JUDGMENT Lukas Jastini Mwashiuya vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA PROBATE APPEAL NO. 4274 OF 2024 (Arising from Decision of Mbozi District Court in Probate Cause No. 02 of 2023, Originating from Mlowo Primary Court in Probate Case No. 19 of 2023 and Itaka Primary Court in Probate Case No. 04 of 2023) LUKAS JASTINI MWASHIUYA ……………..………………………...…… APPELLANT VERSUS BENO MOSES MWANG’AMBA …………………………………..……… RESPONDENT JUDGMENT Date of last Order: 1st August, 2024 Date of Judgment: 28th August, 2024 KAWISHE, J.: The appellant Lukas Jastin Mwashiuya approached this court being irritated by the decision of the District Court of Mbozi at Vwawa, in Civil Revision No. 02 of 2023 which originated from Probate Case No. 19 of 2023 of Mlowo Primary Court and Probate Case No. 04 of 2023 of Itaka Primary Court. The appellant raised five grounds of appeal as reproduced hereunder regardless of some errors: 1 1. That, the trial court Magistrate erred in law and fact by condoned the irregularities done by the Primary Court. 2. That, the trial court Magistrate erred in law and fact for not expensing justice to the appellant. 3. That, the trial court Magistrate erred in law and fact for not evaluate effectively the evidence adduced by the parties thus led to favor the respondent without any merits. 4. That, the trial court Magistrate erred in law and fact for failure to examine the legality of the respondent as administrator of probate estate of deceased Daines Mwashiuya. 5. That, the trial court Magistrate erred in law and fac by issue the ruling without cite any provision to support. He prayed to the court to this court to quash the decision, ruling and judgment of primary court and the District Court. That the court order review by another competent Magistrate. When the matter was mentioned before this court for necessary orders, the parties prayed that the appeal be heard by way of written submission. The court granted the prayer and an order was made to that effect. The parties adhered to the schedule that the court was duty bound to determine the appeal on merits. While composing the judgment, I realized from the available information that the District Court called for the case files from Mlowo and Itaka Primary Courts. Upon reviewing the case 2 files, the honourable raised the issue of res judicata, decided without availing the parties a right to be heard. That being the case, the court on the date for judgment, informed the parties on the issue. The parties once again prayed to dispose the matter by way of written submission. Judiciously, the court granted the prayer. The parties respected the schedule, filed their submissions accordingly. The appellant submitted that, the case at Itaka Primary Court was not res judicata as claimed by the district court. That the appellant instituted Probate Case No. 04 of 2023. That he was not informed of the Probate Case No. 19 of 2023 at Mlowo Primary Court. He added that, he was surprisingly informed that probate cause of the deceased Daines Mwashiuya was adjudicated to finality by a competent court through Probate Case No. 19 of 2023. The appellant further submitted that for a case to be res judicata has to cover four elements. That the suit must be between the same parties, the same subject matter, the same cause of action and has to have been decided on merits by a court with competent jurisdiction according to section 9 of the Civil Procedure Code Cap 33 R.E 2019 and Rule 11 of 3 Magistrates Courts (Civil Procedure in Primary Courts) Rules of 1983. He insisted that he was not part of the probate cause instituted by the respondent at Mlowo Primary Court. He concluded that the case is not res judicata. Thus, prayed to this court to reject the issue of res judicata raised by the Magistrate. In his response, the respondent conceded to the elements of res judicata. He added that, the appellant has put it very well that the Probate Case No. 19 of 20223 filed at Mlowo Primary Court was instituted first, then Probate Case No. 04 of 2024 was instituted later. He supported the decision of the District Court in Civil Revision No. 2 of 2023 at Vwawa. He contended that, the estate to be administered in one, the matter was finally adjudicated at Mlowo Primary Court concerning the estate of the deceased Daines Mwashiuya. That the appellant wrongly instituted the suit which is barred by the principle of res judicata. That the District Court was right to invoke the principle of res judicata. There was no rejoinder. The submission made by the parties are for and against the decision of the district. The reason is obvious. Bearing in mind the circumstances transpired in the appeal, there is only one issue to be attended. That is, 4 whether after the district court has raised the issue of res judicata the parties were afforded a right to be heard. Given the fact that the parties in this appeal are laymen, did not hit the bull’s eye on the issue which this court raised suo motto. Their submissions shade a light on the way forward. The appellant for understandable reasons, submitted that, the case at Itaka Primary Court was not res judicata as claimed by the District Court. That the appellant instituted Probate Case No. 04 of 2023. Antagonistically, the respondent claimed that the district court was right to hold that the case was res judicata. Whether the district was right or erred in deciding that the case was res judicata has been dented by the issue being raised suo motto without inviting the parties to address the court. It is a settled law that when the court raises an issue suo motto it has to invite the parties to address the court. This is to abide to the principles of natural justice to wit: “Audi alteram partem” that is listen to the other side, or let the other side be heard as well. It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. The district when discovered that the case was res judicata it was bound to invite the 5 parties to address the matter. The Court of Appeal had an ample time to deliberate on a case where a matter was raised suo motto and decided by the court without inviting the parties to address the court. The Court hold it was not correct. This was so held in the case of Director of Public Prosecutions vs. Al-Halil Omar Kombo (Criminal Appeal No. 66 of 2023) [2024] TZCA 292 (2 May 2024), 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 right to be heard is a constitutional right as well. It is enshrined under article 13(6)(a) of the Constitution of the United Republic of Tanzania of 1977. There is a plethora of cases on the right to be heard, just to mention a few: 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 2020) [2023] TZCA 17923 (11 December 6 2023), Yazidi Khassim Mbakileki vs. CRDB 1996 Ltd & Another (Civil Reference No. 14 of 2018) [2019] TZCA 117 (16 May 2019). The District Court did what has been repeatedly insisted by the Court of Appeal that, it is established law that any judicial order made in flagrant violation of any cardinal rules of natural justice is void ab initio and 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). In view of the above, I am constrained to allow the appeal and rule that the District Court ruling dated 20th October, 2022 and its consequential orders were bad in law and therefore a nullity. Consequently, I am enforced, as I hereby do, to remit the record of the District Court for it to proceed with the determination of the application for revision by availing the parties the right to be heard in Civil Revision No. 2 of 2023. Given the circumstances of this matter I make no order as to costs. 7 It is so ordered. Right of appeal explained. DATED and DELIVERED at MBEYA this 28th of August, 2024. E.L. KAWISHE JUDGE Court: Judgment delivered virtually before Lukas Jastini Mwashiuya, the appellant and Beno Moses Mwang’amba, the respondent. E.L. KAWISHE JUDGE 28/8/2024 8 9