Lugwisha s/o Ng'winamila vs James s/o Lugwigwi (Civil Appeal No.195 of 2019) [2023] TZCA 17577 (29 August 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: WAMBALI. J.A.. MWANDAMBO. J.A. And MAIGE. J.A.l CIVIL APPEAL NO. 195 OF 2019 LUGWISHA S/O NG'WINAMILA ............................................................. APPELLANT VERSUS JAMES S/O LUGW IGW I........................................................................RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania, Mwanza District Registry at Mwanza) fRumanvika. J. ) Dated the 21st day of January, 2019 in Civil Appeal No. 09 of 2017 JUDGMENT OF THE COURT 24th & 29th August, 2023 MAIGE. J.A.: At the District Court of Misungwi (the trial court), the appellant instituted a suit against the respondent for payment of TZS 15,000,000.00 as general damages for defamation. The defamation in question was alleged to have been committed in the proceedings of the meeting of a church under the chairmanship of the respondent.

In the course of hearing, the appellant raised a preliminary objection to the effect that the respondent's counsel, Mr. Alphonce P. Sebukoto who was by then in the service of the District Council, was not a fit person to represent the respondent. The trial court sustained the preliminary objection and disqualified the said advocate. As a result, the hearing of the suit was made ex parte and eventually, the trial court prounced a judgment in favour of the appellant for payment of the amount as afore stated. Aggrieved, the respondent appealed to the High Court in Civil Appeal No. 9 of 2017 for among other grounds that; the trial magistrate was wrong to proceed with the matter ex parte after disqualifying the respondent's advocate without affording him an opportunity to engage another advocate. In opposition to the appeal, the respondent raised a preliminary objection to the effect that, the appeal was premature as the respondent would not challenge the order to proceed ex parte by way of appeal without first applying to set it aside. The High Court Judge in essence sustained the preliminary objection and declared the appeal before him incompetent. In his view, by preferring an appeal against the justification to proceed ex parte, 2

the respondent was turning the appeal as an alternative to an application for setting aside an ex parte judgment. The finding on the preliminary objection aside, the High Court framed the grounds of appeal into issues and proceeded to determine the same on their merit. Finally, it answered all the issues against the appellant and, thus, allowed the appeal. The appellant is unhappy with the decision and, hence the present appeal. In the memorandum of appeal, the appellant has raised seven grounds of appeal all of which, in our careful reading, seek to fault the decision of the High on merit. The decision sustaining the preliminary objection, it would appear, has not been doubted. That being the case, therefore, we shall only consider the first two grounds of appeal which challenge the High Court for determining the merit of appeal despite its decision that the appeal was incompetently before the court. The said grounds read as follows:

1. That the honourable Judge o f the High Court (the first appellate court) erred in law by denying the appellant right to be heard.
2. That the honourable Judge o f the High Court erred in law to entertain the appeal while the prelim inary objection on point o f law

concerning the High Court C ivil Appeal No. 09 o f 2017 was sustained. At the hearing, both the parties appeared in persons without representation. Each of them, when called upon to address the grounds of appeal, fully adopted his written submissions to read as part of his oral arguments. While the appellant urged us to allow the appeal with costs, the respondent urged us to dismiss the same with costs. Having closely followed their contending arguments in line with what is on the record of appeal, we shall herein after consider the merit or otherwise of the appeal to the extent of the two grounds. As the two grounds are so interwoven that they cannot be separated, we find it necessary to deal with them simultaneously as we hereby do. In his written submissions, the applicant contended, in respect of the first ground that; as the determination of the appeal on merit was made without him being accorded a right to be heard, the decision thereof was a nullity. On the second ground, it was his submissions that, after upholding the preliminary objection and declaring the appeal incompetent, the High Court should have dismissed the appeal rather than determining it on merit.

In his submissions in rebuttal, the respondent argued that the High Court did determine the appeal on merit after upholding the preliminary objection. Instead, he submitted, it invoked its revisional powers to correct the apparent irregularities in the record of the trial court. On the first ground, it was his contention that both parties were afforded a right to be heard and that is why they each addressed the trial court on the preliminary objection. He thus urged us to dismiss the appeal on merit. Having carefully gone through the rival submissions in line with the record, we are satisfied that, this appeal, to the extent of the first two grounds of appeal, has merit. We shall rationalize our view gradually as we go along. As the record speaks, what was before the High Court Judge on the date of hearing, was the point of preliminary objection raised by the respondent. The hearing confined itself to the preliminary objection and as such neither of the parties was afforded an opportunity to address the High Court on the merit or otherwise of the appeal. Upon consideration of the submissions, the High Court Judge sustained the preliminary objection. Quite unusually, after sustaining the same, and, without making any comment on what was the legal effect of his finding, the High Court Judge made the

following remarks at page 72 of the record of appeal and proceeded to determine the appeal on merit: " W ithout prejudice to the foregoing , and, in the exercise o f revision powers conferred upon me, I w iii now see into whether Mr. Sebuioti (sic) was properly disqualified, respondent was denied a right to be heard, and whether the case was, on the balance o f probabilities proved." The respondent submits that the approach taken, in so far as it sought to correct some irregularities on the record of the trial court by way of revision, was right. We cannot agree with him because whether the claim by the appellant was proved or not was a pure point of fact which went to the correctness of the assessment of evidence. On top of that, whether the High Court was entitled to deal with the propriety of the order of the trial court to proceed ex parte, was an issue which was conclusively adjudicated upon by the High Court and answered negatively. Having held that, the High Court, in our view, became fanctus officio to decide on the correctness or otherwise of the justification of the trial court to proceed ex parte.

Besides, it is not true, as the respondent submitted that, the decision of the High Court was in exercise of the revisional power. We say so because at the end of the judgment, the High Court determined all the grounds of appeal and allowed the same. In our view, in issuing a decree allowing the appeal, the High Court exercised its appellate jurisdiction and not revision. Even if it was to be assumed, for the sake of argument, that the revisional jurisdiction was properly exercised, yet the trial court was bound to afford the parties opportunity to submit on the issues necessitating for revision. Otherwise, a decision made in curtailment of the parties' right to be heard is as good as no decision. We said this very clearly in the case of Deo Shirima and Two Others v. Scandinavian Express Services Limited, Civil Application No. 34 of 2008 (unreported), where was observed: "The law that no person shall be condemned unheard is now legendary. It is trite law that any decision affecting the rights or interests o f any person arrived a t without hearing the affected party is a nullity, even if the same decision would have been arrived a t had the affected party been heard. This principle o f law o f respectable antiquity needs no authority to prop it up. It is common knowledge".

For the foregoing, therefore, the appeal has merit and it is, to the extent of the two grounds of appeal allowed. Consequently, the part of the judgment of the High Court which determined and allowed the appeal on merit is nullified. It is substituted with an order striking out the appeal with costs. DATED at MWANZA this 26th day of August, 2023. The Judgment delivered this 29th day of August, 2023 in the presence of the appellant and the respondent both in person unrepresented, is hereby certified as a true copy of the original. F. L. K. WAMBALI JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL 8