, summary or default judgment of the High Court, he must
first exhaust the alternatives or remedies available in the High Court
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before coming to this court on revision or appeal. If this is not done,
the revision or appeal to the court will be rendered misconceived
and prone to be struck out.”
Mr. Mashabala also condemned the applicants for adducing in their
affidavits the reasons for failure to appear on the date of hearing which is
irrelevant to this application since they were required to account for days
of delay to file the application. He opined that, since the applicants did not
exhaust the remedies against the ex parte judgment then, this application
is incompetent and it should be dismissed with costs.
In his final remarks, Mr. Mashabala averred that this application should be
dismissed with costs since the courts as well as tribunals are required to
promote compliance of laid down procedures which govern suits,
application and proceedings.
In their reply, the applicants adopted the contents of their counter
affidavit. Responding to the first limb of preliminary objection, the
applicants did not dispute the fact that the only remedy to those aggrieved
with an ex parte judgment is to make an application to set aside such ex
parte judgment as per Regulation 11(2) of GN 174 of 2003.
They contended that, paragraph 26 and 27 contained in the affidavit of
the 1st applicant states that on 18/12/2020 after discovering that he was
out of time, he filed an application for extension of time to set aside the
exparte judgment. However, the same could not be finalized due to
biasness and poor handling of the case by the presiding Chairman whom
after being told by the 1st applicant that he had no trust in him, the matter
was withdrawn on 20/09/2021 instead of reassigning it to another
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Chairman. As a result, he filed an application for extension of time to file
revision before this court. The applicant was of the view that the remedies
before the trial tribunal were exhausted as per paragraph 28 of the 1st
applicant’s affidavit. That, after the denial of the said application, he
decided to file another application before the High Court.
The applicants referred to paragraphs 4 and 5 of the affidavit of one
Fredrick Kasimu Kaduma who stated that due to the sickness of the 1st
applicant he was sent to inform the tribunal about that though his report
was not indicated in the record.
Also, the applicants referred to paragraph 6,7, 8 and 9 of the 2nd
applicant’s affidavit and argued that the allegations that the 1st applicant
didn’t want to defend himself were not true and that the tribunal ordered
the defence to close their case while the 1st applicant was not present and
was reported sick.
It was further submitted that the 1st applicant was condemned unheard
despite the glaring evidence of the attendance and participation in the
case since the 2nd applicant had no authority to represent the 1st Applicant.
Hence, the tribunal had acted illegally with material illegality as per section
79(1) (c) of the Civil Procedure Code (supra).
It was elaborated that an act of closing defence case without hearing the
parties is a nullity and it was in violation of basic fundamental
constitutional right to be heard as per the case of Christian Makondoro
vs The Inspector General of Police and Attorney General, Civil
Appeal No. 40 of 2019.
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In conclusion, the applicants prayed the preliminary objections to be
overruled and the application be heard on merits.
I have very well considered the affidavits and the rival submissions for and
against the raised objections. From the raised objections, the contentious
issue is whether this application is bad in law for being filed
prematurely before exhaustion of available remedies before the
trial tribunal?
The learned counsel for the respondent was of the opinion that an
application for extension of time to file revision is unmaintainable since
the applicant had not exhausted the available remedy of setting aside the
exparte judgment. The applicants concurred that the remedy for the party
who is aggrieved by an ex parte judgment is to file application to set aside
that judgment. However, they opined that the 1st applicant was
condemned unheard as he was reported sick. Moreover, it has been
alleged that there was an application which was filed but it was marked
withdrawn after the applicants had informed the trial chairman that they
had no trust in him. Thus, the tribunal acted illegally with material
irregularity.
I join hands with both parties that the available remedy against an ex
parte judgment is for the aggrieved party to file an application to set aside
the impugned ex parte judgment. This is in accordance with Regulation
11(2) of Land Disputes Courts (The District Land and Housing
Tribunal), GN No. 174 of 2003.
However, an application for revision should not be used alternatively with
an application to set aside ex parte judgment. These are two different
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things. Revisional powers in land matters are governed by section
43(1)(b) of the Land Disputes Courts Act, Cap 216 R.E 2019 and
not section 79(2) of the Civil Procedure Code as propounded by the
applicant. As a matter of reference section 43(1)(b) (supra) reads:
43.-(1) In addition to any other powers in that behalf conferred upon
the High Court, the High Court-
“May in any proceedings determined in the District Land and
Housing Tribunal in the exercise of its original, appellate or
revisional jurisdiction, on application being made in that
behalf by any party or of its own motion, if it appears that
there has been an error material to the merits of
the case involving injustice, revise the proceedings and
make such decision or order therein as it may think fit.”
Emphasis added
In the case of Ruth Makaranga vs Salum Ayub, Civil Application
No.363 of 2021, [2022] TZCA 562 while elaborating the concept of
Revisional powers, the Court of Appeal had this to say:
“It is trite law that revisional jurisdiction of the Court is
exercisable in matters which are not appealable to
the Court with or without leave or where the appellate
process has been blocked by a judicial process.” Emphasis
added
From the quoted provision above, the law is settled that an application for
revision is preferred where there is material irregularity which occasioned
injustice and where there is no room for an appeal.
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In the situation at hand, it seems the applicants are aggrieved by the ex
parte judgment which is not appealable. The available remedy to them
according to the facts of the case, was to apply for revision against the
impugned ex parte judgment. However, since the applicants were out of
time to file the said revision, they had to file the instant application for
extension of time to file revision. In the premises, I am of settled opinion
that the applicants were justified to file the instant application so that they
may be granted leave to file an application for revision out of time. The
provision of section 43(1)(b) of Land Disputes Courts Act (supra),
fits the circumstances of this case.
Having discussed as such, the two raised grounds of objection are
answered in a negative. Hence, I hereby overrule the preliminary points
of objections raised with costs. The application for extension of time to file
revision should proceed on merit.
It is so ordered.
Dated and delivered at Moshi this 3rd day of March, 2023
X
S. H. SIMFUKWE
JUDGE
Signed by: S. H. SIMFUKWE
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