Luckson Rutafubibwa Kiiza vs Erasmus Ruhungu (Civil Appeal No. 375 of 2021) [2022] TZCA 3034 (13 July 2022)

LUCKSON RUTAFUBIBWA KIIZA (The Administrator of the Estate of the late Angelina Bagenyi v. ERASMUS RUHUNGU (The Administrator of the Estate of the 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- Deciding the matter without hearing the parties- whether it renders the decision void. This appeal arose from the decision of the High Court of Tanzania in an Application for Revision where the Respondent had sought revision of the decision of the Resident Magistrate’s Court of Bukoba, which had revised execution proceedings originating from Rukindo Primary Court Civil Case No. 19 of 1996. The appellant, Angelina Bagenyi (now deceased), raised a preliminary objection on three grounds: (i) improper invocation of the court’s jurisdiction, (ii) lack of jurisdiction, and (iii) time-barred application. The High Court overruled the objection and proceeded to determine the revision, ultimately dismissing the application for lack of merit. The learned High Court Judge found that all the grounds thereof were 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 the hearing, the Court of Appeal was informed of the appellant’s demise and granted a request to substitute her with Luckson Rutafubibwa Kiiza, the administrator of her estate, without objection from the respondent. Held: (i) A decision reached without affording the parties a right to be heard is a fundamental error that renders the decision void.

Appeal allowed. Statutory Provisions referred to: (i) Constitution of the United Republic of Tanzania [Cap. 2 R.E 2019] Article 13(b)(a) (ii) Court of Appeal Rules, 2009 as amended rule 105(1) Case referred: (iii) Transport Equipment Limited v. Devram Valambhia [1998] T. L.R89 (iv) Eco-Tech (Zanzibar) Limited, Znz Civil Application No. 1 of 2007 (unreported) (v) 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