JUDGMENT Nicola Ndimbo vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA CIVIL APPEAL NO. 15072 OF 2024 (Arising from Mbinga District Court in Application No. 1401 of 2024) NICOLA NDIMBO ……………………..………………………………………. APPELLANT VERSUS ERICK KOMBA ………………….….……………………………………….. RESPONDENT JUDGMENT Date of Last Order: 03/10/2024. Date of Judgment: 10/10/2024. KAWISHE, J.: The appellant, Nicola Ndimbo, filed this appeal after being aggrieved by the decision of the District Court of Mbinga (the District Court) in Application No. 1401 of 2024. The appellant filed this appeal basing on the following grounds of complaint reproduced as follows: 1 i. That the District Court erred in law when it entertained it into the shoes of the trial court by setting aside the ex parte judgment while the respondent did not apply for setting aside the same before the trial court. ii. That the District Court erred in law when it nullified the judgment and proceedings of the trial court while at the same time holding that the holding of the trial court had no irregularity. Before I deeply engulf myself in this appeal, I find it imperative to state the brief facts from which this appeal stem from. Before Mbinga Urban Primary Court (trial court), the appellant filed Matrimonial Cause No. 64 of 2023, against the respondent seeking for among other prayers, decree of divorce and division of matrimonial properties. During the trial of the case, at the closure of the appellant’s (complainant’s) testimonies the trial court ordered for the respondent (defendant) to give his evidence but, the respondent requested for another hearing date so that he could summon his witnesses to support his testimony. Thereafter, the matter was adjourned to another date for the hearing of the defendant’s (respondent’s) case. On the date scheduled for the hearing of the respondent’s case, the respondent missed the court session. As a result, the trial court ordered for the date of judgment which was delivered against the respondent. In its decision, the trial court found the parties lived under presumption of marriage and ordered for division of 2 matrimonial properties including a house located at Mapei Street within Mbinga Township. Aggrieved with the decision of the trial court, the respondent preferred an application for revision before the district court requesting the records from Mbinga Urban Primary Court in Matrimonial Cause No. 64 of 2023 to be examined for the purpose of satisfying itself on its legality and correctness and revise the same where necessary. In its decision, the district court found that, there was illegality on the ground that, the right to be heard which is guaranteed under article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 was contravened and proceeded to nullify the proceedings from when the matter was adjourned for the defence hearing. Furthermore, the decision and orders given by the trial court were set aside. The appellant was not satisfied with that decision, hence, this appeal. At the hearing of this appeal the appellant had the legal services of Mr. Eliseus Ndunguru, learned advocate, while the respondent appeared in person and he fended for himself. 3 At the outset, Mr. Ndunguru, the appellant’s advocate informed this court that he will drop the first ground of appeal and argue only on the second ground. Arguing in support of the appeal, the appellant’s advocate stated that, in an application for revision, the court had power to deal with only legal issues but in its decision the district court based on wisdom and not law which is not correct in an application for revision. He contended that, the district court entertained extraneous matters. It was his view that, since the trial court issued an ex parte judgment, the respondent was to file an application to set aside the ex parte judgment and not to file an application for revision before the district court. To fortify his assertion, he referred to the case of National Investment Co. Ltd and Another vs. PSPF and 6 Others, Civil Application No. 154 of 2012 (unreported) in which the Court of Appeal stated that, the remedy for a party aggrieved by an ex parte judgement is to make an application before the trial court to set aside the ex parte judgment. He cited regulation 30 of GN. No. 310 of 1964 and GN No. 119 of 1983. He faulted the district court on nullifying the decision of the trial court for being illegal and he prayed for the decision of the district court to be nullified. 4 In his reply to the appellant’s advocate submissions, the respondent supported the decision of the district court. He argued that, the district court nullified the decision of the trial court as he was not accorded with the right to be heard. He maintained that, the district court was correct in remitting the case records before the trial court for both parties to be heard. In his brief rejoinder submission, the appellant’s advocate reiterated what he stated in his submission in chief insisting that, the district court has no jurisdiction to set aside the ex parte judgment given by the trial court. That the respondent was to make an application before the trial court to set aside the ex parte judgment. He prayed for the decision given by the district court to be nullified for being illegally made. Having judiciously followed the submissions made by both parties, I find the appellant’s complaint is that, the district court erred by nullifying the decision of the trial court. Instead, the available remedy was for the respondent to make an application to set aside the ex parte judgment before the trial court. This submission has been rebutted by the respondent who supported the decision of the district court. 5 I have dispassionately gone through the trial court’s records, specifically the proceedings and judgment of the trial court which led to the present appeal. In fact, I have seen nowhere the trial court ordered to proceed ex parte against the respondent. It was after the closure of the appellant’s (complainant) case that the court ordered for the respondent to call his witnesses and the matter was scheduled to another date for defence hearing. On the scheduled date, the respondent failed to appear. Thus, the trial court without giving any other order adjourned the matter to another date for judgment. When the matter was called for judgment, the respondent entered appearance and the court delivered the judgment which was not specifically stated whether it was ex parte or not. I think it is pertinent at this stage to reproduce party of the proceedings which show clearly what transpired before the trial court. Let the extract from the proceedings to speak for itself: ‘Mdai: “Nafunga ushahidi wangu” Mdai: (Amesaini) J.B KOMBA – RM 30/11/2023 Mdaiwa: “Nina mashahidi hawapo mahakamani, naomba muda niwalete.” 6 J.B KOMBA – RM 30/11/2023 Mdai: ‘Sina pingamizi”. J.B KOMBA – RM 30/11/2023 AMRI: - Shauri tarehe 05/12/2023. - Mashahidi wa mdaiwa waletwe. J.B KOMBA – RM 30/11/2023 TAREHE: 05/12/2023. Mbele ya: J.B KOMBA – RM C/C: Z.B NDUNGURU MDAI: YUPO MDAIWA: HAYUPO (Bila taarifa) Mahakama: - Hukumu tarehe 11/12/2023. - Mdaiwa ajulishwe. J.B KOMBA – RM 05/12/2023 7 TAREHE: 11/12/2023. MBELE YA: J.B KOMBA – RM C/C: Z.B NDUNGURU MDAI: YUPO MDAIWA: YUPO Mahakama: Shauri ni kwa ajili ya hukumu Mdai: Nipo tayari Mdaiwa: Nipo tayari. J.B KOMBA – RM 11/12/2023 Mahakama Hukumu imesomwa mbele ya mdai na mdaiwa. Nakala imechapwa ipo kwenye faili. J.B KOMBA – RM 11/12/2023 Mahakama: Haki ya Rufaa ipo wazi ndani ya siku 45 kuanzia tarehe ya hukumu hii. J.B KOMBA – RM 11/12/2023.’ It is from the above quoted proceedings which was condemned by the district court that the respondent was denied the right to be heard. On his part, the appellant’s advocate asserts that, it erred by stepping into the shoes of the trial court to set aside the ex parte judgment. He cited 8 regulation 30 of GN. No. 310 of 1964 and GN No. 119 of 1983 contending that the respondent should have filed an application before the trial court to set aside the ex parte judgment. This court is alive that, ex parte judgments are issued in accordance to the law. There are special procedures to be followed including issuing an order to proceed ex parte against the defendant or respondent upon good cause being shown or stated. However, in the present appeal, there is no even an order declaring that the case shall proceeded ex parte against the respondent. Again, I have gone through the judgment of the trial court to see whether the judgment was given ex parte but I found nothing indicating the same. Thus, the regulations cited by the appellant’s learned advocate in my view, are not applicable as there is no ex parte judgment so far. What I could gather from the proceedings of the trial court is that, no order made for ex parte judgment rather, the court ordered for the date of judgment and delivered the judgment on the declared date as if all the parties prosecuted their cases. Therefore, the complaint that the district court erred in setting aside the ex parte judgment is baseless. The district court did set aside the trial court’s judgment and not an ex parte judgment as claimed by the learned 9 counsel for the appellant. It was the district court’s findings, and rightly so observed by this court that the trial court’s action manifested irregularity and illegality for contravening the right to be heard. It denied the respondent the right to be heard which is among the basis of fair trial as enshrined under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. The right to be heard was discussed at length in the case of Mbeya- Rukwa Autoparts and Transport Ltd vs. Jestina George Mwakyoma (2003) TLR 252 and Abbas Sherally and Another vs. Abdul S.H.M Fazalboy, Civil Application No. 3 of 2002 (unreported). In Abbas Sherally and Another (supra), it was stated that: ‘The right of the party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same would have been reached had the party been heard, because the violation is considered to be a breach of natural justice’. [emphasis added]. From the quote above, the Court of Appeal insisted on the right to be heard. It is a constitutional right which has to be protected profoundly. In the instant appeal, the trial court acted hurriedly in dictating the date for 10 judgment without any order justifying its decision. This court has failed to grasp the necessity of the trial court in rushing to the judgment. It is this court’s considered view that, when dealing with the principles of natural justice greater care has to be exercised. This was so affirmed in the case of Golden Globe International Services and Another vs. Millicom Tanzania N.V and Another (Civil Application No. 195/01 of 2017) [2017] TZCA 193 (23 June 2017). The Court of Appeal stated that: ‘Although we agree with the learned advocates for the applicants that at times "justice hurried is justice buried"; on the other hand one cannot turn a blind eye to the fact that "justice delayed is justice denied". It is therefore, the duty of the Court to strike a delicate balance between these two conflicting interests, which are irreconcilable in the administration of justice, as both are inherent to the fundamental human rights and freedom guaranteed by the supreme law of the land.’ [Emphasis added]. The Court in this passage directs that courts have to strike a delicate balance between the two irreconcilable interests that is, between justice hurried is justice buried and justice delayed is justice denied. That is, the impact of the time spent already, and the speed of dispensing justice with its implication to either party. Accordingly, time is of essence in dispensing justice. That, the courts have to consider how long the matter has been in court before making any decision which will affect the fundamental rights 11 of either party. In the instant appeal, the trial magistrate appended no reason to his hasty decision. By so doing he did not strike a balance between the two interests. The trial court’s proceedings show that the matter was called for the first time on 16th November, 2023. The case was called again on 23rd November, 2023 and hearing of the claimant’s case was on 30th November, 2023 whereby all the parties never missed in court. The trial court scheduled for defence on 5th December, 2023. On that, date the defendant/respondent did not appear. As a result, the court set the date for judgment to be on 11th December, 2023. With this trend of attendance by all the parties to the case, where is the balance between hurrying the decision and taking reasonable time for the same. Was there any delay in the delivery of justice? The answer is in the negative. The case took at least two weeks to the closing of the claimant’s case. In similar circumstances, the Court of Appeal in the case of Simon Pius Mwachilo vs. Gratian Thadeo Mutashobya & Others (Civil Appeal No.286 of 2021) [2023] TZCA 17495 (11 August 2023) held that: ‘Justice hurried is justice buried in the sense that, a rush in the delivery of justice can also lead to incorrect and unjust outcomes. Hence, the latter phrase is used to caution against hasty decisions in the name of expediency, bearing in mind 12 that speed is good but justice is better and the spirit of justice does not reside in hasty decision but rather in just decision.’ With the interpretation ascribed to by the Apex Court of the land, on the hasty decisions, it is very clear that, before making a hurried decision the court has to warn itself on the outcome of the decision thereof, so should the trial court would have done prior to its decision to set date and deliver judgment without affording the defendant/respondent the right to be heard. What purpose the trial court saved in the hurried decision? No justification of the hasty decision. Therefore, it was not correct for the trial court to rush to the composure and delivery of judgment while denying the defendant/respondent the fundamental right to be heard. In the final event, based on what I have endeavored to discuss herein above, I find the appeal has no merit and it is accordingly dismissed. Consequently, the district court’s decision is upheld. This is a matrimonial appeal, each party to bear its own costs. It is so ordered. DATED and DELIVERED at SONGEA this 10th day of October, 2024. E. L. KAWISHE JUDGE 13 COURT: Judgment delivered in the presence of Ms. Naomi John Ngoga advocate holding brief for Mr. Eliseus Ndunguru learned advocate for the appellant and in the presence of the appellant and the respondent in person. Right of appeal explained. E. L. KAWISHE JUDGE 10/10/2024 14