Seth Japhet vs Nicholas Mero (Civil Appeal No. 262 of 2022) [2024] TZCA 1261 (10 December 2024)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: SEHEL. J.A.. KIHWELO, 3.A. And MLACHA. 3.A.^ CIVIL APPEAL NO. 262 OF 2022 SETH JAPHET ..... . ...... .............. ..... ............ ...... APPELLANT VERSUS NICHOLAS MERO ............... ...... ................ ......... ...... ..RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mzuna. J J dated the 24th day of February 2012 in Land Case Appeal No. 12 of 2009 JUDGMENT OF THE COURT 6th & 10 * December, 2024 KIHWELO, 3.A.: The genesis of the instant appeal is a dispute over ownership of a piece of farmland measuring about 5 and 1/2 acres situated at Samanga Village in T.P.C. Ward in Moshi Rural District (the suit premise). It all started at the District Land and Housing Tribunal for Kilimanjaro at Moshi (the Tribunal) in Land Application No. 124 of 2006 in which the respondent lodged an application seeking the Tribunal to declare among other things that; the respondent is the lawful owner of the suit premise, order the appellant to vacate the suit premise; pay costs of the application as well i
as compensation to the respondent. The appellant stoutly resisted that application. Upon hearing the application on merit, the Tribunal dismissed it with costs. Unhappy with that decision, the respondent lodged an appeal before the High Court of Tanzania in Land Case Appeal No. 12 of 2009, seeking to reverse the decision of the Tribunal. Upon the agreement of the parties, the appeal was disposed through written submissions which were duly filed as scheduled. After thorough scrutiny of the parties' submissions, the High Court (Mzuna, J), found in the balance of probability that the evidence of the respondent was more credible than that of the appellant and therefore, allowed the appeal and set aside the judgment of the Tribunal on the basis that it was founded on a wrong premise and instead entered judgment for the respondent with costs. Undaunted, the appellant herein lodged this appeal seeking to challenge the decision of the High Court. This is what precipitated the instant appeal before us which is grounded upon four (4) points of grievance, which can be crystalized as follows:
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That, the first appellate court erred in considering exhibit R1 in the original application as a will and not a gift document
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That-r the first appellate court erred to determine the issue o f exhibit R1 as a will without affording parties an opportunity to be heard on that point
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That, the first appellate court erred to entertain the appeal which was filed out o f the time prescribed by law.
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That, the first appellate court erred and misdirected itself in not properly analyzing and re-evaluating the evidence on record and by shifting the burden o f proof. Before this Court the appellant was represented by Mr. Charles Mwanganyi, learned counsel while the respondent appeared in person unrepresented. They both, prayed to adopt the written submissions which were lodged earlier on in terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009. Mr. Mwanganyi prayed to make some elaborations while the respondent prayed to adopt the written submissions without more. We propose to begin with the third ground of appeal whose complaint is premised on the error by the first appellate Judge who entertained the appeal which was lodged out of the time prescribed by law and without leave of the court. Arguing this ground Mr. Mwanganyi was brief and to the point, he contended that, the judgment of the Tribunal was pronounced on 22n d January, 2009 following which on 23r d January, 2009 just a day after delivery of that judgment, the appellant
through Alphonce Urio, learned counsel applied for certified copies of the judgment, proceedings and decree. Later, on 18th March, 2009 the appellant lodged the appeal before the High Court. In his view, the appellant lodged the appeal after 55 days beyond the 45 days stipulated under item 2 of Part II of the Schedule to the Law of Limitation Act, Cap. 89 (LLA) which by then was the applicable provision as the Land Disputes Courts Act, Cap, 216 (the Land Disputes Act) did not specify time. Unfortunately, the respondent lodged that appeal without leave of the court. He therefore, emphatically submitted that, the instant appeal before the Court is incompetent as it emanates from an incompetent appeal. In the adversary side, the respondent was very brief. He gallantly refuted the allegations that the appeal was lodged out of time. He had an opposing view that, the appeal before the High Court was lodged well within the time prescribed by law. Recounting, he contended that, the judgment of the Tribunal was delivered on 22n dJanuary, 2009 and on 23r d January, 2009 the appellant applied for copies of certified proceedings, judgment and decree which were supplied to him on 13th February, 2009 and the appeal was lodged on 18th March, 2009 well within the time prescribed by law. 4
We have considered the contending rival submissions by the parties and the vexing issue for our consideration is whether the appeal before the High Court was time barred and therefore incompetent. Upon a thorough and careful scrutiny of the record of appeal, we are of the considered opinion that this issue should not detain us and the reason is not far-fetched. Clearly, the judgment of the Tribunal was delivered on 22n d January, 2009, the appellant applied for certified copies of proceedings, judgment and decree oh 23r d January, 2009 and the appeal was lodged on 18th March, 2009. It is instructive to interject a remark, by way of a postscript that, in terms of section 19 (2) of the LLA which according to subsection (2) of section 52 of the Land Disputes Act, is applicable to the Tribunal and the High Court, in computing the period of limitation prescribed for an appeal, the day on which the judgment: complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from, shall be excluded. There is, in this regard, a considerable body of case law. See, for instance, Mohamed Salimini v. Jumanne Omary Mapesa (Civil Appeal No. 345 of 2019) [2020] TZCA 1825 and Alex Senkoro & Others v. Eliambuya Lyimo (Civil Appeal No. 16 of 2017) [2021] TZCA 104 for the proposition that, courts are obliged to 5
exclude the period of time requisite for obtaining a copy of the decree appealed from. Reverting back to the appeal before us, and considering that the appellant applied in writing for certified copies of proceedings, judgment and decree just one day after the judgement was pronounced and lodged the instant appeal on 18th March, 2009, only five days after receiving certified copies of proceedings, judgment and decree, that is on 13th February, 2009, we hold and find that the appeal was lodged within the time. With respect, we do not agree with the appellant that the appeal before the High Court was time barred. Thus, we find this ground not meritorious. Next, we will deliberate on ground two whose main complaint is on the failure by the first appellate Judge to afford an opportunity to the parties to be heard before deciding that exhibit R1 in the original application was a will and void in terms of paragraph 6 of the Third Schedule to the Local Customary Law (Declaration) (No.4) Order, 1963 GN. No. 436 of 1963 (the customary law declaration order). In support of this appeal, the appellant submitted that, the first appellate Judge did not afford an opportunity to the parties to address him on this point before 6
arriving to the conclusion. He took the view that, denying parties the fundamental right to be heard constituted an illegality leading to miscarriage of justice contrary to the dictates of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977 and the principles of natural justice. He therefore, implored on us that the appeal be allowed and the judgment of the first appellate court be declared nullity. In response, the respondent was fairly brief and argued that, it is not true that parties were denied an opportunity to be heard as contended by the appellant. In his view, since the appeal was disposed through written submissions, the appellant was not restricted in any way to submit whatever he considered relevant and necessary in the circumstances of the appeal before the High Court. In essence, he entreated on us to dismiss this ground. From the foregoing, the sticking question is whether parties were denied the right to be heard on the crucial point that the first appellate Judge raised and decided. It is not in dispute that the first appellate Judge did not afford an opportunity to the parties to be heard before deciding that exhibit R1 in the original application was a will and void in terms of the customary law declaration order. In the contrary, and as rightly argued by the appellant, the first appellate Judge raised and decided that 7
issue in the course of composing judgment. He unilaterally elected to raise that the basis upon which the respondent's claim was based is a will which was reduced into writing referring to exhibit Rl. He also went ahead to discuss at considerable degree the issue of will exhibit R l and declared it to be void in terms of the customary law declaration order. It bears reaffirming that, the right to be heard before adverse action or decision is taken against a party has been stated and emphasized by the courts in numerous decisions, That right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of the principles of natural justice. For example, in the case of General Medical Council v. Spackman [1943] A.C. 627, Lord Wright said: "If principles o f natural justice are violated in respect o f any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence o f the departure from the essential principles o f justice. The decision must be declared to be no decision." The position in this case was followed with approval by the Court of Appeal of Eastern Africa in the case of Hypolito Cassiano De Souza v,
Chairman and Members of the Tanga Town Council [1961] EA 377 and by this Court in D.P.P v. S. I. Tesha and Another [1993] T.L.R, 237, Transport Equipment v. Devram Valambhia [1998] TLR 89 and Mbeya-Rukwa Autoparts and Transport Limited v. Jestina George Mwakyoma [2003] TLR 251 just to mention a few. In emphasizing that courts should not decide matters affecting rights of the parties without according them an opportunity to be heard because it is a cardinal principle of natural justice that a person should not be condemned unheard, we stressed in the case of Mbeya-Rukwa Autoparts and Transport Limited (supra) that: "In this country, natural justice is not merely a principle o f the common law, it has become a fundamental constitutional right Article 13(6)(a) includes the right to be heard among the attributes o f equality before the law and declares in part: (a) Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi na Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamiiifu . " 9
In the case above, we stressed that a party does not only have the right to be heard but to be fully heard. As hinted earlier on, the first appellate Judge raised and decided that exhibit R1 was a will and void in terms of the customary law declaration order in the course of composing judgment. Quite unfortunate, and for an obscure cause, he did not afford an opportunity to the parties to address him on that point before reaching a decision on it. This was an illegality which renders the appeal nullity. Thus, in view of what we have deliberated above, we are satisfied that parties were denied the right to be heard on the crucial point that the first appellate Judge raised and decided. We ate further satisfied that the denial was in violation of the fundamental constitutional right to be heard and the parties were prejudiced. This renders the entire proceedings and judgment of the High Court nullity, and we hereby declare so. Consequently, we direct that this matter be remitted back to the High Court for Land Case Appeal No. 12 of 2009 to be heard afresh before another Judge of the High Court. In the end result, this appeal is allowed on the basis of ground two which is sufficient to dispose of this appeal, as such, we shall not make a 10
painstaking inquiry into the other grounds of appeal raised by the appellant. In the circumstances, each side shall bear its own costs. DATED at MOSHI this 9th day of December, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of Mr. Charles Mwanganyi, learned counsel for the appellant and Respondent in person, is hereby certified as a true copy of the original. , COURT OF APPEAL V- 1 \ A. S. C H ipjLU i - . * __ _______ ________