Zakaria Maseke
Member
- Apr 26, 2022
- 64
- 98
Issue: Whether ex parte judgment can be appealed against without first attempting to set it aside?.
By zakariamaseke@gmail.com
Advocate Candidate - LST.
Umeshtakiwa alafu hujatokea Mahakamani, kesi imesikilizwa upande mmoja (exparte) na hukumu imetolewa dhidi yako (umeshindwa kesi) unafanyaje?
Kuna remedies mbili:
1: Kukata rufaa au
2: Kuomba ku set side (kutengua) ile order iliyoamuru kesi ifanyike upande mmoja ili mrudi kusikilizwa upya na wewe ambaye hukuwepo upate haki ya kusikilizwa. (Kumbuka inabidi utoe sababu za msingi ulikuwa wapi?)
Sasa, hizo remedies zina mazingira yake, huwezi kuzitumia kwa pamoja au muda wowote unavyotaka. Mfano, ukakata rufaa na hapo hapo unaomba ku set aside!? Ni makosa makubwa, huwezi kuendesha farasi wawili kwa wakati mmoja.
Pia kuwa makini, ujue ipi inatakiwa kutangulia na katika mazingira gani? Maana ukichagua kuanza na moja nyingine inakufa.
Sitaingia ndani sana kuelezea ex-parte judgement, lengo langu kuu nataka kujibu swali la je, unaweza kukata rufaa kupinga hukumu ya aina hiyo (ex-parte) kabla hujaomba kwanza itenguliwe (set aside)?
The procedure for setting aside an ex parte judgment in both the High Court and subordinate courts is set out under Order IX, Rule 9 of the CPC. Wengine wana cite Order IX rule 13 (Be careful with the enabling provision here)
Now, there are two conflicting school of thoughts. The Court of records (High Court and Court of Appeal) have delivered conflicting decisions on the remedy against ex-parte Judgement.
1: FIRST SCHOOL OF THOUGHT
The first school of thought holds that an aggrieved party cannot appeal or file revision against an ex-parte Judgement, summary or default Judgement without applying first to set aside an exparte judgement before the trial court/tribunal.
Judges in this school argue that, once an ex parte or summary or default judgment is entered, an aggrieved party should not go to the highest court on appeal or revision unless he first attempts to set it aside, or until all alternative remedies have been made in the lower court.
That, the appellant must first exhaust the alternatives or all remedies available in the lower (trial) courts/tribunal before filing an appeal or revision.
This means that, a person should first apply to set aside ex-parte Judgement before resorting to appeal or revision. Short of that, it renders the appeal pre-mature hence incompetent.
Soma kesi zifuatazo:
- Benjamin Nkwera v. Hurbert A Wayotile Misc. Land Appeal no. 10, 2020, HC., by His Lordship Mlyambina, J.
- Regional Manager TANROADS Lindi v. DB Shapriya, Civil Appeal No. 86 of 2010, CAT (unreported).
- National Investment Co. Ltd and Another v. Public Service Pensions Fund (PSPF) and 6 Others, Civil Application No. 154 of 2012, CAT (unreported).
- Integrated Property and 2 Others v. The Company for Habitat and Housing in Africa, Civil Appeal No. 107 of 2015, CAT
(unreported).
- Yara Tanzania Limited v. DB Shapriya and Company Limited, Civil Appeal No. 245 of 2018, CAT (Unreported).
2: SECOND SCHOOL OF THOUGHT:
The second school of thought maintains that, the right to appeal against exparte judgement is automatic and is available both to the defendant (respondent) as well as to the plaintiff (applicant).
If a party is aggrieved with the ex-parte decision, there is a right to appeal. S. 70(2), CPC.
However, THERE CANNOT BE TWO ACTIONS AT THE SAME TIME, ONE ACTION OF APPEALING AGAINST EX-PARTE JUDGEMENT AND ANOTHER ACTION MOVING THE COURT TO SET ASIDE EX-PARTE JUDGEMENT.
If the defendant wishes to set aside an ex parte judgement (i.e. he's challenging the order of the trial court to proceed ex parte, (there is a condition). The law require him to first apply to set aside an ex parte judgement before appealing against it. Upon refusal, then the right to appeal will be available to him/her. (Because, the appellate court can not consider the reason for your non appearance at the hearing of the appeal stage).
So it depends, on wether the defendant (respondent) is contesting the decision or order by the trial court to proceed ex parte (i.e he wish to set aside an exparte judgement so that he can be afforded right to be heard) or he is challenging the correctness of the decision itself (i.e. he doesn’t need to set aside an ex parte judgement).
If the defendant is challenging the correctness (merit) of the decision itself, the right to appeal is automatic. There will be no any condition. i.e. he can appeal against exparte judgment without first attempting to set it aside. Because the law does not compel an aggrieved party (the defendant) to first apply to set aside an ex parte judgement before appealing against it, provided that he is not interested to challenge the order to proceed ex parte.
To the plaintiff, no any condition. The right to appeal is always automatic. The law does not require the plaintiff to first apply to set aside an ex parte judgement before appealing against it.
Most recent case kabisa kwenye hii position ni Dangote Industries Ltd Tanzania v. Warnercom (T) Ltd, Civil Appeal no. 13 of 2021, the Court of Appeal made it clear 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 judgment.”
So long as the appellant or defendant or respondent is not faulting (contesting) the decision (the findings) of the court to proceed ex parte but rather the correctness of the decision itself, then the right to appeal against ex parte judgement is automatic.
Soma pia kesi zifuatazo:
- - Jaffari Sanya & Another v Salehe Sadiq Osman, Civil Appeal No. 119 of 2014, CA, unreported.
- Pangea Minerals Ltd v. Petrofuel (T) Limited and 2 Others, Civil Appeal No. 96 of 2015, CA, unreported.
And Finally, Dangote Industries Ltd Tanzania v. Warnercom (T) Ltd, Civil Appeal no. 13 of 2021, CA, unreported.
SO, THE MATTER IS NOW SETTLED.
-------MWISHO-------
Imeletwa kwako nami,
Zakaria Maseke,
Advocate Candidate,
(0754575246 WhatsApp),
Unaruhusiwa kushare uwezavyo ila usibadili content.
By zakariamaseke@gmail.com
Advocate Candidate - LST.
Umeshtakiwa alafu hujatokea Mahakamani, kesi imesikilizwa upande mmoja (exparte) na hukumu imetolewa dhidi yako (umeshindwa kesi) unafanyaje?
Kuna remedies mbili:
1: Kukata rufaa au
2: Kuomba ku set side (kutengua) ile order iliyoamuru kesi ifanyike upande mmoja ili mrudi kusikilizwa upya na wewe ambaye hukuwepo upate haki ya kusikilizwa. (Kumbuka inabidi utoe sababu za msingi ulikuwa wapi?)
Sasa, hizo remedies zina mazingira yake, huwezi kuzitumia kwa pamoja au muda wowote unavyotaka. Mfano, ukakata rufaa na hapo hapo unaomba ku set aside!? Ni makosa makubwa, huwezi kuendesha farasi wawili kwa wakati mmoja.
Pia kuwa makini, ujue ipi inatakiwa kutangulia na katika mazingira gani? Maana ukichagua kuanza na moja nyingine inakufa.
Sitaingia ndani sana kuelezea ex-parte judgement, lengo langu kuu nataka kujibu swali la je, unaweza kukata rufaa kupinga hukumu ya aina hiyo (ex-parte) kabla hujaomba kwanza itenguliwe (set aside)?
The procedure for setting aside an ex parte judgment in both the High Court and subordinate courts is set out under Order IX, Rule 9 of the CPC. Wengine wana cite Order IX rule 13 (Be careful with the enabling provision here)
Now, there are two conflicting school of thoughts. The Court of records (High Court and Court of Appeal) have delivered conflicting decisions on the remedy against ex-parte Judgement.
1: FIRST SCHOOL OF THOUGHT
The first school of thought holds that an aggrieved party cannot appeal or file revision against an ex-parte Judgement, summary or default Judgement without applying first to set aside an exparte judgement before the trial court/tribunal.
Judges in this school argue that, once an ex parte or summary or default judgment is entered, an aggrieved party should not go to the highest court on appeal or revision unless he first attempts to set it aside, or until all alternative remedies have been made in the lower court.
That, the appellant must first exhaust the alternatives or all remedies available in the lower (trial) courts/tribunal before filing an appeal or revision.
This means that, a person should first apply to set aside ex-parte Judgement before resorting to appeal or revision. Short of that, it renders the appeal pre-mature hence incompetent.
Soma kesi zifuatazo:
- Benjamin Nkwera v. Hurbert A Wayotile Misc. Land Appeal no. 10, 2020, HC., by His Lordship Mlyambina, J.
- Regional Manager TANROADS Lindi v. DB Shapriya, Civil Appeal No. 86 of 2010, CAT (unreported).
- National Investment Co. Ltd and Another v. Public Service Pensions Fund (PSPF) and 6 Others, Civil Application No. 154 of 2012, CAT (unreported).
- Integrated Property and 2 Others v. The Company for Habitat and Housing in Africa, Civil Appeal No. 107 of 2015, CAT
(unreported).
- Yara Tanzania Limited v. DB Shapriya and Company Limited, Civil Appeal No. 245 of 2018, CAT (Unreported).
2: SECOND SCHOOL OF THOUGHT:
The second school of thought maintains that, the right to appeal against exparte judgement is automatic and is available both to the defendant (respondent) as well as to the plaintiff (applicant).
If a party is aggrieved with the ex-parte decision, there is a right to appeal. S. 70(2), CPC.
However, THERE CANNOT BE TWO ACTIONS AT THE SAME TIME, ONE ACTION OF APPEALING AGAINST EX-PARTE JUDGEMENT AND ANOTHER ACTION MOVING THE COURT TO SET ASIDE EX-PARTE JUDGEMENT.
If the defendant wishes to set aside an ex parte judgement (i.e. he's challenging the order of the trial court to proceed ex parte, (there is a condition). The law require him to first apply to set aside an ex parte judgement before appealing against it. Upon refusal, then the right to appeal will be available to him/her. (Because, the appellate court can not consider the reason for your non appearance at the hearing of the appeal stage).
So it depends, on wether the defendant (respondent) is contesting the decision or order by the trial court to proceed ex parte (i.e he wish to set aside an exparte judgement so that he can be afforded right to be heard) or he is challenging the correctness of the decision itself (i.e. he doesn’t need to set aside an ex parte judgement).
If the defendant is challenging the correctness (merit) of the decision itself, the right to appeal is automatic. There will be no any condition. i.e. he can appeal against exparte judgment without first attempting to set it aside. Because the law does not compel an aggrieved party (the defendant) to first apply to set aside an ex parte judgement before appealing against it, provided that he is not interested to challenge the order to proceed ex parte.
To the plaintiff, no any condition. The right to appeal is always automatic. The law does not require the plaintiff to first apply to set aside an ex parte judgement before appealing against it.
Most recent case kabisa kwenye hii position ni Dangote Industries Ltd Tanzania v. Warnercom (T) Ltd, Civil Appeal no. 13 of 2021, the Court of Appeal made it clear 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 judgment.”
So long as the appellant or defendant or respondent is not faulting (contesting) the decision (the findings) of the court to proceed ex parte but rather the correctness of the decision itself, then the right to appeal against ex parte judgement is automatic.
Soma pia kesi zifuatazo:
- - Jaffari Sanya & Another v Salehe Sadiq Osman, Civil Appeal No. 119 of 2014, CA, unreported.
- Pangea Minerals Ltd v. Petrofuel (T) Limited and 2 Others, Civil Appeal No. 96 of 2015, CA, unreported.
And Finally, Dangote Industries Ltd Tanzania v. Warnercom (T) Ltd, Civil Appeal no. 13 of 2021, CA, unreported.
SO, THE MATTER IS NOW SETTLED.
-------MWISHO-------
Imeletwa kwako nami,
Zakaria Maseke,
Advocate Candidate,
(0754575246 WhatsApp),
Unaruhusiwa kushare uwezavyo ila usibadili content.
