| dc.description | LUCKSON RUTAFUBIBWA (The Administrator of the Estate of late Angelina Bagenyi VS. ERASMUS RUHUNGU (The Administrator of the Estate of late Gaudensia Rwakailima
COURT OF APPEAL OF TANZANIA
AT BUKOBA
[MWARIJA, SEHEL, MAIGE, JJ.A.]
CIVIL APPEAL NO. 375 OF 2021
(From the Decision of the High Court of Tanzania at
Bukoba (Bongole, J.) dated the 8th day of June, 2018
in Revision Application No. 3 of 2017)
Rules of Natural Justice-Right to be heard-whether it is a fundamental constitution right
Rules of Natural Justice-Right to be heard-deciding the matter without hearing the parties-whether renders the decision void
This appeal arose from the ruling of the High Court of Tanzania sitting at Bukoba (Bongole, J) handed down on 8/6/2018 in Application for Revision No. 3 of 2017. The application was instituted by the respondent, Erasmus Ruhungu (as an administrator of the estate of the late Gaudensia Rwakailima) against the appellant, Angelina Bagenyi (now deceased). The respondent moved the High Court to revise the decision of the Resident Magistrate's Court of Bukoba in Misc. Civil Revision No. 3 of 2012 in which the said Court revised execution proceedings arising from Rukindo Primary Court Civil Case No, 19 of 1996. In response to the application for revision, the appellant lodged in the High Court, a notice of preliminary objection consisting of the following three grounds; that: "(i) The court has not been properly moved. (ii) The court is not clothed with jurisdiction to entertain the matter. (iii) The application has been hopelessly filed out of time. Having heard the learned counsel for the parties on the preliminary objection, the learned High Court Judge found that all the grounds thereof are devoid of merit and therefore, overruled the preliminary objection. After having disposed of the preliminary points of objection, the learned Judge proceeded to determine the application for revision. He acted on the submissions made on the preliminary objection to dismiss the application, holding that the same was lacking in merit. The appellant was aggrieved by the decision of the High Court hence this appeal.
Before commencement of the hearing Counsel for the Appellant informed the Court about the demise of the appellant. He pointed out that, one Luckson Rutafubibwa Kiiza was appointed by the Primary Court of Kashasha to be the administrator of her estate. He prayed, in the circumstances, that the administrator be made a party to the appeal. The prayer was not objected to by the counsel for the respondent and was therefore granted by the Court.
Held
1. "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 this country, natural justice is not merely a principle of the common law, it has become a fundamental constitution right Article 13(b) (a) includes the right to be heard among the attributes of equality before the law".
2. Since the parties were not heard before the application for revision was determined, the impugned decision is on that ground, void.
Appeal allowed
Statutory Provisions referred to:
1. Constitution of the United Republic of Tanzania [Cap. 2 R.E 2019] Article 13(b)(a)
2. Court of Appeal Rules, 2009 as amended rule 105(1)
Cases referred to:
1. Transport Equipment Limited v. Devram Valambhia [1998] T. L. R89
2. Eco-Tech (Zanzibar) Limited, Znz Civil Application No. 1 of 2007 (unreported)
3. Mbeya - Rukwa Autoparts and Transport Limited v. Jestina George Mwakyoma [2003] T. L. R. 251.
Mr. Zedy Ally Learned Counsel for the appellant
Mr. Abraham Lupia, learned Advocate for the Respondent | en_US |
