Automated Summary
Key Facts
The appellant, James G. Kusaga, was admitted to Sebastian Kolowa Memorial University (SEKOMU) in 2014 to study a Bachelor of Education Special Needs degree. He was initially discontinued in 2016 for failing to meet academic standards (GPA 0.6 instead of the required 2.0) but was later reinstated by the Tanzania Commission for Universities (TCU) after errors in marking were identified. In 2017, he was again discontinued for failing repeated courses. The university's communication regarding his appeals and hearings was contradictory, with no evidence that he was properly summoned to attend the hearing. The Court of Appeal found that the university failed to afford the appellant his right to be heard, leading to the quashing of the discontinuation order and the High Court's decision.
Issues
- Rights to be heard: Whether the TCU cancellation was written to vary the respondent's decision due to failure to give the applicant an opportunity to be heard.
- Whether the applicant had exhausted all remedies.
- Right of Appeal: Whether the applicant had a right of appeal which he did not exercise after TCU canceled the respondent University's decision to discontinue the applicant.
Holdings
- The Court found that the respondent failed to establish, on the balance of probabilities, that the appellant was summoned to appear for the hearing of his appeal. The evidence showed contradictions in the dates of the hearing and no cogent proof of service, leading to the conclusion that the appellant was never summoned nor heard.
- The Court of Appeal allowed the appeal and quashed the respondent's order discontinuing the appellant's studies, as well as all proceedings and rulings in the High Court (Miscellaneous Civil Application No. 41 of 2020 and Civil Application No. 56 of 2020). The respondent was ordered to afford the appellant a right to be heard before any decision is reached.
Remedies
- The court quashed and set aside the respondent's order discontinuing the appellant's studies.
- All proceedings and rulings of the High Court in Miscellaneous Civil Application No. 41 of 2020 and Civil Application No. 56 of 2020 were quashed.
- The respondent was ordered to afford the appellant a right to be heard before any decision is reached.
- The appeal was allowed, and the respondent is ordered to cover the costs.
Legal Principles
- The standard of proof in civil matters is determined by the balance of probabilities, as established in prior decisions such as Mary Agnes Mpelumbe v. Shekha Nasser Hamud (Civil Appeal No. 136 of 2021). The court reiterated that the party alleging a fact must satisfy this standard to succeed.
- The burden of proof in civil cases lies with the party making the allegation, as per section 110 of the Evidence Act, Cap. 6 R.E. 2019. The court clarified that the burden does not shift to the opposing party unless the initial party discharges their onus, and the standard of proof is on a preponderance of probabilities.
- The right to be heard (audi alteram partem) is a fundamental principle of natural justice, constitutionally protected under Article 13 (6)(a) of the Constitution of the United Republic of Tanzania. The court emphasized that this principle must be strictly adhered to, and any violation would justify invoking revisionary powers to nullify proceedings.
Precedent Name
- Hemed Said v. Mohamed Mbilu
- Yazidi Khassim Mbakileki v. CRDB 1996 Ltd & Another
- Anthony M. Masanga v. Penina (Mama Mgesi) and Another
- D.P.P. v. S. I. Tesha
- Aasdriil Tanzania Limited v. Mussa Joseph Kumili & Another
- Paulina Samson Ndawavya v. Theresia Madaha
- Mbeya-Rukwa Auto Parts & Transport Limited v. Jestina George Mwakyoma
- Abbas Sherally & Another v. Abdul S.H.M. Fazalboy
- Mary Agnes Mpelumbe v. Shekha Nasser Hamud
- Attorney General & Others v. Eligi Edward Massawe & Others
Cited Statute
- Tanzania Education Act (TEA)
- Constitution of the United Republic, 1977
- Evidence Act, Cap. 6 R.E. 2019
Judge Name
- I. P. Kitusi
- P. S. Fikirini
- S. A. Lila
Passage Text
- In the upshot, we find this ground of appeal sufficiently disposes of the appeal, hence no need to embark on an academic exercise of determining the remaining grounds of appeal. Accordingly, we allow the appeal and hereby quash and set aside the respondent's order discontinuing the appellant's studies.
- We are also guided by the basic rule that he who alleges has the burden of proof as per section 110 of the Evidence Act, Cap. 6 R. E. 2019 as well as the position that the standard of proof in a civil case is on a preponderance of probabilities, meaning that the Court will sustain such evidence that is more credible than the other on a particular fact to be proved.
- Comparing the appellant's version that he was not summoned to appear before the UAIC for the hearing of his appeal outweighs the respondent's account that the appellant was summoned vide letters as shown in the record of appeal...we find the appellant's story...more credible than that of the respondent...