Jenifa Barakael Lyimo vs CRDB Bank Limited & Others (Civil Appeal No. 264 of 2024) [2025] TZCA 1076 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA fCORAM: MWANDAMBO, J.A, MAIGE J.A. And MANSOOR. J.A^ CIVIL APPEAL NO. 264 OF 2024 JENIFA BARAKAEL LYIMO APPELLANT VERSUS CRDB BANK LIMITED 1 st RESPONDENT KASSIMU MWALONGO 2 nd RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Iringa) f Feleshi, J.^ dated the 3rd day of May, 2018 6th & 13th October, 2025 MANSOOR. J.A.: This is an appeal against the decision of the High Court which denied the appellant an extension of time within which to file an application for restoration of an application which was dismissed for want of prosecution. in Misc. Land Application No. 54 of 2016 JUDGMENT OF THE COURT l

The background which brought about the present appeal could be traced from way back since 1997, when the applicant's husband one Anseiem W. Mauki took a loan of TZS 10,000,000 from the first respondent (CRDB Bank). As security for the said loan, the appellant's husband mortgaged his house situated at Plot No. 371 Kihesa, House No. 3, within Iringa Municipality (the property). The appellant's husband defaulted in repaying the loan. Due to the default, the property was sold by an auctioneer to Kassim Mwalongo, who is the 2n d respondent in this appeal. Before the 2n d respondent was given vacant possession of the property in 2006, the appellant filed Application No. 37 of 2006 before the District Land and Housing Tribunal for Iringa (the Tribunal) seeking to set aside the sale of the property to the 2n d respondent, as she claimed that, the property was a matrimonial property and she had never consented to the mortgage in accordance with the provisions of section 59 of the Law of Marriage Act, 1971. She succeeded as the Tribunal declared the mortgage null and void, and also declared her as the legal co-owner of the property. The 1st and 2n d respondents, that is, CRDB Bank and Kassim Mwalongo, respectively, appealed to the High Court at Iringa. On 21st August, 2012, the High Court allowed the appeal, thereby quashing the

decision of the Tribunal, and declared the mortgage as well as the sale of the property to the 2n d respondent, valid and lawful. About a year later, after the judgement of the High Court was pronounced, i.e., on 28th October, 2013, the appellant filed an application before the High Court at Iringa for extension of time within which to file the Notice of Appeal against the decision of the High Court. It was Misc. Land Application No. 27 of 2013, which was struck out for being incompetent. Again, on 1st July 2015, the appellant filed a fresh application for extension of time to file a Notice of Appeal, this was Misc. Application No. 30 of 2015. However, that application was dismissed on 24 November 2015 for want of prosecution. Then, the appellant filed Misc. Land Application No. 54 of 2016, for extension of time so that she could file an application for restoration of Misc. Land Application No. 30 of 2015. This application was dismissed on 3rd May 2018, for it was found unmeritorious. The appellant is now before the Court challenging the decision of the High Court in Misc. Land Application No. 54 of 2016, fronting two grounds of appeal as follows:

1. The High Court erred in law and facts by striking out paragraph 5 of the affidavit of the appellant suo motu without availing parties the right to be heard.

2. That the High Court erred in law and facts for refusing the application for restoration of Misc. Land Application No. 30 of 2015 without considering that she was never served with the summons or notice of mention or hearing of the application. In support of the grounds of appeal, the appellant's advocate, Mr. Rutebuka Samson Anthony, argued that, expunging paragraph five of the affidavit of the appellant without affording the parties the chance to address him, was a violation of the appellant's right to be heard, enshrined in Article 13 (6) (a) of the Constitution of the United Republic of Tanzania. On this, the Counsel referred to the case of Said Mohamed Said vs Muhusin Amiri and Muharami Juma, (Civil Appeal No. 110 of 2020) 2022 TZCA 208 (25 April 2022), in which we held that, when a judge finds a new issue cropping up in the process of composing the judgement, the settled law requires that parties must be given an opportunity to address the court on the issue before the court makes any determination on the issue so raised. We thus stated: "The m ore so, a tria l judge is obligated to decide the case on the basis o f the issues on record. As to what should a judge do in the event a new issue crops up in the due course o f composing a judgm ent, settled law is to the effect that the

new question or issue should he placed on record and the parties m ust be given opportunity to address the court on i t . " The Counsel therefore emphasized that the right to be heard is fundamental and that no decision of the Court should be made without availing the parties a chance heard, and that any breach or violation of the principle renders the proceedings and decision a nullity. On the 2n d ground of appeal, the counsel argued that the judge made an error in not considering ’that the appellant in Misc. Land Application No. 30 of 2015, was never served with a notice of hearing. That, despite the order issued by the High Court that parties to the application be served, no service was effected to any of the parties, and without satisfying himself as to whether the order of service of summons was complied with, the Judge proceeded to dismiss the application for the reasons that the appellant failed to prosecute her case because she failed to appear on the date the application was fixed for mention. In reply to the submissions made by the counsel for the appellant, Mr. Jovinson Kagirwa, learned counsel, who appeared for the 1st respondent, opposed the appeal stating that, the appellant's counsel had misapprehended the facts and the law, as the Judge did not actually strike out paragraph five of the affidavit of the appellant but considered

it and eventually disregarded it. He argued further that it is a violation of Order XIX Rule 3 of the Civil Procedure Code, Cap 33, (CPC) not disclosing the source of information, if the information is not from the deponent's own knowledge. Regarding the 2n d ground of appeal, Mr. Kagirwa stated that, the argument that the appellant was not served with the notice of hearing is out of place as it ought to have been raised in Misc. Land Application No. 30 of 2015, the application which was dismissed for want of prosecution. He submitted further that, the judge was correct to hold that, there were no sufficient grounds warranting the court to grant the extension of time sought. He thus, urged us to dismiss the appeal for being unmeritorious. For the 2n d respondent, Mr. Barnabas Pascal Nyaiusi, learned advocate, also opposed the appeal arguing that the grounds are baseless. He submitted that, it is not true that the judge did not afford parties a chance to be heard before he expunged paragraph five of the appellant's affidavit. He said, looking at paragraph 2 of page 8 of the Ruling of the High Court, it is vividly clear that the decision to expunge paragraph five of the affidavit was reached after considering the submission of the appellant's counsel, where the Judge said:

".....that autom atically renders the attendant subm ission by Mr. Kisakali in relation to the expunged paragraph unfounded . " Mr. Nyalusi agreed to the clear position that, the Constitution provides for the right to be heard but argued that in the present appeal, the appellant was never denied that chance and her right to be heard was never violated. On this, he referred to the case of Blue Rock Limited & Gem and Rock Ventures Co Limited vs Patrick Kiswivi Sanga (As Administrator of the Estate of the Late Abel Sanga), Civil Application No. 69/2 of 2023, [2024] TZCA 8. Mr. Nyalusi also opposed ground two of the appeal. He argued that the records are clear that the appellant abandoned her application as she did not make follow up. That, she filed the application in June 2015, and never made any efforts to follow up until the application was dismissed in November, 2015, and she has never shown that there is a day she had visited the court for following up, and the court refused to serve her with the summons. The counsel, therefore urged us to dismiss the appeal as it is short of any merits. We have carefully considered the record and submissions of the counsel representing the parties, case law cited, and the law, and the issues that call for our consideration are two; one, whether, the judge

had expunged paragraph five of the affidavit of the applicant without affording the parties the right to be heard, and two, whether there was sufficient cause warranting the court to grant the extension of time sought for restoration of an application which was dismissed for want of prosecution. From the record, it is true that, when determining Misc. Land Application, No. 54 of 2016, the learned judge expunged paragraph five of the appellant's affidavit for the reasons that the source of information stated in that paragraph was not disclosed, thus, he held, there was a violation of Order XIX Rule 3 of the CPC. It is also true as submitted by the counsel for the appellant that, this issue was raised suo motu by the Judge when he was composing the judgement. Parties neither raised it as an objection on point of law nor argued it in the course of their respective submissions. On this, we agree that parties were condemned unheard, and this is against a cardinal rule of natural justice which requires that no party should be condemned unheard on any issue that is decided by the court. All parties appearing before a court of law or tribunal have the right to be given the opportunity to present their case and be heard before any decision is made. Therefore, the learned Judge ought to have recalled the parties and gave them an opportunity to address him on the issue, if at all, he

found the issue to be so pertinent and necessary for the determination of the application, before he made anyfinding on it. The record clearly shows that, parties were not heard on the point of defectiveness of paragraph five of the affidavit before it was expunged. We have insisted in a number of our decisions that parties must be given sufficient opportunity to be heard, otherwise, it is a violation of Article 13 (6) (a) of the Constitution. See for instance, Mwajuma Bakari (Administratrix of the Estate of the Late Bakari Mohamed) vs. Julita Semgeni and Another, Civil Appeal No. 71 of 2022 [2022] TZCA 266, in which we held that; "Giving a party a sufficient opportunity to be heard is consistent with the principles o f fa ir hearing as envisaged underarticle 13 (6) (a) o f the Constitution o f the United Republic o f Tanzania > 1977, as amended from tim e to time. The said article directs that, when rights and duties o f any person are being determ ined by the court or any other agency, that person sh all be entitled to among others, a fa ir and fu ll hearing". Failure to give a party sufficient opportunity to be heard vitiates the entire proceedings and renders the resultant decision a nullity. See Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo, Civil Appeal No. 9

161 of 2016 and Director of Public Prosecutions vs France Dominicus Chiwangu @ Sharo (Criminal Appeal No.526 of 2021) [2023] TZCA 17522 (24 August 2023). Consequently, we find merit in this ground and sustain it. Regarding the second ground of appeal, the records speak loudly. On 15 August 2015, the presiding Judge issued an order that parties be notified. He said: n Pursuant to the chamber summons file d in this Court ie t the m atter come for m ention on 3/09/2015. Let a ll parties be notified." In this instance, the order of the court was never observed as parties were never summoned to appear for mention as ordered. The date for mention was fixed by the court in the absence of the parties, hence not known to them. The records also show that on 20/10/2015, the counsel for the first respondent entered appearance but informed the court that he was never served with summons to appear but heard it announced in the court corridors. However, the judge did not issue any order or directions after the counsel had addressed him. Instead, he adjourned the matter to 24/11/2015 for mention. On the adjourned date, none of the parties appeared hence the matter was dismissed for want of prosecution. 10

None of the respondents has exhibited the summons to show that the appellant was summoned to appear for hearing of the application before it was dismissed. The evidence before us shows that there was an order for appearance made by the court in the absence of the parties and the order was never complied as parties were never served. This is not a case where the appellant was notified of the date of hearing but chooses not to appear. This is a typical case where a party was denied her right of a fair hearing as she was not notified of the date of hearing by the court. The right of fair hearing entails the notification of all parties of the date of hearing and eventually giving every party an opportunity to be heard. To the contrary, in the present situation, parties were not informed of a hearing date either by summons or otherwise, thus, failure to appear on the date fixed for mention cannot be attributed to the appellant's negligence or lack of diligence. In any case, Order V Rule 4 of the CPC, states that, the judge or magistrate can only fix a date for parties to appear after the summons have been issued to the parties. Under this rule, a judge or magistrate is also required, before fixing the date for parties to appear for orders or mention, to take into account the time required for service of summons, filing of replies, etc. This rule provides: 11

"The presiding judge, m agistrate or the Registrar shall, after the issuance o f summons under rule 1, fix a date for both parties to appear fo r orders as prescribed under rule 17 o f Order VIII taking into account the tim e required fo r service o f summons, filin g o f the written statem ent o f defence and reply thereto." In the instant matter, when the counsel for the 1st respondent appeared before the presiding judge, he informed the judge that he was never served with the summons to appear, the judge did not make any other order or directives. The judge did not give an order to serve the appellant with the summons to appear, but also did not make an order requiring the counsel who appeared for the respondent to file any replies to the application. He simply fixed another date for mention. We have also noted that, despite the address given by the appellant's counsel in the chamber summons which is situated in Iringa, there is no record which shows that the appellant or his counsel was served at a given address. As such the dismissal of her application for reasons that she failed to prosecute it, amounted to a denial of her rights to be heard. Considering the above stated reasons, we find the appeal meritorious, hence, it is hereby allowed. The decision of the High Court in Misc. Land Application No. 54 of 2016 is quashed and set aside. The 12

applicant is granted thirty (30) days from the date of this judgement to file an application before the High Court for restoration of Misc. Land Application No. 30 of 2015 which was dismissed for want of prosecution. In the circumstances, we shall make no orders as to costs. DATED at IRINGA this 11th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 13rd day of October, 2025 in the presence of Mr. Rutebuka Samson Anthony, learned counsel for Appellant, Mr. Clever Kapinga Adrof, learned counsel for the Respondents and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 13