20170523 TZCA Arusha

.... , IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA. (CORAM: JUMA Ag. CJ .• MJASIRI J.A .• And MWANGESI J.A) CIVIL APPLICATION NO. 32 OF 2014 M/S TANZANIA WILDLIFE CORPORATION-------------------------- APPLICANT VERSUS MS FRIDA MWIJAGE ------------------------------------------------- RESPONDENT {Application for revision of an order given by the High Court of Tanzania at Arusha.) (Mugasha J.. Massengi J. and Mwaimu J.) Dated the 08th November 2013 in Civil Appeal No. 15 of 1999 RULING OF THE COURT 22nd & 24 th May 2017 MWANGESI, J.A.: This ruling is in respect of an application that has been brought by way of notice of motion made under section 4 (3) of the Appellate Jurisdiction Act, Cap 141 RE 2002 and Rule 65 (1) (2) (3) and (4} of the Court of Appeal Rules, 2009 (the Rules), whereby, the applicant is moving the Court to revise the order of the High Court of Tanzania at Arusha dated the 08 th November 2013. The application has been supported by an affidavit that was sworn by Mr. Evaison Erasmo Maro, who happened to 1 ' f~- ~;,,\. represent the applicant at the High Court. It is the request of the applicant in the application that, this Court be pleased to revise the order that was issued by a panel of three Judges of the High Court whereby, they did summarily reject the appeal that had been lodged in Court, vide Civil Appeal No. 15 of 1999. The background leading to the order being impugned as could be discerned from the records of the case file as well as the affidavit in support of the application is that, the applicant was aggrieved by the decision of the defunct Industrial Court in respect of Trade Dispute No. 17 of 1994, where the applicant was the appellant. To challenge the said decision, the applicant did lodge an appeal to the High Court, an appeal that was registered as Civil Appeal No. 15 of 1999, wherein about seven grounds were raised. After having been mentioned for a number of times, on the 08 th day of November 2013, it was mentioned before a panel of three Judges. On that date, the appearance on behalf of the applicant was made by learned counsel Mr. Innocent Mwanga, who did hold the brief for Mr. Maro learned counsel, who on the material date was attending to High Court sessions at Monduli. On the part of the respondent, there was no appearance of either the respondent herself or her learned counsel. 2 According to the record in the case file at the High Court, Mr. Innocent Mwanga was required to address the Court as regards the competence of the appeal in terms of the provision of section 28 (2) of the Industrial Court Act. However, the record is silent as to whether Innocent Mwanga did perform such task or not. It was however submitted from the bar that, he did not. Be that as it might be, what transpired thereafter was that, the Court did make an order that reads: "The appeal is brought prematurely because it is a decision of a Chairman alone while in terms of section 28 (2) of the Industrial Court Act the appeal lies with the Industrial Court presided by three Judges and two assessors. In that regard, the appeal is summarily rejected. " The above order of the Court is the basis for the application at hand. The applicant is challenging it, pegging his challenge on basically three grounds namely: 1. That the first appellate Court wrongly assumed summary jurisdiction, which jurisdiction is not conferred upon it by the law. 3 2. That the High Court erred in denying the applicant a right to be heard prior to the decision by the High Court rejecting the appeal. 3. That the High Court erred in holding that, the appeal which had raised jurisdictional matters had been prematurely filed in the High Court. On the 17th May 2017, the respondent did file a notice of preliminary objection in terms of Rule 4 (2) (a) of the Court of Appeal Rules founded on two grounds that is, first, that the application is incompetent for want of locus standi on the part of the applicant. Secondly, that the application for revision is misconceived because the applicant has a right of appeal. When the application came for hearing before us on the 22 nd day of November 2017, Messrs Fortunatus Mhalila and Ayub Rashid learned State Attorneys, did enter appearance for the applicant whereas, Mr. John Materu learned counsel, did appear for the respondent, who was also personally present. When Mr. John Materu learned counsel, rose to argue on the preliminary objection which he had raised, he did inform us that, he was abandoning the second ground. He did therefore proceed to argue on the first ground only. Nonetheless, shortly thereafter on reflection, which was 4 after we had asked him as to whether this was the proper Court to address the issue of locus standi to the parties, which was the basis of his preliminary objection, he had a change of mind whereby, he decided to withdraw it, to let the main application be argued. In his submission to amplify the application for revision, Mr. Fortunatus Mhalila learned State Attorney did submit before us that, he was inviting this Court to revise the order that was issued by the High Court of Tanzania at Arusha being presided by a panel of three Judges, an order that was issued on the 08 th November 2013. The said order which did summarily reject the appeal that had been filed by the applicant, in his view was illegal on the following reasons. First, the Court had no mandate to summarily reject the appeal because there is no provision of law that confers to it with such powers. Secondly, the Court did issue the order without according the applicant the right to be heard. This is from the fact that, on the fateful date, Mr. Elvaiso Maro, who had been representing the applicant, was attending to High Court sessions at Monduli and Mr. Innocent Mwanga held his brief. When Mr. Mwanga was required to address the Court on the issue of competence of the appeal before the Court in view of the provision of section 28 (2) of the Industrial Act, he did 5 inform the Court that, he was not well vested with the facts and asked for adjournment. And after being excused for a while, he was called whereby the order for summary dismissal was read over to him. And, with regard to the third ground, the learned State Attorney did submit that, there was no justification for the Court to summarily reject the appeal without according the applicant the fundamental right of being heard. In the circumstances, the learned State Attorney has submitted that, the order which was made by the Court was illegal and has urged us to revise it by quashing and setting it aside, and in lieu thereof, directing the appeal to be heard and determined on merits. On his part, Mr. John Materu learned counsel for the respondent, has shared the views of his learned brother by submitting that, indeed, the order that was made by the High Court Judges was illegal because it was made without according both parties the right of being heard, because even the respondent was not present in Court on the fateful date. Secondly, Mr. Materu has argued that, there was no justification for the Court to summarily dismiss the appeal on a date in which, it had been scheduled for mention. Such an order would have been sound, if the appeal had been scheduled for hearing. To that end, in line with what had 6 been submitted by his learned brother the learned State Attorney, he has urged us to quash and set aside the order of the High Court that was made on the oa th November 2013, and direct for re-constitution of the panel to hear and determine the appeal on merits. On the basis of what has been submitted by both learned counsel above, there is mainly one issue that stands for our deliberation, which is whether the grounds that have been advanced by the applicant to challenge the order that was made by the High Court on the oath November 2013 are sound. In our view the second ground that concern the right of a party to be heard before being condemned carries the day. As such, we shall confine ourselves to it alone. From the record of the proceeding in the High Court as supplemented by the submissions of the learned counsel for both sides from the bar, on the date when the Court issued the order summarily dismissing the appeal, neither the applicant or his counsel nor the respondent and her counsel was heard. There was an attempt by the Court to require Mr. Innocent Mwanga to address the Court on the competence of the appeal, a task which Mr. Mwanga failed to perform because he had just been asked by his learned brother to hold brief with no further instructions. 7 • It is not surprising that, on the said date, Mr. Maro did request his learned brother Mr. Innocent Mwanga, to hold his brief without giving him any detailed instructions because, as it could be reflected from the record in the proceeding at the High Court, on the material date, the appeal had been scheduled for mention. It is common knowledge from the practice of the Court that, on days when cases have been scheduled for mention, normally parties attend in Court to receive instructions in regard to the conduct of their cases. Under the circumstance, there was no justification at all for the Court to give an order that did dispose of the appeal on a date when it came for mention. But what is of more importance to us, was the act by the Court to give the order of dismissing the appeal summarily without the concerned parties being heard. The right of a party to be heard before any decision affecting his rights is made is so fundamental. It is from such importance that, the right has specifically been provided for in our Constitution (the Constitution of United Republic of Tanzania, 1977), in Article 13 (6) (a). In a plethora of decisions, this Court has emphasized on the necessity of according such right to the parties. In the case of Francis Kwaang Musei 8 . Vs Honorable Wilbroad Peter Slaa and Others, Civil Application No. 2 of 1999 (unreported), it did hold that: "The right for a party to be heard is so fundamental that, where in a case it is proved that, a party was not given an opportunity of being heard the decision adverse to the party may be vitiated. " The above stance was later reiterated in the case of Abbas Sherally and Another Vs Abdul S. H. Fazalboy, Civil Application No. 33 of 2002 (unreported), where in considering the complaint of the applicants who had complained to have been condemned unheard, the. holding of the Court was to the effect that: "The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the Court in numerous decisions. The right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard because the violation is considered to be a breach of naturalJustice. " Besides the above cited authorities, there was yet the decision of the Court in Mbeya - Rukwa Autoparts and Transport Limited Vs 9 .....,;;;.,- ,_,; " • lestina George Mwakyoma [2003] TLR 251, where upon having considered a variety of authorities the Court did move further by reproducing the Article in our Constitution that guarantees the right of being heard when it said: ''In this country, natural justice is not merely a principle of common law/ it has become a fundamental constitutional right Article 13 (6) (a) includes the right to be heard among the attributes of equality before the la~ and declares in part: (a) Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu---" As it has beep established in the instant application that, on the day in which the Court issued its order of dismissing the appeal summarily neither the appellant nor the respondent was present in Court, in line with what we held in the above cited decisions, we find ourselves constrained to subscribe to what has been submitted by the learned counsel for both sides that, the order that was issued by the Court on the 08 th day of November 2013, in which it summarily dismissed the appeal that had been lodged by the applicant, was illegal and cannot be left to stand. In terms of 10 II i the provisions of section 4 (2) of the Appellate Jurisdiction Act, Cap 141, we hereby quash it and set aside. In lieu thereof, we direct that, the Court be reconstituted with a different panel of Honorable Judges of the High Court to hear the appeal and determine it on merits. We make no order as to costs. Order accordingly. DATED at ARUSHA this 23 rd day of May, 2017. I. H. JUMA Ag. CHIEF JUSTICE S. MJASIRI JUSTICE OF APPEAL 11