| dc.description | GURMIT SINGH VERSUS MEET SINGH AND ANOTHER COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPEAL NO. 256 OF 2018 (Appeal from the Order of the High Court of Tanzania, at Arusha) (Moshi. J,A dated the 17th day of September, 2014 in Civil Case No. 17 of 1998y6 CORAM: LILA, J.A., MWANDAMBO, J. A and FIKIRINI. J.A
FLY NOTES;
Probate and administration of justice law- Appeal- whether the dismissal of the suit deprived the appellant's right to be heard guaranteed under Article 13 (6) of the Constitution of the United Republic of Tanzania 1977
BRIEF FACTS
This appeal had protracted litigation which has been pending in the courts for no less than 24 years from the date of institution of the suit before the High Court to the time of determination of this appeal. Both old maxims; justitia dilata justitia negavit for justice delayed is justice denied and; justice hurried means justice buried complement each other in this appeal as shall become apparent later. Suffice to say for now that, this appeal does not arise from a final determination of the dispute between the parties rather, against an order of the High Court at Arusha made on 17/09/2014 dismissing the appellant's suit suo motu for being prematurely instituted. The facts from which this appeal has arisen present an unfortunate and pathetic tale involving a dispute between two blood brothers to a large extent over the management of the second respondent; a company in which both of them are shareholders.
The dispute emerged after the demise of the Chairman and Managing Director of the second respondent; one Gurbux Singh Arjanram the father of both, the appellant and the first respondent. The appellant claimed in the suit that the first respondent had hijacked the management and running of the Company to the exclusion of the appellant as a shareholder and director. The appellant had equally claimed that the first respondent misappropriated funds of the second respondent and dissipated her assets for which he sought several reliefs ranging from monetary award to restoration of some of the properties to him and declaration of specified landed properties in Arusha as assets of the second respondent. Up until the date of the impugned order, the suit before the High Court had reached the stage of final pre-trial conference (the FPTC). The record shows that, on 04/09/2014, mediation was marked to have failed paving a way for a FPTC before a trial Judge who, on the same date scheduled the FPTC on 17/09/2014. In terms of Order VII rule 3 (1) of the Civil Procedure Code (the CPC) before its amendment vide GN. No. 381 of 2019, the FPTC was meant to ascertain any pending matters in the suit, scheduling future events and framing issues for determination of the suit in accordance with its allocated speed track. For reasons which are not apparent on the record, Mrs. Aziza Shakale, learned advocate representing the appellant did not enter appearance on 17/09/2014. Nevertheless Mr. Ngeseyan, learned advocate, held her brief. The first respondent had Ms. Mariam Mrutu, learned advocate 'for' and holding brief for Mr. John Lundu, also learned advocate.
When the the suit came for hearing the learned Judge drew the attention of the learned advocates present of the pending probate proceedings in Civil Case No.9 of 2013 involving some of the properties in the suit for which no administrator had not yet been appointed in the deceased's estate which included properties and shares of the second respondent. Mr. Ngeseyan prayed for a short adjournment to allow Mrs. Shakale appear personally and address the court on that aspect a prayer which was supported by Ms. Mrutu. However, the learned Judge found it unnecessary to adjourn the matter any further noting that it was an old case. Instead he found the suit prematurely instituted and dismissed it suo motu with costs, hence this appeal.
The appellant was represented by Mrs. Shakale and Mr. Emmanuel Sood learned advocate who filed 6 grounds of appeal in support of the appeal while the respondent was represented by amR. Mughwai learned advocate. But the court deposed the appeal on the basis of ground 3 and 4 on the issue whether the dismissal of the suit deprived the appellant's right to be heard guaranteed under Article 13 (6) of the Constitution of the United Republic of Tanzania 1977. Mr. Sood who made oral submissions at the hearing of the appeal referred the court to several decisions of the Court on the effect of violation of the right to be heard while Mr. Mughwai argued, the appellant cannot be heard complaining of being unheard because he squandered the right to do so.
Appeal granted without costs
ISSUES
Whether the dismissal of the suit deprived the appellant's right to be heard guaranteed under Article 13 (6) of the Constitution of the United Republic of Tanzania 1977
HELD;
In the light of the foregoing, we are constrained to answer the sole issue discussed in this judgment in the affirmative. We have come to such conclusion upon being satisfied that the appellant was wrongly denied his opportunity to be heard on an issue which resulted into the order dismissing the suit suo motu.
STATUTORY PROVISION REFEERED TO;
1. Order VII rule 3 (1) of the Civil Procedure Code Cap 33 R:E 2002
2. Article 13 (6) of the Constitution of the United Republic of Tanzania 1977
CASE LAWS REFEED TO;
1. Charles Christopher Humphrey Kombe v. Kinondoni Municipal Council, Civil
Appeal No. 81 of 2017
2. Director of Public Prosecutions v. Yassin Hassan @ Mrope, Criminal Appeal No. 202 of 2019
3. DPP v. Shabani Donansian & 10 Others, Criminal Appeal No. 196 of 2017
4. Abdallah Makongoro & 4 Others v. Hon. Attorney General, Civil Appeal No. 8 of 1961 (unreported)
5. Lim Han Yung & Another v. Lucy Yreseas Kristensen, Civil Appeal No.219 of 2019 (unreported)
6. Nyanza Road Works Ltd v. Giovanni Guidon, Civil Appeal No. 75 of 2020
7. Independent Power Tanzania Limited & Another v. Standard Chartered Bank (Hong Kong) Limited, Civil Revision No.10 of 2009 (unreported) f
8. Mr. Anjumvicar Saieem Abd vs. Mrs. Naseem Akhtar Saieem Zangie, Civil Appeal no. 73 of 2003
9. Anjumicar Saleem Abd v Mrs. Naseem Akhtar Saleem Zangie, Civil Appeal No. 73 of 2003 (unreported).
LEGAL MAXIM REFERED TO;
1. justitia dilata justitia negavit
2. suo motu
Mrs. Shakale and Mr. Emmanuel Sood for the Appelant
Mr. Alute Mugwai for the respondent | en_US |
