WILLIAM SANGIJA V MAKOYE SANGIJA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PROBATE CIVIL APPEAL NO. 26511 OF 2023 WILLIAM EDWARD SANGIJA.......................................................... APPELLANT VERSUS MAKOYE ONESMO SANGIJA...................................................... RESPONDENT JUDGMENT 23/7/2024 & 26/8/2024 ROBERT, J: This is an appeal by the appellant, William Edward Sangija, challenging the decision of the District Court of Magu in Misc. Civil Application No. 08 of 2023, which refused to grant the appellant's application for restoration of Probate Appeal No. 23 of 2022. The Probate Appeal was dismissed due to the non-appearance of the appellant's counsel on the scheduled hearing date. Dissatisfied with the District Court's decision, the appellant has preferred this appeal. The appellant initially lodged Probate Appeal No. 23 of 2022 at the District Court of Magu. However, the appeal was dismissed on 28th June 2023 following a request by the respondent's counsel due to the non- appearance of the appellant's counsel. The appellant subsequently filed an i application for the restoration of the appeal, which was registered as Misc. Civil Application No. 08 of 2023. The District Court dismissed this application, citing a lack of sufficient cause to reinstitute the appeal. Aggrieved by this decision, the appellant has preferred this appeal, raising the following grounds: 1. That the learned trial Magistrate erred in law and fact for dismissing the application. 2. That the learned trial Magistrate erred in law and fact by wrongly depriving the appellant of the right to be heard. During the hearing of this appeal, Mr. Michael Mlekwa Dudu, advocate, represented the appellant, while Mr. Geofrey Reuben Kishosha, advocate, represented the respondent. Counsel for the appellant, Mr. Dudu, abandoned the first ground of appeal and focused on the second ground. He argued that the appellant was denied the right to be heard, which is enshrined in Article 13(6)(a) of the Constitution of the United Republic of Tanzania. Mr. Dudu submitted that on the hearing date, the appellant had informed the Court that his advocate was bereaved and requested an adjournment, which the Court refused, leading to the dismissal of the appeal. 2 Mr. Dudu referred to the case of Pili Ernest vs Moshi Musani, Civil Appeal No. 39 of 2019, where the Court of Appeal of Tanzania emphasized the importance of the right to be heard as a fundamental constitutional right, citing the case of Mbeya-Rukwa Autoparts and Transport Limited vs Jestina George Mwakyoma (2003) TLR 251. The appellant's counsel argued that the decision to dismiss the appeal without considering the appellant's request for adjournment was a violation of natural justice. He prayed for the appeal to be allowed. In response, Mr. Kishosha, counsel for the respondent, acknowledged the right to be heard under Article 13(6)(a) but argued that this right must be exercised responsibly. He cited Article 30(1) to (5) of the Constitution, which limits the exercise of rights to ensure they do not infringe upon the rights of others or hinder the administration of justice. Mr. Kishosha contended that the appellant's counsel had a history of non-appearance, as evidenced by the court proceedings. He argued that the trial court had given the appellant ample opportunity to prosecute the appeal, but he failed to do so. The respondent's counsel referenced the case 3 of John Simon vs Siya Simon, Misc. Civil Application No. 59 of 2023 (unreported), where the Court held that a party cannot claim the right to be heard when they have chosen not to prosecute their case. Mr. Kishosha concluded by praying for the appeal to be dismissed with costs. In his brief rejoinder, Mr. Dudu reiterated that the appellant had always attended court, and it was the counsel who failed to appear. He argued that the appellant should not be penalized for the actions of his advocate and prayed for the appeal to be allowed. The primary issue for determination is whether the appellant was denied the right to be heard and whether the District Court erred in dismissing the application for restoration of the appeal. Article 13(6)(a) of the Constitution of the United Republic of Tanzania guarantees the right to a fair hearing. This right is fundamental and non­ derogable, as emphasized in numerous decisions, including Mbeya-Rukwa Autoparts and Transport Limited vs Jestina George Mwakyoma (2003) TLR 251. 4 However, the exercise of this right must be balanced with the need to ensure that court proceedings are conducted efficiently and without unnecessary delays, as provided under Article 30(1) to (5) of the Constitution. In the present case, the records indicate that the appellant's counsel was absent on several occasions without providing sufficient reasons or documentation to justify such absences. The Court adjourned the matter multiple times, providing ample opportunity for the appellant to prosecute the appeal. Despite this, the appellant's counsel continued to be absent, culminating in the dismissal of the appeal. While the appellant argued that he should not be penalized for his counsel's actions, it is crucial to note that litigants are bound by the actions of their legal representatives. The appellant had the option to seek alternative representation or request the Court to proceed in his counsel's absence. The right to be heard does not extend to allowing parties to unduly delay proceedings or fail to prosecute their cases diligently. In this case, the 5 District Court acted within its discretion in dismissing the appeal after multiple absences by the appellant's counsel. However, it is also important to consider that the appellant was present in Court on the day of the hearing and had requested an adjournment due to his counsel's bereavement. While the District Court may have been justified in its decision, a more prudent approach could have been to grant a short adjournment, considering the circumstances presented by the appellant. Additionally, this Court has observed inconsistencies in the records of the District Court regarding the case numbering. The appeal in question is sometimes referred to as Probate Appeal No. 23 of 2022 and at other times as Civil Appeal Case No. 23 of 2022. For instance, in the pleadings and typed proceedings, the matter is referred to as Probate Appeal No. 23 of 2022, while in the ruling of the District Court in Misc. Application No. 08 of 2023, it is referred to as Civil Appeal Case No. 23 of 2022. The District Court is reminded to ensure the accuracy of its records to avoid any confusion or potential prejudice to the parties involved. 6 In light of the above analysis, this Court finds that while the District Court did not act unlawfully in dismissing the appeal, it could have exercised more discretion by granting a short adjournment, given the appellant's circumstances. Consequently, this Court partially allows the appeal to the extent that the appellant's application for restoration of Probate Appeal No. 23 of 2022 is granted. The matter is remitted back to the District Court for hearing on the merits. Each party shall bear its own costs. It is so ordered. JUDGE' 26/8/2024 7