This is a comprehensive guide to ex-parte judgment.
In this guide, you will learn
- What is ex-parte judgment?
- When an ex parte judgment may be granted
- How to challenge/fight ex parte judgment (Setting aside ex parte judgment)
- Parameters within which the court may exercise its discretion in granting and setting aside ex parte judgment
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What is ex-parte judgment?
Ex-parte judgment is the type of judgment that is given by the court when the case was only heard from one side.
For example, when you have filed a civil case and the person that you have sued does not attend court sessions as the result the court proceeded to determine the case in his absence, in those circumstances the judgment which will be issued by the court is an ex-parte judgment.
Makame J in the case of Moshi Textile Mills v. De Voest  LRT 17 defined the phrase “ex parte judgment” as a judgment given where there is no appearance by the party against whom it is given.
In the case of East African Post and Telecommunications Corporation v. M/s Terrazzo Paviars  LRT 58 Onyiuke J defined the phrase appears as attendance in person or by advocate in court on the date stated in the summons which is also the date of for hearing of the suit.
Once the defendant is present either in person or by an advocate when the case is called up that is sufficient appearance.
MOSHI TEXTILE’s case also defines the term “a suit called for hearing.” It says that a suit is called for the hearing when it is to be heard for the first time.
The implication is that it is only one instance that an ex parte judgment can be entered i.e. on the first hearing.
The ex parte judgment cannot be entered against a Defendant who does not appear in a subsequent hearing.
When an ex parte judgment may be granted
Ex parte judgment may be granted when the defendant failed to present his written statement of defense (WSD) when a party failed to file a reply to the counterclaim when the defendant does not appear when the suit is called for hearing and when a third party fails to present his WSD or presented his WSD but makes default in appearance when the case is fixed for hearing.
Ex parte judgment when the defendant failed to present his written statement of defense (WSD)
In civil procedure where a party fails to present his WSD or a reply to a counterclaim within the time fixed by the court, the court shall pronounce the judgment against him or make an order as it may deem fit.
Depending on the circumstances of the case, the court may upon proof by affidavit or oral evidence of service of summons enter the ex parte judgment or it may fix a day for ex parte proof and may pronounce judgment in favor of the plaintiff upon proof of such claim.
If the Attorney General is required to present such a WSD or a reply and fails to do so within the time fixed by the court or specified in the summons, the plaintiff or the defendant as the case may be may apply in writing for leave to adduce ex parte proof of his claim or counterclaim and the court shall thereupon fix a day for hearing of the application and shall direct the notice of the application be given to the Attorney General.
Ex parte judgment when the defendant does not appear when the suit is called for the hearing
When the suit is called for the hearing where the plaintiff appears and the defendant does not appear when the case is called hearing then, where the defendant is the Attorney General and it is proved that the summons was duly served, the plaintiff may apply for leave to proceed ex parte and the court shall direct that notice of the application be given to the Attorney General.
But, if the Attorney General will appear and assign the good cause for his previous non-appearance, he may, upon such terms as the court may direct as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for hearing of the suit.
Moreover, where the court had adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and adds the good cause for his previous non-appearance, he may, upon such terms as the court may direct as s for costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
Ex parte judgment when a third party fails to present his WSD or presented his WSD but makes a default in appearance when the case is fixed for hearing
Here where the third party makes default in presenting his WSD within the time allowed by law or having presented his WSD defaults in appearing on the date fixed for hearing of directions if the defendant presenting the third party notice suffers judgment by default, the such defendant may of any time after the satisfaction of that judgment, or with leave of the court before satisfaction thereof, apply ex parte for judgment against the third party in respect of any contribution, indemnity, or relief claimed in the notice and the court may, on such application and on ex parte proof by the defendant of his claim against the third party, enter such judgment against the third party.
Factors considered when granting ex parte judgment
Courts of law had developed various factors within which the court may exercise its discretion in granting. Before an ex parte judgment is granted following must be proved;
- The summons was duly served
- The plaintiff must be called upon for ex-parte proof of his case
- The defendant was avoiding service of the summons
The summons was duly served
Before the court can exercise its discretion to proceed ex parte or enter the judgment for the plaintiff, as the case may be it must be satisfied that the summons was duly served insufficient time.
In considering whether service has been duly effected, the court will normally look for an affidavit of service.
In the case of Kanji Noran v. Velji Ramji 21 E.A.C.A 20, the Court of Appeal for Eastern Africa provided out that as a general practice, the court should require an affidavit of service of summons in every case before entering judgment in the default of appearance.
The plaintiff must be called upon for ex-parte proof of his case
This was judicially considered by Mwalusanya J (as he then was) in the case of Kulwa Daudi v. Rebecca Stephen  TLR 116. His Lordship remarked:
… this was a case that fulls squarely under O.VIII r. 14 (2) (b) of the CPCA and so judgment could only be entered ex parte after the plaintiff has proved its case by oral evidence or by affidavit. Failure to comply with that procedure must be offending the law
The defendant was avoiding service of the summons
If the defendant was avoiding service of the summons the court may proceed to exercise its jurisdiction of granting ex parte judgment.
This is evidenced in the case of Caritas Tanzania and another v. Stuward Mkwawa  TLR 293 where an ex parte judgment was entered, and the appellants (formally defendants) refused service of the summons.
Setting aside ex parte judgment
The only way to fight or challenge an ex parte judgment is to apply to the court which passed that judgment to set it aside.
The law is of the effect that, In any case in which a decree is passed ex-parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside.
If he satisfies the court that the summons, was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise, as it thinks fit and shall appoint a day for proceeding with the suit.
The application to set aside an ex parte judgment is made through a chamber summons supported by an affidavit.
Factors considered when setting aside ex parte judgment
- Firstly, the court will only set aside an ex parte judgment if the application to the effect is lodged in the court which passed it and not in an appellate court.
The authority for this is Mandi Mtatuturu v. Mtinangi Mtinangi  HCD 150, in this case, the appellant sued the respondent and obtained an ex parte judgment against the latter in Primary Court.
To avoid execution he appealed to the District Court which determined the appeal on its merits in favor of the respondent.
On appeal Kwikima Ag-J (as he then was) held that an ex parte judgment can only be set aside by the court which made it. He quashed the decision of the District Court and restored the ex parte judgment of the Primary Court.
- Secondly, the defendant must satisfy the court that there was a ‘sufficient cause’ for his non-appearance when the suit was called on for hearing.
What may constitute a ‘sufficient cause will depend on the circumstances of each case.
In the Kenyan case of Eksteen v. Kutosi Bukua  24 (2) KLR 90 it was held that to constitute sufficient cause it must be shown that there was some element of an intervening cause which the suitor was unable reasonably to present or overcome and that a mere fact that an advocate forgot the hearing date does not constitute to a sufficient cause.
Where the nonappearance of the defendant is being used as a delaying tactic will not constitute ‘sufficient cause to set aside the ex parte judgment.
This was stated in the case of Watson Seafood and Poultry Co. v. H.H. Sharriff  HCD 56 in the following words;
A party’s failure to give proper instruction to his advocate does not justify non-appearance at the hearing. A party cannot claim ‘sufficient cause’ where his nonappearance seems to have been another episode in the long line of delaying tactics…
- Thirdly, an ex parte judgment may be set aside by determining whether in the light of all the facts and circumstances both prior and subsequent and of the respective merits, if would be just and reasonable to set aside the judgment.
This factor was formulated by Harris, J (as he then was) in the case of Kimani v. McConnell  E.A. 547 which was cited with the approval by the High Court of Tanzania in the case of Paul S. Albert v. Theresia Andrea and Hon. Attorney General Civil Case No. 9 of 1978, High Court of Tanzania, Mwanza Registry (unreported)
- Fourthly, an application to set aside an ex parte judgment must be brought in time
If an application to set aside an ex parte judgment will be brought out of time it must fail. This was so provided in the case of Ntare v. Shinyanga  HCD 255where the Court of Appeal for East Africa held that the provisions of the Law of Limitation Act are mandatory and cannot be overridden by the discretion of the judge to exercise powers in the interests of justice.
The Civil Procedure Code [Cap 33 R.E. 2002], Tanzania Government.
As cited above.
Bullen, L & Jacobs (1999) Precedents on Pleadings, (15th Ed) Sweet & Maxwell, London
Chipeta, B.D (2002) Civil Procedure in Tanzania; a Student Manual, DSM University Press LTD, DSM
Mulla (2005) Code of Civil Procedure, (14th Ed) Butterworth, New Delhi, India