JUDGMENT Angela Komba vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA DC. CIVIL APPEAL NO. 16984 OF 2024 (Arising from Mbinga District Court in Civil Appeal No. 21 of 2023 Originating from Langiro Primary Court in Matrimonial Cause No. 05 of 2023) ANGELA MATELINUS KOMBA ....…..………………………………………. APPELLANT VERSUS TITUS EXAVERY KOMBA …….….……………………………………….. RESPONDENT JUDGMENT Date: 28th and 28th October, 2024. KAWISHE, J.: The appellant Angela Matelinus Komba, approached this court after being irritated by the decision of the District Court of Mbinga at Mbinga (first appellate court), in Matrimonial Appeal No. 21 of 2023 which originated from Langiro Primary Court in Matrimonial Cause No. 05 of 2023. The appellant has three grounds of appeal as reproduced hereunder regardless of some errors: 1 i. That, the appellate court erred in law and fact for failure to allow a division of the matrimonial assets as the same parties have acquired by their joint effort when they were living together under presumption of marriage. ii. That, the appellate court erred in law and fact to decide the matter contrary to the law and evidence adduced. iii. That, the appellate court erred in law and fact to decide an appeal in favour of the respondent, and disregarded evidence adduced by the appellant at a trial court while her evidence was strong i.e the standard was at required level of balance of the probability. She prayed for the appeal to be allowed and the decision of the first appellate court to be set aside and the decision of the trial court be upheld. The appeal was contested by the respondent through his reply to the memorandum of appeal. When the appeal was called for hearing, both parties were unrepresented. They fended for themselves and argued orally. While composing the judgment, I realized that, having heard the parties, the first appellate court never addressed the grounds of appeal and instead, it raised a new issue of whether it was proper for the trial court to give orders for division of matrimonial properties without issuing a decree for 2 divorce or separation. This was not among the grounds of appeal and it was not argued by any party at the hearing of the appeal. Having raised the new issue suo moto the first appellate court decided it without availing the parties a right to be heard. That being the case, when the matter was called for judgment on 28th October, 2024, this court informed the parties on that issue. Judiciously, the court invited the parties to address on whether it was proper for the first appellate court to raise a new issue and determined it without affording the parties a right to be heard. When the appellant, Ms. Angela Komba, was called to address the court, she argued that the first appellate court was not right in deciding the matter without availing them the right to be heard. She added that the first appellate court unnecessarily departed from the grounds of appeal placed before it by the appellant and came out with its own ground and decided it. She contended that she was surprised when ordered that the matter was to start afresh before another magistrate. Thus, prayed to this court to set aside the decision made by the first appellate court. In his response, the respondent Mr. Titus Komba, supported the decision of the first appellate court. He asserted that, the first appellate 3 court correctly decided the matter since the trial court erred to order for the division of matrimonial properties without issuing an order for decree for divorce or separation. He contended that, the first appellate court correctly nullified the decision and orders of the trial court. Hence, he prayed that this appeal be dismissed. In her brief rejoinder, the appellant reiterated her submission in chief that the first appellant court was wrong in its decision and prayed the appeal to be successful. The submissions made by the parties are for and against the decision of the first appellate court. Bearing in mind the circumstances transpired in the appeal, there is only one issue upon which this court is called to determine. That is, whether it was proper for the first appellate court to raise the issue suo moto and determine it without affording the parties with a right to be heard. The appellant for obvious reasons submitted that, the first appellate court was not correct to determine the issue without affording them with the right to be heard. Antagonistically, the respondent claimed that the first appellate court was right to hold that the trial court divided the matrimonial properties without issuing a decree for divorce or separation order. 4 It is a settled law that when the court raises an issue suo moto it has to invite the parties to address the court. This is to abide to the principles of natural justice specifically “Audi alteram partem” that is, listen to the other side, or let the other side be heard as well. It is a principle that no person should be judged without a fair hearing in which each party is given an opportunity to respond to the evidence against him. That being a settled law, the first appellate court when it found out that, there was illegality or irregularity in the proceedings, judgment and the orders of the trial court, after raising a new issue, the first appellate court was bound to invite the parties to address on it. To the contrary the first appellate court raised the issue suo moto and determined it without hearing the parties on the same. What the first appellate court did is not a miracle. There is plethora of case law rectifying cases where matters were raised suo moto and determined while excluding the parties thereto. Encountered with an appeal like the one at hand, the Court of Appeal issued clear instructions to subordinate courts on raising issues suo moto and decide the same without inviting the parties to address the court. The Court was very clear that it is not correct to raise suo moto and decide issues exclusively. This was so held in the case of Director of Public Prosecutions vs. Al-Halil Omar 5 Kombo (Criminal Appeal No. 66 of 2023) [2024] TZCA 292 (2 May 2024, TanzLII), the Court stated that: “… it was not correct, with respect to the learned Judge, to raise the issue suo moto as he did, and decide on it without inviting the parties to make submissions on it. We agree with the learned counsel that this issue ought to have been raised as a ground of appeal or if raised by the court suo moto as it did, the parties ought to have been called to address the court before making its finding on it. We also agree that failure to call the parties to address the Court vitiated the proceedings and decision. This calls for the exercise of revision powers followed by the resultant orders of retrial.” The excerpt quoted from of the Director of Public Prosecutions (supra) is protecting the constitutional rights of parties before courts and tribunals. The right to be heard is constitutional enshrined under article 13(6)(a) of the Constitution of the United Republic of Tanzania of 1977. A right, which courts have to protect jealously. There is a plethora of cases on the right to be heard, just to mention a few, see Ndesamburo vs. Attorney General (1997) TLR 137, The National Housing Corporation vs. Tanzania Shoes and Others (1995) TLR 251, Issa Juma @ Magono & Others vs. Republic (Criminal Appeal No.378 of 2020) [2023] TZCA 17650 (25 September 2023), NCBA Bank Tanzania Limited vs. VEST Tanzania Limited & Another (Civil Appeal No. 321 of 6 2020) [2023] TZCA 17923 (11 December 7 2023), Yazidi Khassim Mbakileki vs. CRDB 1996 Ltd & Another (Civil Reference No. 14 of 2018) [2019] TZCA 117 (16 May 2019). It is openly clear that the first appellate court did what has been repeatedly insisted by the Court of Appeal that, it is not correct to raise an issue suo moto and decide the same without availing the parties a right to be heard. This is evident under page 5 of the first appellate court’s judgment, it stated, I wish to reproduce the same for easy of reference: “In the steadfastness of this appeal, this court is of the considered opinion that this appeal holds water, for the purpose of this judgment I will only discuss the issue with regard to the jurisdiction of the court in dealing with the application of division of the matrimonial properties without first dealing with the issue of grant of the decree of divorce or separation. In that cause the following is issue for determination; i. Given the provisions of section 114[1] of LMA, whether or not a court in which the petition of matrimonial properties has been instituted can proceed to grant the same without first inquiring and issuing a decree of divorce or separation as the case may be.” The issue raised by the first appellate court was not among the grounds of appeal. The first appellate court proceeded to determine the issue without availing the parties the right to be heard. This violated the principle of right to be heard, Audi alteram partem. The first appellate 7 court rightly raised a pertinent issue but with due respect, undesirably dealt with it in contravention of the principles of natural justice. Thus, it is established law that any judicial order made in flagrant violation of any cardinal rules of natural justice is void ab initio, vitiates the decision and must be quashed even if the same decision would have been arrived at if fully observed or even if made in good faith. See the case of Abbas Sherally and Another vs. Abdul S. H. M. Fazalboy, Civil Application No. 133 of 2002 and Dishon John Mtaita vs. The Director of Public Prosecutions, Criminal Appeal No. 132 of 2004 (both unreported), where the Court held that: “The right to be heard when one's rights are being determined by any authority, leave alone a court of justice, is both elementary and fundamental. Its flagrant violation will of necessity lead to the nullification of the decision arrived at in breach of it.” In view of the cited cases, it is crystal clear that the parties deserved the right to be heard. Since the principles of natural justice were not observed, I am constrained to allow the appeal and rule that the decision of the first appellate court dated 24th August, 2023 and its consequential orders were bad in law and therefore a nullity. Therefore, the issue raised whether it was proper for the first appellate court to raise a new issue and determined it without affording the parties a right to be heard. It is 8 answered in the negative. Hence, the appeal has merit and is hereby allowed. Consequently, I am required, as I certainly do, to remit the records of the first appellate court in Civil Appeal No. 21 of 2023 to proceed with the determination of the appeal by availing the parties the right to be heard. Given the nature of this matter, I make no order as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 28th Day of October, 2024. E. L. KAWISHE JUDGE Court: Judgment delivered in the presence of Ms. Angela Komba, the appellant and in the presence of the respondent, Mr. Titus Komba. Right of appeal explained. E. L. KAWISHE JUDGE 28/10/2024 9