st augustine university of tanzania saut v 94 security co ltd 2023 tzhc 19218 26 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA DC. CIVIL APPEAL NO. 03 OF 2023 (Originating from Songea District Court in Misc. Civil Application No. 09 of2023) ST. AUGUSTINE UNIVERSITY OF TANZANIA (SAUTI) ......... APPELLANT VERSUS 94 SECURITY CO. LIMITED ............................ RESPONDENT JUDGMENT Date of last Order: 10/07/2023 Date of Judgment: 26/07/2023 U.E. Madeha, J. To begin with, the above-named Appellant, was the Applicant before the District Court of Songea in which he filed an application requesting for the Court to set aside an ex-parte judgment which was delivered against him in Civil Case No. 01 of 2020. As a matter of fact, the application was struck out for the reason that it was time bared and the case number found on the written submissions filed by the parties being different from that found in the Court records. Aggrieved by that decision, the Appellant i lodged this appeal on four grounds of complaint which are none other than: /. That, the learned Magistrate erred in law by raising issues suo moto and determining the same without inviting the parties to address on those issues which is a gross breach of the right to be heard, ii. That, the teamed Magistrate erred in taw in sustaining the raised grounds of Preliminary Objection since they could have been cured by the overriding objective principle for substantialjustice. iii. That, the learned Magistrate erred in law for failure to compose the ruling on the matters in which the parties were heard. iv. That the learned Magistrate erred in law and fact to struck out the application while it was within time as the ruling for extension of time was granted on 29 h, June 2023. Briefly, the back ground of this appeal is to the effect that; the Appellant filed an application to set aside the ex-partejudgment which was delivered against him on 05th November, 2021. It is worth considering that, the application was ordered to be argued by way of written submission and both parties filed their written submissions as scheduled. Then, the matter was scheduled for ruling on 4th day of April, 2023. In its ruling the Trial Court vacated the submissions made by the parties and in its decision based on two factors that the application was time bared and the written 2 submissions filed by the parties referred to a case number which was different from the case number which was found in. the Court records. Principally, the two (02) factors were raised by the Court in its suo moto, Ss, basing on those factors the application was struck out. Hence, this appeal. In that case, when this appeal was placed before me for hearing on 10th July, 2023, the Appellant enjoyed the legal service of none other than; the learned advocate Mr. Zuberi Maulid, whereas the Respondent was represented by none other than Mr. Vicent Kassale, the learned advocate. The two learned advocates argued in this appeal on behalf of the parties. It is important to note that, in this appeal, the Respondent opted not to file the reply to the memorandum of appeal. In fact, at the outset of the hearing of the appeal, the Respondent's learned advocate joined hands with the Appellant's learned advocate. On the same note, the Respondent's learned advocate in his arguments in support of the appeal submitted that the parties were not given an opportunity to be heard before the Trial Court since it raised issues in suo moto and proceeded to decide without giving a chance to the parties to address the Court on those issues. To add to it, he argued that the Trial Court erred in law in deciding that the 3 application was filed out of time while there was an order granted by the Tria! Court for extension of time whereby the same was observed by the parties. Mr. Kassale also added that the Trial Court wrongly decoded the matter by raised an issue of contradiction of the case numbers between those found in the written submissions filed by the parties and the records of the Court and based on it in vacating the submissions made by the parties. Furthermore, he added that the Trial Court erred in law by vacating the submissions made by the parties and deciding the application basing on the new issues raised suo motoby the Court without affording a chance to the parties to address on those issues. In addition, he contended that the parties were not afforded with the right to be heard which is their legal requirement. Lastly, he prayed for this appeal to be allowed without costs. On the other hand, Mr. Zuberi Maulid conceded to the submissions made by the Respondent's learned advocate and added that where a Court raises an issue in suo moto, it is a legal requirement that parties must be heard before deciding the issue and failure of that will occasion to denial of the right to be heard which is the basic principle in administration of 4 justice. In the same manner, he added that the right to be heard is protected under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. To cement it, the Appellant's learned counsel supported this argument with the decision of the Court of Appeal of Tanzania made in the case of MIC Tanzania Ltd v. Mayunga Saduka & Four Others, Civil Appeal No. 145 of 2020. Also, on the issue of the anomaly which the trial Court found on the case numbers which were differently cited between the documents filed by the parties and the records of the Court, he submitted that the Court would have not reached into the decision it made if the parties would have been given an opportunity to be heard. To crown it all, he further argued that the anomaly was also curable by the Court if it would have considered the principle of overriding objectives. He added that the issue of case numbers7 contradictions was caused by the Trial Court in its internal arrangements and it was within its ambit to rectify it. In fact, the parties were not to be blamed on that. The learned advocate for the Appellant prayed for this Court to allow the appeal without costs by setting aside the decision made by the Trial Court. He also prayed for the case records to be remitted to 5 the Trial Court for determination of the application by another Magistrate with competent jurisdiction. As much as I am concerned and having considered the grounds of appeal and the uncontended submissions made by both parties, I find that; the first three grounds of appeal boil down into one issue which is whether the Trial Court was correct by raising issues and resolving them without affording the parties with an opportunity to be heard. In fact, those grounds are so much concerned with the fundamental right of being heard. It is worth considering that, from the records of the Trial Court, it is crystal clear that the appealed decision was from an application which was heard by way of written submissions. When the filing of the written submissions was complete, the application was scheduled for ruling. In the course of composing the ruling, the learned Magistrate found that the application was filed out of time and the case number found on the written submissions filed by the parties was different to that depicted on the register of the Court. For those reasons, the application was struck out and the written submissions filed by the parties were not considered. However, in the wording of the first, second and third grounds of appeal, the Appellant is faulting the Trial Court for raising the two issues 6 and deciding them without affording the parties with an opportunity to address on the raised issues, Notably, the Respondent supported the appeal on those grounds of appeal on the view that the parties were denied the right to be heard. The learned advocates for both parties in their submissions majestically argued that whatever was done by the Trial Court was violation of the right to be heard which is enshrined for under Article 13 (6) (a) of The Constitution of the United Republic of Tanzania, 1977. To buttress his arguments, the Appellants learned advocate also referred the Court to the decision of the Court of Appeal of Tanzania made in the case of MIC Tanzania Ltd v. Mayunga Saduka & Four Others {supra}. After careful consideration of the original records of the Trial Court, the grounds of appeal and the submissions made by the learned counsel for both parties, it is obvious that the Trial Court raised the two issues in sup moto and resolved them without giving a chance for the parties to address on those issues. That is to say, the parties were were denied the constitutional right to be heard. The right to be heard is among the fundamental rights and attributes of equality before the law. To crown it all, reference is made in the case of Abbas Sherally and Another v. 7 Abdul Fazalboy, Civil Application No. 33 of 2002, in which the Court of Appeal of Tanzania held that: "The right of a party to be heard before adverse action is taken against such party has been stated and emphasized by the 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 decision would have been reached had the party been heard, because the violation is considered to be a breach of naturaljustice." Principally, as stated above, in this appeal the Trial Court in sub mote raised issues on point of law and proceeded to determine them without inviting the parties to address on those issues. Surprisingly, the Trial Court found that the issues had merit and proceeded to struck out the application without taking into consideration the submissions filed by the parties. On such circumstances, I find that the parties were entitled to be invited in order to address the Trial Court on the issues which were raised suo motof failure to afford that right to the parties is taken to be denial of the fundamental right to be heard which vitiates the ruling and orders given by the Trial Court. 8 Having exhaustively discussed on the first, second and third grounds of appeal, I find that the fourth ground of appeal has also been disposed of to the extent that the Trial Court erred in law to struck out the application on the ground that it was filed out of time, the decision which was given without affording the parties the right to be heard. In the event, I find this appeal has merit and I proceed to allow it by nullifying the decision and its orders delivered on the 4th day of April, 2023 for violation of the right to be heard. Consequently, I order the records of this case to be remitted back to the Trial Court and be assigned to another Magistrate who will proceed with the matter from the date when it was scheduled for judgment. To add to it, if the assigned Magistrate will find that there is a need to take into consideration the issues that were raised by the Trial Court, he/she should invite the parties to address the Court on those issues. On the circumstances of this appeal in which the Respondent did not resist, the appeal is allowed and I order the costs of this appeal to be shared by both parties. It is so ordered. 9 DATED and DELIVERED at SONGEA this 26th day of July, 2023. U. E. MADEHA JUDGE 26/07/2023 COURT: This judgment is read over in the presence of Mr. Zuberi Maulid, the Appellant's counsel and Mr. Vicent Kassale, the Respondent's counsel. Right of appeal is explained. U. E. MADEHA JUDGE 26/07/2023 io