Ally Hersy ruling 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) Misc. CIVIL APPLICATION No. 26494 OF 2023 (Arising from the High Court (Musoma Sub Registry) in PC Civil Appeal No. 47 of2023; the District Court of Musoma at Musoma in Probate Appeal No. 2 of2023; originating from Musoma Urban Primary Court in Probate Cause No. 23 of2023) ALLY HERSY JAMA.................................................................... APPLICANT Versus MOHAMED SAID HERSY.......................................................RESPONDENT RULING 25.07.2024 & 05.08.2024 Mtulya, J.: On 25th July 2002, Mr. Said Hersy Jama (the deceased) had expired and a probate cause to appoint an administrator of the deceased's estate was lodged in Probate Cause No. 33 of 2002 (the cause) before Musoma Urban Primary Court (the primary court) by Mr. Ally Hersy Jama (the applicant). At the conclusion of the cause's hearing, on 21st March 2003, the applicant was appointed as administrator of the deceased's estates. On 24th February 2023, the applicant's letter of administration was revoked (kuvuiiwa usimamizi} and the cause was marked dismissed (kuondoiewa'} by the primary court by invoking Rule 9 (1) (d) of the Primary Courts (Administration of Estates) Rules, GN. No 49 of 1971 (the Rules). The Swahili language phrasing of the decision of the primary court in ending the cause shows that: shauri hi/i Hmeondo/ewa chini ya k. 9 (1) (d) [cha] The Primary Courts (Administration of i Estates) Rules, GN. No 49 of 1971. Ally Hersy amevuliwa kuwa msimamizi wa mirathi ya Marehemu Said Hersy. It is these Swahili terminologies which have brought the parties to this court contesting on certification on points of law to approach the Court of Appeal (the Court). The intended question to be resolve by the Court is whether the indicated words are bar to any fresh and proper subsequent probate cause intending to search and administer the deceased's properties. According to Mr. Mohamed Said Hersy (the respondent), the decision is not a bar to fresh and proper subsequent probate cause, and he moved further to file Probate Cause No. 23 of 2023 (the second probate) at the primary court praying to be appointed as administrator of the deceased's estates. The second cause was successfully protested by the applicant for reasons of res judicata and the District Court of Musoma at Musoma (the district court) in Probate Appeal No. 2 of 2023 (the appeal) was persuaded by the decision of the primary court. However, this court, in PC Civil Appeal No. 47 of 2023 (the civil appeal), thought, at page 12 of the judgment, that: there is no res judicata. Probate Cause No. 33 of 2002 was not dosed. The thinking of this court had aggrieved the applicant hence preferred the instant application complaining on two (2) issues, as reflected at the tenth paragraph in page 3 of his affidavit, viz. first, the second probate was time barred; and second, the second probate was res judicata. 2 The parties we summoned to appear in this court on 25th July 2024 in morning hours to register relevant materials to display whether there are points of law to be certified by this court for the parties to access the Court. Both parties appeared themselves without any legal representation, and being lay persons, they produced materials related to the historical background of the matter and their family relations with the deceased. Noting the parties are lay persons and were producing facts related to the case, this court had to properly move them to the appropriate subject which had brought them in the application. Finally, they came closer to their contest and upon reading the record, I noted that the parties are disputing on two issues. The issues are: first, whether after the dismissal order of the primary court in the cause, the respondent can file fresh suit to be appointed as administrator of the deceased's estates; and second, whether the second cause was time barred after the dismissal order of the primary court in the cause. It is unfortunate that in the present case the record is silent on the meaning of kuondolewa and kuvuliwa usimamizi. This is stressed from the record of the primary court in the cause, as reflected at page 9 of the decision of this court in the civil appeal: MSIMAMIZI [the applicant]: Tumekaa Kikao cha Ukoo na tumebaini kuwa hakuna ma/i yeyote ya marehemu a/iacha. Hivyo, naomba kufunga shauri hili ieo. 3 MOHAMED SAID HERSY [the respondent]: Sina pingamizi na hi/o. Afunge tu mirathi. The primary court in the course of proceedings had replied that: Ombi limekubaliwa. Hivyo, kwa kuwa hakuna mali yeyote, shauri hili iinaondoiewa. Reading the proceedings, order of the primary court in the cause and complaints in the instant application, it is vivid that there are issues to be resolved in our apex court for right record and precedent setting. The law regulating applications like the present one shows that reasons of certification on points of law to access the Court must display one of the listed issues in alternative, namely: raise novel point of law; or where proceedings as a whole reveal disturbing features as to require the guidance of the Court of Appeal (see: Shaban Said Mganda v. FINCA Tanzania Ltd, Misc. Civil Application No. 21 of 2022; Joseph Kasawa Benson v. Mary Charles Thomas, Misc. Civil Application No. 21 of 2022; and Adoyo Nandori Kakoyo v. Adriano Development Microfinance, Misc. Civil Application No. 46 of 2022). The indicated proceedings of the primary court in the cause and determination of this court in the civil appeal reveal disturbing features to require intervention and guidance of the Court of Appeal. It is plain that there is also novel point of law that need to be settled on the subject. I am conversant that certification on points of law to access the Court is not an automatic process. It is necessary materials that 4 persuade courts to see that there is a point of law to be forwarded to the Court (see: Shaban Said Mganda v. FINCA Tanzania Ltd (supra); Joseph Kasawa Benson v. Mary Charles Thomas (supra); Rutagatina C.L. v. The Advocates Committee & Another, Civil Application No. 98 of 2010; British Broadcasting Corporation v. Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004; and Buckle v. Holmes (1926) All E. R. 90). According to the precedent in Mariam Othman Matekele v. Nyacheri Joseph Mwangwa, Misc. Civil Application No. 139 of 2021, at page 6 of the decision, a point of law is a matter involving the application or interpretation of legal principles or statutes. It is the determination of what the law is and how it is applied to the facts in the cause. The question before this court, therefore is whether the applicant has produced relevant materials that reveal novel point of law or interpretation of enactment of the law. As I have indicated, it is obvious that in the present application the parties are at variance on the interpretation of Rule 9 (1) (d) of the Rules. It must be forwarded to the Court. The applicant has also introduced the issue of limitation of time with regard to the second probate. I am aware the issue is new in the record raised at this stage. However, practice in this court and Court of Appeal shows that a point of law challenging the jurisdiction of the court can be raised at any stage of proceedings, even in an appeal 5 (see: R.S.A Limited v. HansPaul Automechs Limited & Another, Civil Appeal No. 179 of 2016 Having said so and considering the need for proper record and right to be heard at the apex court as enacted in article 13 (6) (a) of the Constitution of the United Republic of Tanzania [Cap. 2 R.E. 2002], I grant the application and forward the two (2) indicated issues to the Court of Appeal so that they can be replied by the final court in decision making, namely: first, whether after the dismissal order of the primary court in the cause the respondent can file fresh suit to be appointed as administrator of the deceased's estates-, and second, whether the second cause was time barred after the dismissal order of the primary court in the cause. I award no costs in the present application. The reason is obvious that the parties are relatives and still in contest searching their rights at the final court of authority. This Ruling was delivered in Chambers under the Seal of this court in the presence of the applicant, Mr. Ally Hersy Jama and in the presence of the respondent, Mr. Mohamed Hersy Said. Judge 05.08.2024 6