CAMEL 2222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA HC CIVIL APPEAL No. 39 OF 2022 (Originating from DC Civil Appl. No. 09 of 2021) CAMEL OIL (T) LTD.................................................................. 1st APPELLANT BILO STAR DEBT COLLECTOR COMPANY LTD......................... 2nd APPELLANT VERSUS PASCHAL JULIUS NG'HWAHWA................................................. RESPONDENT JUDGMENT 2/10/2023 & 31/10/2023 ROBERT, J:- This appeal arises from the decision of the District Court of Ilemela in DC Civil Application No. 09 of 2021. The two appellants, Camel Oil (T) Ltd and Bilo Star Debt Collector Company Ltd, having been aggrieved by the decision of the District Court of Ilemela preferred an appeal to this Court challenging various aspects of the District Court's decision. The appellants had previously filed Misc. Civil Application No. 5 of 2019 against the respondent, Paschal Julius Ng'hwahwa in which they successfully obtained an order for extension of time to file an application to set aside the ex-parte judgment and decree in Civil Case No. 2 of 2017. Subsequently, the i appellants filed an application to set aside the ex-parte judgment and decree (Application No. 3 of 2021). However, this application was struck out for being time-barred having been filed after the prescribed time. Consequently, the appellants filed DC Civil Application No. 09 of 2021 at the District Court of Ilemela seeking an order for extension of time to file an application to set aside the ex-parte judgment. The District Court dismissed the application on the grounds of res judicata, arguing that the matter had already been brought before the Court with the same parties and on the same issues, and was finally determined by the District Court. Aggrieved by this decision, the appellants filed this appeal, challenging the District Court's decision on the following grounds: 1. The trial Magistrate erred in law and fact for introducing and determining a new issue without giving the parties an opportunity to be heard. 2. The trial Magistrate erred in law and fact by refusing to enlarge the time for filing an application to set aside an ex-parte judgment on the ground that the same was res judicata when, in fact, the previous application was struck out and not dismissed. 3. The trial Magistrate erred in law and fact by holding that the application for enlargement of time before the District Court of 2 Ilemela was the same application that was before the same Court when presided over by Hon. A.L. Kaiegeya. The appellants prayed for the appeal to be allowed with costs, the dismissal order to be quashed and set aside, and for an order for enlargement of time to be granted. When the appeal came up for hearing, the appellants were represented by Mr. Stephen Kitale, learned counsel, whereas the respondent was represented by Mr. Julius Mushobozi, learned counsel. Hearing of the appeal proceeded by way of written submissions. On the first ground, Counsel for the appellants argued that the trial magistrate's decision to introduce and determine the res judicata issue without notice or opportunity for the parties to be heard violated the principles of natural justice. Citing the case of Director of Public Prosecutions v. France Dominicus Chiwangu, Criminal Appeal No. 526 of 2021 (CAT), and other authorities, counsel emphasized the fundamental right of a party to be heard before any adverse action is taken against them. Coming to the second ground, Counsel for the appellants contended that the trial magistrate erroneously applied the principle of res judicata, arguing that the previous application was struck out and not dismissed. 3 Citing the case of Bin Kuleb Transport Company Limited and the Registrar of Titles & 3 Others, Civil Application No. 522/17 of 2020, counsel argued that the principle of res judicata does not apply when the previous application was struck out. Submitting on the third ground of appeal, Counsel for the appellants challenged the trial court's finding that the subsequent application for an enlargement of time was identical to the one previously presented before Hon. A.L. Kalegeya. This, according to the appellants, resulted in a miscarriage of justice. In response to the issues raised, Counsel for the respondent argued that the trial court correctly applied the principles of res judicata and functus officio. He contended that the issues were adequately addressed in written submissions, and the appellants had an opportunity to address them during the proceedings. He maintained that Hon. Kiama considered and determined the issues as raised in the parties' written submissions, chamber summons, affidavit and counter-affidavit. In his rejoinder, Counsel for the appellants reiterated his arguments in the submission in chief emphasizing on the procedural irregularities caused 4 by introduction and determination of the issue of res judicata without affording parties opportunity to be heard. Having considered the submissions presented by the parties and reviewing the evidence on record, this Court has carefully examined the issues raised by the appellants in this appeal. The appellants' first ground of appeal concerns the introduction and determination of the res judicata issue without affording the parties an opportunity to be heard. They contend that this violated the fundamental principles of natural justice and due process. Upon reviewing the record, it is evident that the trial Magistrate introduced and decided on the issue of res judicata during the formulation of the ruling without hearing the parties. The Court finds that this procedural irregularity amounts to a violation of the appellants' right to a fair hearing. The principle of audi alteram partem, or "hear the other side," is fundamental to the administration of justice and ensures that parties are given an opportunity to present their arguments before adverse action is taken against them. 5 The Court acknowledges the importance of the right to a fair hearing, as emphasized in various cases cited by the appellants, and the violation of this right in the present case. Since this error could result in a miscarriage of justice, it is incumbent upon this Court to make sure that such procedural errors are corrected for the interest of justice. That said I find merit in this ground of appeal. Since this ground disposes of this appeal, I find no pressing need to deliberate on the remaining grounds of appeal. Therefore, this Court hereby allows the appeal. The dismissal order issued by the District Court of Ilemela is hereby quashed and set aside. The matter is remitted back to the District Court for a fresh hearing before a different Magistrate to ensure that justice is served. Each party shall bear their costs of this appeal. It is so ordered. 6