Herman Omary Mganga vs Winnie Sheba Seme (Civil Appeal 368 of 2019) [2022] TZCA 775 (2 December 2022)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: NDIKA. J.A.. MAIGE. J.A.. And RUMANYIKA. J.A.) CIVIL APPEAL NO. 368 OF 2019 HERMAN OMARY MGANGA..................................................APPELLANT VERSUS WINNIE SHEBA SEME .................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Matupa, J.) dated the 11th day of August, 2019 in ( PC) Matrimonial Appeal No. 09 of 2017 JUDGMENT OF THE COURT 30th November, & 2n d December 2022 MAIGE, 3.A.: This appeal traces its genesis from the ex parte judgment of the Mwanza Urban Primary Court ("the trial court") dated 20th January, 2016 awarding the respondent herein a house on Plot No. 682 Block "B" Nyamanoro within the Mwanza city ("the suit property") as a distribution of the matrimonial property. Against the said judgment, the appellant applied for revision to the District Court of Nyamagana. The appellant's main complaint in the application was that, the trial court heard the matter ex parte without him being served with a summons to appear. At paragraph

10 of the affidavit in support of the application, the appellant deposed as follows: "10. The said Court proceeded to hearing without properly serving the Applicant with notice o f the same as the Applicant is a resident o f Nyamhongolo which residence is well known to the Respondent". In its ruling on revision, the District Court agreed with the appellant that, the decision of the trial court on division of the suit property in the absence of a decree for divorce was violative of section 114(1) of the Law of Marriage Act, 1971 ("the LMA"). It henceforth nullified the proceedings of the trial court and quashed the decision thereon. In turn, it directed for retrial. Aggrieved, the respondent appealed to the High Court on the following grounds:

1. That the District Court erred in law by ordering for retrial while the decision o f the trial court was proper.
2. The District Court erred in law in entertaining an improper application . In addressing the appeal, the High Court judge was guided by two issues. One, whether the trial court decided the case without effecting summons on the appellant. Two, whether the relief under section 160 of the LMA is predicated on a judicial dissolution of the relationship. In relation 2

to the first issue, the resolution of the High Court judge which appears at page 70 of the record of appeal was as follows: "The proceedings in the present case only show the the substituted service was ordered after the trial had commenced. Kulwa Daudi versus Rebeka [1985] TLR 116 is an authority for the proposition that substituted service may not be ordered where the respondent is known to be absent However, that was not a case under the rules, as it was tried under rule 14 o f the Civil Procedure Code. At any rate, had it occurred to the respondent that the procedure was not flawed, the recourse was under rule 30 o f the rules for the respondent to seek to set aside the decree . " On the second issue, the High Court Judge was of the view that, the claim for division of the suit property at the trial court was not based on section 114 (1) of the LMA but section 58 of the same. The reason being that, the respondent claimed the property not as matrimonial but her independently acquired property. It thus reversed the decision of the District Court. Unhappy with the decision of the High Court, the appellant instituted the appeal at hand. In the memorandum of appeal, he raised three 3

grounds. At the hearing however, the first two grounds were abandoned. As a result, the appeal remained with only one ground that: "The decree o f the trial court o f the purported distribution o f matrimonial property was erroneous as the same was not predicated upon a decree o f divorce/dissolution o f marriage." At the hearing before us, the appellant was represented by Mr. Chama Matata, learned advocate whereas the respondent appeared in person and without representation. As Mr. Matata was submitting on the ground of appeal, we invited him to address us whether in view of the complaint of the appellant at the District Court, revision was the appropriate remedy. Mr. Matata while conceding that, the complaint could have been dealt with at the trial court by way of an application for setting aside the ex parte decision, was of the contention that, the position of law on the issue is not settled. Being a layperson, the respondent could not make any relevant comment apart from insisting that, the appellant was duly served. We think, this being a legal issue which affects the jurisdiction of the District Court, it is imperative that, it should be determined first. It is common ground that, the hearing at the trial court proceeded ex parte 4

certainly under rule 23(a) of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules ("the Rules"). As rightly held by the High Court judge, a person aggrieved by such a decision may, under rule 30 (1) of the Rules apply to the trial court to have the ex parte judgment set aside. The provision reads as follows: "(1) Where a claim has been proved and the decision given against a defendant in his absence, the defendant may, subject to the provision o f any taw for the time being in force relating to the limitation o f the proceedings, apply to the court for an order to set aside the decision and if is satisfied that the summons was not duly served, or the defendant was prevented by any cause from appearing when the proceeding was called on for hearing, the court shall make an order setting aside the decision as against such defendant upon such terms as it shall think fit." In this case, the appellant, instead of making use of the recourse available at the trial court, instituted a superior proceeding to the District Court for revision complaining in substance that, his absence on the date of hearing was because he was not served. The High Court Judge, conscious of this position of law, observed at page 70 of the judgment that, 5

the recourse was for the appellant to apply to have the ex parte judgment set aside. To this extent, we fully concur with him. Having observed as such, we think, the High Court Judge was not expected to, as the District Court did, go into the merit of the decision of the District Court without considering its effect in the legality of the proceedings at the said court. The position of the law on that aspect is well settled. It is such that, a party to an ex parte decision who is aggrieved by the motion to proceed ex parte, cannot fault such decision in a higher court by way of appeal or revision before first attempting, at the court that pronounced the ex parte decision, to have the same set aside. He cannot as well combine, in the appeal or revision proceedings, as the case may be, both the complaints on the justification to proceed ex parte and the merit of the decision. Thus, in Dangote Industries Ltd Tanzania v. Warnercom (T) Limited, Civil Appeal No. 13 of 2021 (unreported) we observed: "It would appear to us to be the principle in the said authorities that, where the defendant intends to challenge both the order to proceed ex parte and the merit o f the findings in the ex parte judgment, he cannot challenge the merit o f the findings before 6

dealing with an application to set aside the ex parte judgment first. This principle is based on the long standing rule o f procedure that, one cannot go for appeal or other actions to a higher court if there are remedies at the lower court. He has to exhaust all available remedies at the lower court first". In this case, it is apparent that, the appellant, instead of applying for setting aside the ex parte judgment, challenged the same by way of a revision on account that, the hearing was conducted without him being served with the summons to appear. That in our view was quite wrong. For, as held in Jaffar Sanya & Another v. Salehe Sadiq Osman, Civil Appeal No. 119 of 2014 (unreported), the jurisdiction to set aside an ex parte judgment is exclusive to the court which pronounced the judgment. See also Pangea Minerals Ltd v. Petrofuel (T) Limited and 2 Others, Civil Appeal No. 96 of 2015 (unreported). The right to challenge the decision to the higher court may be available if only the complaints are limited to the merit of the decision. This is what we said in Dangote case (supra). In our view, therefore, the complaint at the District Court was brought prematurely and as such the District Court did not possess the requisite jurisdiction to deal with the issue by way of revision. The High

Court should have, having resolved the first issue to that effect, nullified both the proceedings and the ruling of the District Court without determining the correctness or otherwise of the merit of the said decision. In view of the foregoing, we invoke our revisional power under section 4(2) of the Appellate Jurisdiction Act and reverse the judgment of the High Court in respect to the second issue. We further quash the judgment and proceedings of the District Court for want of jurisdiction. We make no order as to costs in the circumstances. DATED at MWANZA this 1s t day of December, 2022. G. A. M. NDIKA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered on 2n d day of December, 2022 in the presence of the Mr. Chama Matata, learned counsel for the appellant and Ms. Winnie Sheba Seme, respondent in person, is hereby certified as a true copy of the original. Nl ^ C. M. MAGESA DEPUTY REGISTRAR COUTY OF APPEAL