robert maziba vs emil maziba erasto maziba 2020 tzhc 820 29 april 2020

IN THE HIGH COURT OF TANZANIA (MWANZA DISTRICT REGISTRY) AT MWANZA (PC) CIVIL APPEAL NO. 14 OF 2019 (Appeal from the Ruling o f the District Court of Nyamagana at Nyamagana (Sumaye, SRM dated 2(fh o f October, 2018 in Civil Application No. 5 of 2018) ROBERT MAZIBA............................................APPELLANT VERSUS EMIL MAZIBA @ ERASTO MAZIBA................ RESPONDENT Date of the last Order: 28/04/2020 Date ofJudgment: 29/04/2020 JUDGMENT ISMAIL, J. The tale in this case may sound stranger than fiction but that is what happened. By an application filed under a certificate of urgency, the present respondent, Emil Maziba @ Erasto Maziba, moved the District Court of Nyamagana at Mwanza, to grant a trio of prayers one of which was to call, examine and revise the decision made by the Urban Primary Court of Mwanza in Probate and Administration Cause No. 72 of 1988. The decision sought to be revised was delivered on 27th November, 2017 and it ordered, inter alia, the distribution of the estate of the deceased among the beneficiaries. The appellant opposed the application. Besides filing a counter-affidavit, he raised four points of objections whose disposal was ordered to go by way of written submissions. The parties unfailingly conformed to the schedule for disposal of the matter. After a couple of adjournments, the matter was finally disposed of on 12th October, 2018. In its ruling, the District Court went far overboard and made a decision on the application, leaving undecided the preliminary objections in respect of which the submissions were preferred. Stunningly, the application in respect of which the ruling was delivered, was not addressed to by the parties. It is this decision that bred outrage from the appellant, hence his decision to prefer the present appeal. Two of the three grounds of appeal take a serious exception to the learned magistrate's wisdom of deciding the merits of the application without first making a finding on the objections, an act which is viewed by the appellant as a denial of the right to be heard. When the matter came up for before me, the respondent, who fended for himself, readily conceded to the appeal and confirmed the appellant's complaint that indeed, the District Court 'cut the queue' and went ahead to decide what was not yet ripe for disposal. He urged the Court to set aside the ruling and the order of the District Court, and remit the file back for composition and delivery of the ruling on the preliminary objections, and such other subsequent steps as it may be deemed appropriate. Noting that the confusion was caused by the court, he prayed that there should be no order as to costs. Mr. Emmanuel John, learned advocate whose services were enlisted by the appellant, concurred with the respondent's account of facts. Amenable to him as well, was the respondent's request for not condemning him to payment of costs arising out of the proposal to have the matter remitted back to the District Court. Not oblivious to the fact that the parties are in unison in their dismay at what the learned magistrate indulged in, I wish to reiterate the obligation that judicial officers have in deciding each and every issue framed. Failure to do so constitutes a serious infraction of the procedure and the impact is mammoth. It gets uglier if such breach leads, as is the case here, to dwelling on matters that were not the subject of discussion by the parties. In Alnoor ShariffJamal v. Bahadur Ebrahim Shamji, CAT-Civil Appeal No.25 of 2006 (DSM) (unreported), the Court of Appeal allowed the appeal with costs. In so doing, the senior Bench held at 9 as follows: "With due respect to the learned judge, we think that he abandoned what was before him and embarked on something that had, as yet, been asked o f him ...In the light o f the above considerations we find that the trial judge made a fatal error in failing to make a specific order relating to the petition that was before him which was a petition for extension o f time within which to file a petition to set aside an Award." The superior Court's decision was inspired by the decision in the case of Kukal Properties Development Ltd v. Matoo and others [1990-1994] E.A. 281 in which the Court of Appeal of Kenya persuasively held: "A judge is obliged to decide on each and every issue framed. Failure to do so constituted a serious breach o f procedure." Drawing an inspiration from the two cited decisions, it behooves me to hold that the parties' unanimous view that this botched decision was arrived at erroneously, is nothing short of a plausible conclusion. It follows, therefore, that the inevitable consequence is to have it taken out of the way, and I do so by allowing this appeal. This finding is consistent with the Court's decision in Kashaga v. Ernest Kahoya [1976] LRT No. 10 in which it was held: "The proper thing for the appellate Court to do where it is satisfied that in the case before it, there was a failure by the trial court to try the issues framed in the suit is to remit the case to the trial Magistrate and direct him to write a proper judgment which decides all questions o f fact arising from the issue framed." In view of the above, I quash and set aside the ruling, and remit the matter back to the District Court for composition of a new ruling which will determine the preliminary objections. The parties will bear their own costs. It is so ordered. DATED at MWANZA this 29th day of April, 2020. v 5 Date: 29/04/2020 Coram: Hon. M. K. Ismail, J Appellant: absent online (Mobile No. 0657 306924 Respondent: Present online (Mobile No. 0784 934 665 B/C: B. France Court: Now that following the global outbreak of the pandemic. COVID 19, and pursuant to the order of - (if any) Respondent is present online, the appeal is, by way of Audio Teleconference heard. M. K. Ismail JUDGE 29.04.2020 Court: Judgment delivered in chamber, in the presence of Mr. Emmanuel John, learned advocate for the appellant and in the presence of the respondent ' ■■ ■ • of Ms. Beatrice B/C, this 29th April, 2020. IK. Ismail At Mwanza 2&hApril, 2020 6