Shamsa Salim Hamduni vs The Administrator General & Another (Civil Appeal No.23 of 2023) [2025] TZCA 829 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, J.A., MASOUD. 3.A. And AGATHO. J.A.^ CIVIL APPEAL NO.23 OF 2023 SHAMSA SALIM HAMDUNI ..................................................... APPELLANT VERSUS THE ADMINISTRATOR GENERAL...................................... 1 st RESPONDENT HAMDUNI SALIM HAMDUNI........................................... 2 nd RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Dar es Salaam Sub-Registry at Dar es Salaam) (Mqonya, J.) dated the 14th day of February, 2020 in Miscellaneous Civil Application No. 506 of 2019 JUDGMENT OF THE COURT 30th July & 7th August 2025 AGATHO. J.A.: The appellant, Shamsa Salim Hamduni lodged this appeal challenging the decision of the High Court which denied her an order to set aside an ex-parte decision rendered in her absence and without notice. A brief background can be recapitulated as follows. It is on record that the appellant and the second respondent were co-administrators of the estate of the late Salim Hamduni Said, their father, by virtue of a i

Probate and Administration of Estate Cause No. 8 of 2010 of the High Court, Dar es Salaam Registry. Record depicts that the joint administration did not sail through smoothly hence the probate court ordered through a ruling dated 16/09/2014 for the first respondent to be appointed to assist and guide the appointed administrators in administration of the estate. As can be discerned from the record of appeal, things were not easy for the first respondent, so through Misc Civil Application No. 711 of 2017, she sought orders that the High Court revoke the appointment of the two administrators and appoint her to be the sole administrator. The application was struck out after having met strong objections by the appellant herein. It appears that later the first respondent preferred a fresh application (Misc Civil Application No. 671 of 2018) seeking similar orders. The record shows that the orders were subsequently granted ex- partewWh the effect of removing the appellant and the second respondent from the administration of the estate. That order did not amuse the appellant who quickly filed an application (Misc Civil Application No. 506 of 2019) to set aside the ex- parte order for reasons that she was neither served with the notice to appear on the hearing of such an application nor notified of the date for ruling. The court refused to believe that argument and went on to dismiss 2

the application with costs. The appeal at hand seeks to challenge that decision of refusing to set aside an ex-parte order. The grounds of appeal for the Court's consideration are as follows:

1. The trialjudge erred in iaw and in fact by holding that the appellant's advocate had appeared in the proceedings in Misc. Civil Application No 671 o f 2018
2. The trial judge erred in law and in fact by holding that since the appellant's advocate had appeared in the proceedings in Misc Civil Application No 671 o f 2018, the issue o f service o f the application cannot stand
3. The trialjudge erred in law and in fact by failing to hold that it was not right for the court to entertain the application ex parte without proof that the appellant was duly served
4. The trial judge erred in iaw and in fact by holding that non service o f the application was the only issue raised by the appellant in order to move the court to set aside the ex-parte ruling
5. The trialjudge erred in law and in fact by failing to hold that it was mandatory for the appellant to be notified o f the date the ex-parte ruling in Misc Civil Application No 671 o f 2018 was read.
6. The trial judge erred in law and in fact by failing to analyse all the issues raised by the appellant 3

When the appeal was called for hearing, Mr. Lusiu Peter, learned advocate appeared for the appellant whereas Messrs Rashid Mohamed Said and Swalehe Njoma both learned Senior State Attorneys represented the first respondent. And Mr. Ahmed El-maamry, learned advocate stood for the second respondent. We appreciate the abled submissions by the trained legal minds representing the parties. Certainly, we shall refer to the submissions, however, we will not reproduce them in verbatim. In determining this appeal, we shall focus on ground five of appeal regarding the failure to notify the appellant of the date of the ex-parte ruling because it is a critical point of law. In our view if found to have merit it will dispose of the matter. Submitting on ground five of appeal, Mr. Lusiu recited the appellant's complaint that she should have been given notice when the matter was set for ex-parte ruling as required by the law. To buttress his submission, he referred to us the case of Tropical Air (Z) Ltd v. Godson Eliona Moshi [2025] TZCA 175. In a candid reply, Mr. Mohamed conceded that the appellant was not notified of the date for ex-parte ruling. He added that the law requires that even if an application is heard ex-parte, the parties to be informed the date for ruling. It was his submission that the notice was not given. However as to the consequences of such omission, the learned senior

State Attorney had a different view. He contended that the case of Tropical Air (Z) (supra) is distinguishable because it was a main suit while in the present case it was an application. Mr. Mohamed beseeched the Court to consider the position in Awadhi Idd Kajass v. Mayfair Investment Limited [2017] TZCA 1221 where the Court instead of nullifying the proceedings it directed the High Court to deliver the judgment reserved on notice by the order given by the trial court according to the dictates of Order XX rule 1 of the Civil Procedure Code [Cap 33 R.E. 2023]. Mr. El-maamry on his turn had nothing more to add on the ground five of appeal than adopting the position of the first respondent. Mr. Lusiu rejoined with gratitude that the learned counsel for the first respondent conceded to fifth ground of appeal on the High Court's failure to issue notice of the date for delivery of the ex-parte ruling. Nevertheless, he disagreed on the remedy proposed. In that spirit, he distinguished the case of Kajass (supra) where the issue was on validity of delivery of judgment and not notification to a party of the date for delivery of the ex-parte judgment. He insisted that the remedy is to quash the proceedings and set aside the ex-parte ruling as held in Tropical Air (Z) Ltd's case (supra). Mr. Lusiu contended that, that case is about notification on the date of delivery of ex-parte ruling. 5

He in the end urged the Court to allow the appeal, nullify the proceedings and set aside the High Court's ex-parte ruling. As alluded to earlier, the complaint in ground five is that the High Court failed to notify the appellant on the date of delivery of ex-parte ruling to which the appellant invited the Court to fault the High Court. Admittedly, the law requires that a party to be informed of the date of an ex-parte ruling before it is delivered. The rationale has been stated in no uncertain terms in Cosmas Construction Company v Arrow Garments Ltd [1992] TLR 127 as captured hereinbelow. Such decision can only be delivered in his absence where the court is satisfied that the said party's attendance cannot be procured. It is settled law under Order XX rule 1 of Civil Procedure Code [Cap 33 R.E. 2023], that in an ex-parte hearing, a party against whom the hearing proceeded ex-parte has a right to be notified of the date of judgment delivery to afford such a party the right to take necessary steps to protect his or her rights. That was insisted in Cosmas Construction Company (supra), where the Court stated: " ... a party who fails to enter an appearance disables himself from participating when the proceedings are consequently ex-parte , he has to be told when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may follovJ '. 6

With the foregoing analysis and salutary position of the law, we find the fifth ground of appeal to have merit. With the above reasoning, it is needless to examine other grounds of appeal as we find the appeal to have merit based on the fifth ground of appeal. We allow it. But, as for the way forward, we hasten to decline the appellant's invitation to nullify the proceedings of the High Court because they were not wholly faulty, save for failure to issue a notice of the date for the ex-parte ruling to the appellant. We wish to stress that in Abutwalib Musa Msuya and 2 Others v. Capital Breweries Ltd and 2 Others [2016] TZCA 549 the proceedings were marred with irregularities including the failure to notify the parties on the date of delivery of the ex-parte judgment. Similarly, in Tropical Air (Z) Ltd's case (supra) the allegations were that the appellant was not only absent at the hearing but also not informed on the date for delivery of the ex- parte judgment. Unlike the situation in Tropical Air (Z) Ltd's case (supra) and Abutwalib Musa Msuya's case (supra), in the case at hand it is settled that the appellant's counsel was present in court when the date for hearing was fixed. The only defect was the omission to issue a notice on the date of delivery of the ex-parte ruling to the appellant. That in our view cannot invalidate the entire proceedings at the High Court. Nonetheless, we found the High Court failed to issue the notice on the 7

date of delivery of the ex-parte ruling, consequently, that ruling was delivered irregularly. In the event, we quash the pronouncement of the ex-parte ruling done in contravention of the law. We direct the High Court to pronounce the said ex-parte ruling in the presence of the parties as required by the law. We make no order as to costs. DATED at DAR ES SALAAM this 6th day of August 2025. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 7th day of August, 2025 in the presence of Mr. William Joseph Nyibago, holding brief for Mr. Peter Lusiu, learned counsel for the Appellant and Mr. Sharif Sirry Abdallah, learned State Attorney for the 1st Respondent and Mr. Ahmed Said El-maamry, learned counsel for the 2n d Respondent; is hereby certified as a true copy of the original.