Dangote Industries Ltd Tanzania vs Wanerco (T) Limited, civil appeal No 13 of 2021.

This case provide a right to appeal against exparte judgement in Tanzania legal system. the court had this to say:

In our considered opinion therefore, as the provision of section 70 (2) of the CPC clearly and unambiguously provides for an automatic right of appeal against an ex-parte judgment, it is not for the court to
narrow down its scope by implying that the legislature intended that such an appeal would be conditional upon there being an attempt to set the ex parte judgment aside.

We can thus hold without any hesitation 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.

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 of the findings in the ex parte judgment, he cannot challenge the merit of the findings before dealing with an application to set aside the ex parte judgment first.

This principle is based on the long standing rule of procedure that, one cannot go for appeal or other actions to a higher court if there are remedies at the lower. He has to exhaust all available remedies to the
lower court first.

For the Court of Appeal, this principle is stated in rule 44 of the Tanzania Court of Appeal Rules, 2009 (the Rules) whereas
for the High Court and subordinate courts, it is stated in section 13 of the CPC.

In this case, we have observed from the record and the parties are not in dispute that, neither of the grounds of appeal raised in the first appellate court sought to challenge the order by the trial court to
proceed ex parte. Obviously therefore, the principle in the two decisions under discussion was inapplicable and the first appellate court was legally wrong in dismissing the appeal for being premature.