Upendo Edson Mgaya vs Taimu Sanga

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA CIVIL REVISION NO. 3491 OF 2024 (Arising from Matrimonial Appeal No. 1/2019 of the District Court ofIringa at Iringa before Hon. R.R. Kaseje,.SRM, Original Matrimonial Cause No. 32/2028 of the Primary Court of Iringa District at Bomani before Hon, R. Telemkeni, PCM) UPENDO EDSON MGAYA ............... ................ . APPLICANT VERSUS TAIMU JACKSON SANGA .... ............. ........ . RESPONDENT RULING 30!i July & 30:- October 2024 D.B NDUNGURU, J: This is a judgment on a revision prompted by the court suo motu 6\j£. to existence of two conflicting decisions of the District Court in Matrimonial Appeal No. 1 of 2019. In order to appreciate the dispute between the parties, I find it proper to start by giving a brief history of the matter. i The parties were husband and wife. Their union turned sour. This led the applicant to petition for divorce before the Primary Court of Iringa at Bomani. The court upon granting divorce, divided matrimonial properties and gave the respondent custody of children. Aggrieved by this decision, the applicant filed Matrimonial Appeal No. 1 of 2019 to the District Court. i The proceedings before the appellate shows that on 15th November 2019, the learned Senior Magistrate after hearing the applicant only, struck out the appeal and gave parties leave to refile the appeal at their convenient time. Subsequent to this order, on 15th June 2020 the learned Senior Magistrate again made an order suo motu nullifying the proceedings and judgment of the trial court and directing the parties to file a fresh case. The said order was made without affording the parties the right to be heard. When the court noted this irregularity, it invited the parties to addess it on the propriety of the proceedings before the appellate court. Mr. Shaba Ntung'e, advocate for the applicant argued that the proceedings of 15th November 2019, does not show that the respondent was afforded an opportunity to be heard. In addition to that, the proceedings dated 15th June 2020 do not show that parties, were afforded the right to be heard before the court made its findings. In his view, the proceedings and consequential orders ought to be nullified and an order for rehearing of the appeal be issued. On his part, the respondent who appeared in person conceded with the learned advocate's views. He added that he was not afforded his right 2 to be heard. He thus urged the court to nullify the proceedings and decision made and order retrial. I have considered the parties' submissions and the proceedings on record. Indeed, the proceedings before the District Court dated 15th November 2019 do not show that the respondent was heard. Further, the court reopened proceedings suo motu without affording the parties the right to be heard. It appears therefore that parties were not afforded the right to be heard. This is contrary to the rules of Natural Justice. The right to be heard was emphasized in Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 133 of 2002, Court of Appeal - Dar es Salaam (unreported). In this case, the Court stated: "The right of a party to be heard before adverse action or decision is taken against such a 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 natural justice". 3 Based on the above authority, not affording the parties the right to be heard vitiated the proceedings. I, therefore, nullify the proceedings in Matrimonial Appeal No. 1 of 2019 and set aside the orders therein. I direct that the appeal be heard afresh before another Magistrate with jurisdiction. 26/9/2024 4