CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CORAM: KOROSSO. J.A.. RUMANYIKA. J.A.. And ISSA. J.A CIVIL APPEAL NO 375 OF 2023 MWAJUMA RAMADHANI MSAGHAA...................................... APPELLANT VERSUS PETER COSMAS T O S H ........................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (Mdemu, J/) dated the 21 day of April, 2023 in PC Civil Appeal No. 15 of 2022 JUDGMENT OF THE COURT 11th & 26th March, 2025 RUMANYIKA, J,A.: This appeal lies on the decision of the High Court of Tanzania which reversed the decision of District Court of Dodoma. As such, the background to the matter is fairly short. Before the Primary Court of Chamwino in the District of Dodoma ("the trial court"), the respondent successfully instituted Matrimonial Cause No. 49 of 2020. He sought a decree of divorce and division of matrimonial property against Mwajuma Ramadhani Msaghaa, the appellant. This happened after their marriage had lasted for about twenty-two years and blessed with three issues. The trial court's decision didn't amuse the appellant. She successfully challenged it before the District Court of Dodoma ("the first appellate court") vide Matrimonial Appeal No.03 of 2021 against the 30% of the matrimonial houses awarded to the respondent against her 70% shares. In that decision, the first appellate court upheld the trial court's decision on the respondent's failure to prove the extent of his contribution towards acquisition of the houses at issue. As such, the order of division of the assets was reversed as the first appellate court was of the view that the appellant personally owned the said houses. Further, the respondent was ordered to pay maintenance allowance of TZS. 200.000.00 monthly for the three children. Aggrieved, the respondent successfully appealed to the High Court of Tanzania at Dodoma ("the second appellate court") with two points of grievance; one: that the property which was jointly acquired by them during subsistence of the marriage could not solely belong to the appellant; and two, that the order to maintain the children at TZS. 200.000.00 per month was on the high side and against the appellant's ability to pay. Upon hearing the parties, the High Court allowed the appeal. It restored the trial court's decision regarding division of the matrimonial houses. Moreover, the documentary evidence which was relied upon by the two courts below was expunged from the record being regarded to be forged. Nonetheless, it was ruled that, those houses are matrimonial property. Moreover, the order for maintenance allowance for the children was set aside, as the High Court was of the view that, the respondent's means of income and ability to pay was not established. As such, the record was remitted to the court below for reconsideration of the order of maintenance upon obtaining an inquiry report of the respective Social Welfare Officer. Disgruntled, the appellant has preferred the instant appeal assailing the decision of the High Court on three grounds; one, for expunging the exhibits and wrongly proceeding to the merit of the appeal instead of ordering a trial de novo. Two, for holding that, the respondent contributed to the acquisition of the disputed plot and houses; and three, for holding that, the respondent is entitled to 30% shares of the disputed houses without justification. Before us on the scheduled hearing of the appeal, for the appellant and the respondent there were Messrs. Sosten Mbedule and Chipson Kidumage, learned advocates respectively. However, on set, Mr. Mbedule informed the Court that, the first ground of appeal on denial of a right to be heard would sufficiently dispose of the appeal. In this ground, the second appellate court is challenged for having expunged exhibits A, B, C, D, E, F, G, H, I, J, K, M, N and X2, and yet proceeding to the merit of the appeal to its finality. In his written submission Mr. Mbedule viewed the approach of the High Court Judge to have abrogated the parties' right to be heaj'd. He contended that, admissibility of the said exhibits or otherwise was not one of the issues which had been presented before the High Court for determination. As such, Mr. Mbedule asserted, the appellant was condemned unheard and that, on that account this Court has to quash the resultant decision. In reply, Mr. Kidumage readily agreed with Mr. Mbedule that, in all fairness the first ground of appeal is decisive of this appeal as the appellant was condemned unheard. Upon hearing the learned Counsel's contention and reviewing the record of appeal, the issue in controversy is whether, the expunging of the said exhibits denied the appellant a right to be heard rendering the proceedings a nullity. We have traversed the record of appeal in relation to the appellant's complaint, and we are satisfied that the said omission is alarming. It is worth noting that, all began with the respondent who unsuccessfully objected the admission of the said documents as it is appearing on page 69 of the record of appeal as follows: " M D AI M im i napinga hizo nyaraka zote n i za kufoji nazikataa M daiw a M im i nakiri kuwa h izi n i nyaraka haia/i na ana hoja mfu. M AHAKAM A Nyaraka za mdaiwa tunazipokea na kuwa sehem u ya Ushahi d i" The above excerpt means that, the respondents objection apart, the learned trial magistrate casually overruled it. He admitted the documents without making a ruling on it, let alone a reasoned ruling on the authenticity or otherwise of the documents so objected. We think, with respect, it is needless to emphasize the obvious. Common sense and good practice demand that, where, in any judicial proceedings an objection is raised to authenticity of evidence, as it was in this case that the intended exhibits were not genuine for admission, the proceedings have to be stayed pending a ruling on that. Unfortunately, in the present case this was not done. It is so because logically, in the absence of a ruling, it would become difficult for the appellate court to determine the subsequent matter on merit. Certainly, in this case we are satisfied that, the trial court decided the issue before it prematurely. Also, whether or not the said documents were genuine and authentic for admission in evidence, the trial court decided it prematurely and also, with respect, on appeal, the learned Judge fell in a similar trap by raising and deciding the issue suo motu, late in his Judgment at is exhibited on pages 229-230 of the record of appeal. For clarity, the operative part of it reads: " ...Exhibits on record are copies and it is sile n t in the proceedings as to why they were adm itted. Two, the said exhibits are certified but in them, the place to insert the name o f the certifying officer and date is blank m eaningthey were not certified. Three , a ll the docum ents were not read out in court after adm ission... In view thereof, a ll exhibits cannot be relied upon and they are expunged from the record ..." From the above extract therefore, such, the learned Judge expunged the said exhibits for being secondary documentary evidence and that they got their way onto the record wrongly. It was so pronounced without according the parties a hearing as alluded to before. As such, the anomaly above contravened the well cherished legal principle that any court's decision which is arrived at without according a party an adequate hearing, let alone a hearing is a nullity, even if the same decision would have been arrived at had the adversely affected party been heard. See- Mbeya-Rukwa Auto Parts and Transport Ltd. v. Justina George Mwakyoma Civil Appeal No. 45 of 2000 [2001] TZCA 92 (9 August 2001; TanzLII) and Kumbwandumi Ndemfoo Ndossi v. Mtei Bus Services Ltd. (Civil Appeal No 257 of 2018) [2021] TZCA 23 (19 February 2021; TanzLII). In the latter case, the Court held as follows; "Basically, cases m ust be decided on the issues or grounds on record and if it is desired by the court to raise other new issues either founded on the pleadings or arising from the evidence adduced by w itnesses or argum ents during the hearing o f the appeal\ those new issues should be placed on record and parties m ust be given an opportunity to be heard by the court. This Court has alw ays em phasized that the right to be heard is a fundam ental principle o f natural ju stice which should be observed by a ll courts in the adm inistration o fju stice ." From the excerpt above, therefore, the import is two-fold; one, that, where, in any judicial proceedings if need be, no court is precluded from raising a new issue for better determination of the case before it to meet the ends of justice and two, that, the court's legal mandate apart, it is not permissible for it to raise and determine an issue unilaterally without according the parties a hearing. From the stance taken by the Court as observed earlier on, therefore, the appellant's complaint is justified as it was rightly mutually agreed by the learned counsel. We stress that, just as the trial court wrongly overruled the respondent's objection without assigning reasons to hold so, on his part, the learned High Court Judge, with respect, should have not raised the said issue suo m ottu belatedly in his judgment that the 6 exhibits improperly got their way onto the record. As such, those exhibits were expunged from the record without according the parties a hearing. In view of the foregoing and in terms of section 4(2) of the Appellate Jurisdiction Act, Cap. 141 R.E 2009, we quash the impugned decision and set aside the resultant orders. Consequently, we order for the record to be remitted to the High Court for redetermination of the appeal expeditiously in accordance with the law. The appeal is allowed to the extent shown above. DATED at DODOMA this 25th day of March, 2025. W. B. KOROSSO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 26th day of March, 2025 in the presence of Ms. Helen Ngelime learned counsel for the appellant and Mr. Cheapson Luponelo Kidumage learned counsel for the respondent, is hereby certified as a true copy of the original.