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    Mmilla, J. A.:: 18 & 23 March 2015

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    DATIUS DIDACE(Amicus Curiae)⚖️
    The Court of Appeal quashed the High Court's judgment in favor of the respondents due to a procedural error. Specifically, the High Court judge expunged the appellant's counter affidavit from the record without allowing the parties to address this point, violating the principle of natural justice that parties must have the right to be heard. Both parties conceded this was incorrect. As such, the Court of Appeal nullified the High Court's judgment and remanded the case back to the High Court to be heard by a different judge from where it previously ended.

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    Mmilla, J. A.:: 18 & 23 March 2015

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    DATIUS DIDACE(Amicus Curiae)⚖️
    142 views7 pages
    The Court of Appeal quashed the High Court's judgment in favor of the respondents due to a procedural error. Specifically, the High Court judge expunged the appellant's counter affidavit from the record without allowing the parties to address this point, violating the principle of natural justice that parties must have the right to be heard. Both parties conceded this was incorrect. As such, the Court of Appeal nullified the High Court's judgment and remanded the case back to the High Court to be heard by a different judge from where it previously ended.

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    The Court of Appeal quashed the High Court's judgment in favor of the respondents due to a procedural error. Specifically, the High Court judge expunged the appellant's counter affidavit from the record without allowing the parties to address this point, violating the principle of natural justice that parties must have the right to be heard. Both parties conceded this was incorrect. As such, the Court of Appeal nullified the High Court's judgment and remanded the case back to the High Court to be heard by a different judge from where it previously ended.

    Copyright:

    © All Rights Reserved
    142 views7 pages

    Mmilla, J. A.:: 18 & 23 March 2015

    Uploaded by

    DATIUS DIDACE(Amicus Curiae)⚖️
    The Court of Appeal quashed the High Court's judgment in favor of the respondents due to a procedural error. Specifically, the High Court judge expunged the appellant's counter affidavit from the record without allowing the parties to address this point, violating the principle of natural justice that parties must have the right to be heard. Both parties conceded this was incorrect. As such, the Court of Appeal nullified the High Court's judgment and remanded the case back to the High Court to be heard by a different judge from where it previously ended.

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    © All Rights Reserved
    of 7

    IN THE COURT OF APPEAL OF TANZANIA

    AT MWANZA

    (CORAM: MASSATI, l.A., ORIYO, l.A., And MMILLA, l.A.)

    CIVIL APPEAL NO. 78 OF 2014

    AUSDRILL TANZANIA LIMITED ••••••••.•••••••••.••••••••••••••••••••••••••.••••••••


    APPEl.LANT

    VERSUS

    MUSSA lOSEPH KUMILI } "


    EDWIN FAUSTINE SAMIKE ••••••••••••••••••••••••••••••••••••••••••••••••••.•••
    RESPONDENTS
    \
    .~

    (Appeal from the judgment of the High Court of Tanzania (Labour Division) "'\;
    at Mwanza)

    (Wambura, l.l

    dated 27th day of September, 2013


    in
    HC. Civil Revision No. 50 of 2003

    JUDGMENT OF THE COURT

    18th & 23rd March , 2015

    MMILLA, J. A.:

    Ausdrill Tanzania Ltd (the appellant), is appealing against the decision

    of the High Court of Tanzania (Labour Division) in Civil Revision No. 50 of

    2013 which was in favour of the respondents, Mussa Joseph Kumili and

    Edwin Faustine Samike.

    The background facts leading to the present matter were briefly that

    the respondents were employees of the appellant. On 6.10.2010, the latter

    1
    terminated the respondents from employment. Unhappy with the

    termination, the respondents reported the matter to the Commission for

    Mediation and Arbitration (the CMA). After hearing the parties on 13.12.2010,

    the CMA granted an award in favour of the appellant, confirming the said

    termination. Dissastified, the respondents filed Civil Revision No 50 of 2013

    before the High Court (Labour Division) asking the court to revise the
    \1
    decision of the MCA.On 27.9.2013, the High Court handed down a judgment

    which was in favour of the respondents. It declared the respondents'

    termination unfair and orderded the appellant to pay them a compensation of

    twelve (12) months' salaries as well as their salaries from the date of unfair

    termination to the date of full payment as per section 40 (3) of the


    ...•
    Employment and Labour Relations Act NO.6 of 2004 (the Act).

    The appellant's memorandum of appeal has raised two grounds as

    follows:-

    1. That after holding that the respondents herein could not be

    reinstated, the learned High Court judge erred in law to

    order that the respondents be paid salaries from the date of

    termination of their employment to the date of full

    payment.
    2
    2. That after holding that the respondents herein could not be

    reinstated, the learned High Court judge erred in law in

    invoking section 40(3) of the Employment and Labour

    Relations Act, 2004 to order payment of salaries from the

    date the respondents herein were terminated to the date of

    full payment.
    ,
    \

    Before us, the appellant was represented by Mr. Faustine Malongo, \

    learned advocate and Mr. Mathew G. Nkanda, learned advocate appeared for

    the respondents.

    In the middle of Mr. Malongo's submission, the Court, suo motu,

    asked him whether the learned High Court judge was correct to expunge the

    appellant's (respondent in the High Court) counter affidavit from the record

    after she held that it was fatally defective as reflected on page 324 of the

    court record without affording counsel for parties a chance to be heard on

    the point.

    Mr. Malongo told the Court that the High Court judge was wrong

    to decide on that point without affording the parties an opportunity to be

    heard on that point. He submitted that, that was contrary to the fundamental

    3
    principle of natural justice of the right to be heard. He therefore urged the

    Court to nullify the High Court's judgment.

    On the other hand, Mr. Nkanda conceded. Like his learned friend, he

    invited the Court to nullify that judgment.

    Admittedly, the record speaks it all that the learned High Court judge

    dealt with a point raised by her in the course of composing the judgment \1
    without giving the parties chance to submit on it, and subsequently expunged

    the said counter affidavit from the record after she was satisfied that it was

    defective. We make a serious note however, that on page 2, third paragraph

    of her typed judgment, the learned judge underscored that both parties

    wished to adopt the contents of their respective affidavits filed in support and ".

    in opposing the application. In our view, that s1gnified that the affidavits

    counted a lot to the decision that was to result. That being the case, we

    hasten to say that the learned judge did not apply the correct procedure. We r
    are of the settled view that after she had observed the said defect, she ought

    to have stopped composing the judgment and re-summon the parties with a

    view of requiring them to address her on the point. Only then that she could

    have properly continued writing the judgment.

    4
    It must be emphasized at this point in time that the right to be heard

    (audi alteram partem) is a fundamental principle which the courts of law

    jealously guard against. This has been stressed in a range of cases, including

    Mbeya - Rukwa Autoparts and Transport Ltd v. Jestina 'George

    Mwakyoma [2003] T.L.R.251, Selcom Gaming Limited v. Gaming

    Management (T) Ltd and Gaming Board of Tanzania [2006] T.L.R.

    2000 and Mire Artan Ismail & Another v. Sofia Njati, Civil Appeal No. 75
    ,
    \

    of 2008, CAT (unreported). In the case of Mbeya - Rukwa Autoparts and

    Transport Ltd v. Jestina George Mwakyoma (supra) in which the

    English case of Ridge v. Baldwin [1964] AC 40 was considered, the Court

    highlighted that:-

    "In this country, natural justice is not merely a principle of common

    law; it has become a fundamental constitutional right. Article 13 (6) (a)

    includes the right to be heard among the attributes of equality before

    the law, and declares in part:

    Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi

    wa Mahakama au chombo kinginecho kinachohusika, basi mtu

    huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa

    ukamilifu ... "


    5·
    As we have pointed out earlier on, that was unfortunately not observed

    in the circumstances of the present case. In the premise, we are constrained

    to find and hold that the omission to afford the counsel for the parties the

    right to be heard on the point it raised amounted to a fundamental

    procedural error and occasioned a miscarriage of justice. The issue becomes;

    what is the attending consequence?


    \
    Analogous to the situation facing the Court in the present case, are

    those cases where the Court may have raised an issue and decided it without

    giving the parties the right to address it as was the case in Mire Artan

    Ismail It Another v. Sofia Njati (supra) and EX- ~.8356 S/SGT

    Sylvester S. Nyanda v. The inspector General of Police It Another, ..;

    Civil Appeal No. 64 of 2014 CAT (unreported), to mention but some. In such

    cases, the Court quashed the decisions of the trial High Court upon being

    satisfied that the learned trial judge determined the suit in disregard of the

    principle of the right to be heard. We are of the considered opinion that the

    circumstances of this case give us no option but to follow suit. In the

    premise, we resort to the provisions of section 4 (2) of the Appellate

    Jurisdiction Act Cap 141 of the Revised Edition, 2002 on the basis of which

    we quash the judgment of the High Court and the resultant orders. We remit

    6
    the record to the High Court with a direction to continue with the conduct of

    the case/proceedings as from where it ended on 27.9.2013 before a different

    judge.

    DATED at MWANZA this zo" day of March, 2015.


    S. A. MASSATI
    JUSTICE OF APPEAL \,
    ,
    ,

    K. K. ORIYO
    JUSTICE OF APPEAL

    B. M. MMILLA
    JUSTICE OF APPEAL

    ".
    I certify that this is a true copy of the original.

    P.~KYA
    SENIOR DEPUTY REGISTRAR
    COURT OF APPEAL

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