Automated Summary
Key Facts
Dangote Industries Ltd Tanzania (Appellant) failed to file a written statement of defense in Civil Case No. 176 of 2019, leading to an ex parte judgment on January 2, 2020. Warnercom (T) Limited (Respondent) objected that the appeal was invalid as ex parte judgments are not appealable. The court ruled the preliminary objection meritorious, dismissing the appeal with costs, citing procedural requirements in the Civil Procedure Code (CPC) that require setting aside ex parte judgments before appealing.
Issues
The primary issue was whether the Appellant had the legal standing to appeal an ex parte judgment passed by the Resident Magistrate's Court, or if the correct remedy was to first apply for the judgment to be set aside under Order IX rule 13(1) of the Civil Procedure Code (CPC). The Respondent argued that an appeal against an ex parte judgment is not permissible and that the Appellant's failure to file a written statement of defence or seek an extension of time rendered the appeal incompetent. The Appellant countered by citing section 70(2) of the CPC and legal precedents to assert that an appeal was a valid option.
Holdings
The court upheld the Respondent's preliminary objection, ruling that the Appellant lacked the legal standing to appeal the ex parte judgment. The decision emphasized that under the Civil Procedure Code (CPC), an ex parte decree must first be set aside by the trial court under Order IX rule 13(1) before an appeal can be pursued. The judge cited precedents including Managing Director of NITA Corporation v Emmanuel Bishanga [2005] TLR 376 and Pangea Minerals Ltd v Petrofuel (T) Limited (2020), which affirmed that setting aside an ex parte decree is the mandatory first step. Section 70(1) of the CPC was interpreted as subject to express provisions like Order IX rule 13(1), which prioritize procedural remedies. The appeal was dismissed with costs to the Respondent.
Remedies
- Costs were ordered to be paid to the Respondent, Warnercom (T) Limited, as part of the court's ruling upholding the preliminary objection and dismissing the appeal. The court determined that the Appellant lacked the legal standing to appeal the ex parte judgment, leading to the costs being awarded to the Respondent.
- The Commercial Appeal No. 1 of 2020 is hereby dismissed with costs to the Respondent, Warnercom (T) Limited, as the preliminary objection raised by the Respondent was upheld by the court. The court found that the Appellant had no locus to appeal against the ex parte judgment and that the proper remedy was to apply for the setting aside of the ex parte decree first.
Legal Principles
The court emphasized that procedural rules must be followed in accordance with their intended purpose, even if technical compliance is possible. It held that the correct remedy for an ex parte judgment is to first apply to set it aside under Order IX rule 13(1) of the Civil Procedure Code before pursuing an appeal, rejecting the Appellant's argument that an appeal was a concurrent remedy.
Precedent Name
- The Managing Director of NITA Corporation v Emmanuel Bishanga
- Jaffari Sanya & Another v Salehe Sadiq Osman
- Tanzania Breweries Ltd v Anthony Nyingi
- Peter Keasi v Director Mawio Newspaper and Another
- Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
- Pangea Minerals Ltd v Petrofuel (T) Limited and 2 Others
Cited Statute
- Civil Procedure Code
- Interpretation of Laws Act
Judge Name
Deo John Nangela
Passage Text
- According to the earlier decision of the Court of Appeal in the case of Jaffari Sanya & Another v Salehe Sadiq Osman, (supra) (which also the latter decision of the Court of Appeal referred to), the Court of Appeal, (Ramadhani, JA (as he then was), while referring to Order XI rule 14 of the Civil Procedure Decree, which is equivalent of Order IX rule 13 of the CPC, was emphatic that: "...First, Order XI rule 14 is the only provision specifically and singularly for setting aside an ex parte decree .... In that case, it is our considered opinion that, that provision should be invoked first and foremost .... It is our settled view that one should only come to this Court as a last resort after exhausting all available remedies...."
- Section 70(1) of the CPC provides: "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed by a court of a resident magistrate or a district court exercising original jurisdiction."
- In conclusion, the Court held: "...the preliminary objection filed is meritorious and should be upheld. In the upshot, the objection is hereby upheld and the Commercial Appeal No. 1 of 2020 is hereby dismissed with costs to the Respondent."