RHOBI MANGOMBE VS PAULINA WANGISHO 0001

IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA (CORAM: MWARIJA. J.A., MWAMPASHI, J.A. And MURUKE. J.A) CIVIL APPEAL NO. 215 OF 2021 RHOBI MANG'OMBE..................................................................... APPELLANT

VERSUS PAULINA WANGISHO .............................................................. RESPONDENT (Appeal from the Ruling and Extract order of the High Court of Tanzania, at Mwanza) f Rumanvika. JT dated the 12th dav of November, 2019 in Misc. Land Application No. 110 of 2019

JUDGMENT OF THE COURT 29th & 31st May, 2024 MURUKE 3. A: The appellant, Rhobi Mang'ombe, seeks to challenge the decision of the High Court of Tanzania, Mwanza District Registry, in Miscellaneous Land Application No. 110 of 2019, dated the 12th November, 2019. In that application, the appellant was seeking restoration of her application (Misc. Land Application No. 122 of 2016) for a certificate of point of law which was dismissed on 28/05/2019 for want of prosecution. The background facts giving rise to this appeal, are that, in 2012, Paulina Wangisho, the respondent herein, instituted a land dispute at Uwanja i wa Ndege Ward Tribunal in Serengeti District, claiming ownership of piece of land she had inherited from her father, in which the appellant had constructed the house. The Ward Tribunal decided in favour of the respondent thus ordered the appellant to vacate the dispute area. Aggrieved by the decision of the trial Tribunal, the appellant successfully appealed to the District Land and Housing Tribunal which reversed the Ward Tribunal decision. Paulina Wangisho, the respondent, was not pleased, she successfully appealed to the High Court, as a result, the appellant filed the application for certification of point of law to the High Court, as the matter originated from the Ward Tribunal, to be able to appeal to the Court of Appeal. However, her application was dismissed for

want of prosecution. Believing that her non appearance on the date of hearing was not dilatory, but was with sufficient reason excusable by law, she made an application for restoration of the dismissed application through Misc. Land Application No. 110 of 2019. Upon hearing the parties, the High Court (Rumanyika, J. as he then was) dismissed the application for want of merit, thus the present appeal raising following grounds.

1. That, the learned Judge erred in law by dismissing the Miscellaneous Land Application No. 110 whereby the appellant had sought a certificate on point o f iaw to be considered by the Court o fAppeal.

2. That, the learned Judge erred in law to dismiss the appellant's application while there were sufficient reasons given by her for the restoration o f the same.

3. That, the learned Judge erred in iaw for failure to consider that dismissal o f the said application; the respondent would get possession o f the land which does not belong to her and/or emanated from the nullity proceedings.

4. That, the learned Judge erred in iaw by determining the merit o f application o f certificate without hearing the parties.

5. That, the learned Judge erred in law for the failure to rule out whenever sufficient points o f law are raised, it is worth for it to be determined by the Court o fAppeal.

6. That, the learned Judge erred in law as he pointed out the two point o flaw andproceeded to determine the matter incompetent. On the hearing of the appeal, the appellant was represented by Mr. Salehe Nassoro, learned counsel while the respondent was in person with no representation. The appellant's counsel prayed to adopt the written submission filed on 20th July, 2021, to form part of the appellant's submission in chief. In amplifying the grounds of appeal, Mr. Nassoro consolidated the 1st, 2nd and 3rd grounds of appeal and argued them conjointly, briefly that, on the date set for hearing of the application for certification of point of law, there was serious confusion as to the judge who was hearing the application, after several years of adjournment, with the application changing hands from one judge to another. The last order before the dismissal, the application was called on 11/04/2019 before Hon. Kingwele, Deputy Registrar, who set the date for hearing to be 28/05/2019 in the absence of all the parties. When the application came for hearing on the mentioned date above, it was dismissed because all the parties were absent. There was no notice of hearing, and the parties were not told if the application was assigned to honourable Rumanyika, J, more seriously, it was not reflected in the cause list of cases that were to be heard by hon. Rumanyika, J. on 28th May

2019. The applicant's counsel, went on submitting that failure to include changes created serious confusion. Above all, he argued, they explained in details in the affidavit in support of the application for restoration but the same was not accepted by the High Court, and the application was dismissed at the detriment of the appellant for being condemned unheard. The appellant's counsel further argued that, Misc. Land Application No. 122 of 2016 disclosed very serious pure points of law as seen at page 88-89 of the records of appeal, specifying the issue of the Assessor's opinion and issue of time limitation used by the High Court Judge to dismiss the appellant's appeal, citing to us the case of Erizeus Rutakubwa v. Jason Angelo 1983 T.L.R. 365, in which it was held that; "Cause o f action starts to run at the date when the deceased passed away and not later on when the person became aware". The respondent who was not represented but who seemed to understand her case well, stood firm and argued that, the dismissal was proper. On being probed by the Court as to whether she was present on the date the application on certificate of point of law before Hon. Rumanyika, J, was dismissed, she replied, that there was serious confusion on that date. She did not know if the case was before Hon. Rumanyika, J, she was outside before Siyani, J's office, thinking that her case was before

him. Later on, she was told by the clerk that the case has already been dismissed before Rumanyika, J. On further question by the court, as to whether it was proper for the application to be dismissed in the absence of both parties, and that, the appellant's concern is for both parties to be heard on merits, the respondent was quick to reply that she is willing the application be heard on merits, insisting that for several years she has been appearing all the time once the case was called on. In resolving grounds 1, 2 and 3, we will let the records of Misc. Land Application No. 122 of 2016 as seen at page 105 of the record speak by itself. Date: 11/04/2019 Coram: Kingwe/e, DR Applicant Respondent Absent B/C: Mr. Leonard, RMA Order: Hearing on 28/05/2019 Sgd: O. H. Kingwe/e

DEPUTY REGISTRAR 11/04/2019 Date: 28/05/2019 Coram: S. M. Rumanyika, J Applicant ~~ Respondent Absent B/C: ~~ Ms. Warsha, RMA Order: Application dismissed. Reason on 03/06/2019 at 9:00 am. Parties be notified. Sgd: S. M. Rumanyika

JUDGE 28/05/2019 Then, the reasons were adduced on the date mentioned that is 3rd June, 2019, as seen at page 107 of the record. Our reading of the reasons for decision at paragraph two line 18-23 and page 108 line 1-4, the High Court Judge discussed merits of the application he has dismissed despite warning himself. If was not proper for the high Court Judge to justify his dismissal order by one discussing merits of the application he has dismissed. Two, assuming it was proper to discuss, which is not the case, yet he did not invite parties to address him on the issues. From the records reproduced above, the submission by the appellant's counsel and admission by the respondent that they both did not appear, there is no dispute that, the appellant was condemned unheard, contrary to principals of natural justice, that entails giving notice to the affected person and giving him a fair hearing. It is established principal of the law that, he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right. It is a cardinal principle of natural justice that a person should not be condemned unheard but fair procedure demands that both sides should be heard: audi alteram partem. In Ridge v. Baldwin [1964] AC 40, the leading English case on the subject, it was held that a power which affects rights must be

exercised judicially, that is fairly. We agree and therefore hold that it is not a fair and judicious exercise of power, but a negation of justice, where a party is denied a hearing before its rights are taken away. As similarly stated by Lord Morris in Furnell v. Whangarei High School Board [1973] AC 66, 679, that Natural Justice is but fairness with large and judicially. So important is the principle that it has now become part of our constitutional foundation, as enriched in Article 13 (6) (a) of the Constitution. This means that natural justice enjoys a more elevated status than merely becoming a common law principle. It is now an attribute of equality before the law. The right to a fair trial is a fundamental right enshrined under Article 13(6)(a) of the Constitution. The said Article states as follows:- "13 (6) (a) when the rights and duties o f any person are being determined by the Court or any other agency, thatperson shall be entitled to a fair hearing and to the right o f appeal or other legal remedy against the decision o f the Court or o f the other agency concerned". In the famous case of Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R. 251., it was held by the Court that any attempt to stifle the realization of this right to be heard has dire consequences, irrespective of whether the same verdict would be arrived had the party been

accorded that right. It is our finding and we hold that the order and ruling in the High Court dismissing the application for certification of point of law in Misc. Land Application No. 122 of 2016 were shrouded with illegality. Thus, we quash the Ruling and orders thereat. Automatically, proceedings in Misc. Land Application No. 110 of 2019 which stem from the nullity cannot be left to stand, thus, the proceedings are quashed and the ruling and orders are set aside. Based on what we have discussed, we find merits in the 1st, 2nd, 3rd and 4th grounds of appeal. Since the grounds are sufficient to dispose of this appeal, we find no need to discuss other grounds. We further order the records of the High Court in Misc. Land Application No. 122 of 2016 be remitted to the High Court for an expedited hearing to proceed from the stage reached prior to 28th May, 2019. 9 In conclusion, the appeal is allowed on the grounds discussed above. Considering the nature of infraction in the proceedings, we make no order as to costs. DATED at MUSOMA this 31st day of May, 2024. A. G. MWARD A

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL Z. G. MURUKE

JUSTICE OF APPEAL The judgment delivered this 31st day of May, 2024 in the presence of Mr. Salehe Nasoro, learned counsel for the appellant through video link from Mwanza and Ms. Paulina Wangisho, unrepresented present in person, is hereby certified as a true copy of the original G. H/HERBERT

DEPUTY REGISTRAR

COURT OF APPEAL