FABIAN MUNRAHA v. RUKAYA MUNRAHA 1996 TLR 150 (HC)

 

FABIAN MUNRAHA v. RUKAYA MUNRAHA 1996 TLR 150 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mwaikasu J

B

CIVIL APPEAL NO 12 OF 1990

30 August, 1994

Flynote

Civl Practice and Procedure -- Proof of case ex-parte -- Whether competent in

proceedings for the dissolution of marriage. C

Principles of Natural Justice -- Right to be heard -- Whether proof ex-parte of

dissolution of marriage constitutes a violation of such right.

-Headnote

On 28 December 1989, the Respondent in this appeal was granted leave by the court

below to prove her petition for the dissolution of marriage ex-parte on 29 January

1990. D The Respondent duly appeared on the latter date, proved the dissolution of

the marriage and obtained an order from the court to that effect.

The Appellant appeals against that order on the basis that no notice had been sent to

him informing him of the proceedings to take place on 28 December 1989, and that E

accordingly he could not have known of the petition date of 29 Januuary 1990.

Held:

(i) As a result of the ex-parte proof adduced on 29 January 1990, the

Appellant was effectively and wrongfully denied the right to be heard and

accordingly clearly condemned unheard. F

(ii) Such violation of the Appellant's right to be heard constituted a

contravention of one of the basic principles of natural justice.

(iii) The appeal is allowed, the decision of the lower court is quashed, and

the case is ordered remitted to the lower court for retrial.

Case Information

Ordered accordingly. G

[zJDz]Judgment

Mwaikasu, J:

This is an appeal by one Fabian Munraha against the judgment of the lower court

which on 5 March 1990 dissolved the appellant's marriage to one Rukaya Munraha.

H

The judgment of the lower court has been impugned on the grounds, inter alia that

the appellant was condemned unheard for no fault of his. In that, as shall presently

hereinafter be demonstrated, I think he is quite right. I

The saga appears to have started on 30 October 1989. As the typed record of the lower

court shows, on that day only the appel-

1996 TLR p151

MWAIKASU J

lant, then respondent, appeared. The case was then adjourned for mention on 9 A

November 1989 when a hearing date was to be fixed. When the case was called for

mention on 9 November 1989, the appellant did not appear but counsel for the

petitioner appeared. On that day a hearing date was fixed and that came to be 28

December 1989. When the case came up for hearing on 28 December 1989 in absence

of the appellant B then respondent, it was submitted by Mr Kashumbugu, learned

counsel for the petitioner that since the appellant was present on 30 October 1989

and was aware of the hearing date, then the respondent should be allowed to proceed

to prove her petition C ex-parte. That was then accordingly granted by the lower

court. The ex-parte proof was then fixed for 29 January 1990.

At this point it is to be pointed out that the lower court erred in granting such leave

for such ex-parte proof. For it is evident that though the appellant was present on 30

D October 1989 the day when the respondent did not appear and the case had to be

adjourned to 9 November 1989 for mention for the purposes of fixing a hearing date,

in such mention date when the hearing was fixed for 28 December 1989 the appellant

did not appear. Yet no notice was ever sent to him to notify him of such hearing date

as E fixed on 9 November 1989 when he was absent. There is no evidence to show

that the appellant was ever made aware in any way of the hearing date on 28

December 1989. And when he was present on 30 October 1989 such hearing date was

not at all suggested, that is why the case had to be adjourned to 9 November 1989 to

consider a F suitable hearing date.

Thus the respondent was, on 28 December 1989 granted leave to prove the case exparte

and did proceed to prove the same on 29 January 1990 without the knowledge

of the appellant, and on the basis of such ex-parte proof the marriage was dissolved,

the G appellant was clearly thereby condemned unheard. The appellant was

therefore effectively and wrongfully denied the right to be heard, thus contravening

one of the basic principles of natural justice.

Consequently, on that ground alone, and without going further to consider other

grounds H raised, I allow this appeal, quash the decision of the lower court with an

order that the case be remitted back to the lower court for retrial, hoping that this

time the lower court will ensure that both parties are afforded equal opportunity to be

heard before final determination of the case. Order accordingly. I

1996 TLR p152

A