20170928 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 503 OF 2016 (Arising from Probate and Administration Cause No. 4 of 2010 and Misc. Application No. 219/2016) BENEDICT M. KEZIRAHABI. .. ......................... ... APPELLANT Versus LOVENESS MARY D. KEZIRAHABI .............. ~ .. RESPONDENT RULING BEFORE: B. R. MUTUNGI - J:- Mr. Alex Balimi learned counsel representing the applicant has filed before this court an application for leave to appeal to the court of appeal of Tanzania against part of the Judgement and Decree in· Probate and Administration Cause No. 4 of 2010 by Honourable Arufani J. delivered on the 16/February, 2016. · He is also praying for costs to be provided for by the respondent and any other relief(s) this honourable court may deem fit to grant. The same is by a chamber summons supported by a corresponding Affidavit sworn by BENEDICT KEZIRAHABI (the applicant). 1 ,., In support thereof the applicant's counsel submitted that going through the entire Affidavit one will find that their intended appeal has overwhelming. chances of Appeal. This is from the very fact that there are legal issues to be looked into by the Court of Appeal. Further the learned counsel prayed to the court to find that a ri_ght of appeal is enshrined in the constitution of the United Republic of Tanzania, 1977, specifically Article 13 (b). To support his stance that this court had not addressed itself to the contentious issue, the counsel cited the case of NURBHAI LATANSI VS. MINISTRY OF WATER, CONSTRUCTION ENERGY LAND AND ENVIRONMENT AND HASSAN LAJABALI HIRJI (2005) TLR 220. Applying the findings of this case to the matter at hand, the learned counsel argued that the trial judge grossly erred in omitting in the list of the properties of the deceased, the property held under the certificate of title No. 3152 Jangwani Beach area, Dar es Salaam Kinondoni. In moving the court to find indeed the above is a contentious issue of law and a fit case for consideration of the Court of Appeal the counsel cited yet another case of SAIDI MAYANGA VS. ABDALLAH SALEHE (1996) TLR 74. In the 2 '--• event this issue which was raised during the trial and omitted is not considered and the application not granted, it was argued there will be occasioned grave injustice as far as the applicant's rights are concerned. In reply thereto by Mr. Yusuf learned counsel representing the respondent submitted that, the court should adopted their counter Affidavit as part of his submission. Further, that the trial judge contrary to what the applicant had deposed, had considered all the properties that were mentioned during the trial. The ones being mentioned at this stage were not in the deceased' s name hence would not be in issue. Unlike the cases that were cited by the applicant's counsel, what the applicant is raising in this application is a point of fact and not point of law. In conclusion the counsel prayed the court to find in line with the case of UMOJA GARAGE VS. N.B.C. [1997] TRL, that the applicant has no sufficient causes made up to move the court. On the same footing the application should be dismissed in its entirety with costs. 3 In re-joinder the applicant's counsel elaborated that what the applicant is doing is to invite the Court of Appeal to see whether this court did properly apply the principles of law in analyzing evidence in regards to the properties of the estate which in itself is a point of law. In view thereof the court should proceed to grant the leave prayed for. I have had to go through the disputed judgement and as properly submitted by the applicant's counsel and not disputed by the opposing side there was before the court an issue framed to the effect that; "Whether the property with certificate of title No. 3152 and forms part of the estate of the late DONALi MWASI KEZIRAHABI." The issue was arising from the probate and administration cause No. 4 of 201 O where the court was faced with a petition of letters of administration by BENEDICT MUSSA KEZIRAHABI (the son of the deceased). In the course the court had also to consider a caveat filed by LOVENESS MARY KEZIRAHABI (the deceased widow) against the petitioner. Having deliberated upon the evidence adduced before the court, among the orders granted was that; 4 . , "the property with certificate of title No. 3152 is not part of the deceased's estate hence it is . not required to be entered into the list of the properties of the deceased which is supposed to be distributed to the heirs of the deceased. 11 The above has also been reproduced in paragraph 5 of the corresponding Affidavit to the application. At this juncture the court is forced to visit as to what are the fit matters to be allowed to go to the Court of Appeal. On this the supreme court of this land has provided a chain of authorities. Among these is the case of British Broadcasting Co-operation V. Erick Sikuiua Ng'amavyo, Civil Application No. 138 of 2004) Court of Appeal - DSM, the court held; "As a matter of general principal, leave to appeal will be granted where the grounds of appeal raise issues of general importance, on a novel point of law or where the grounds 11 show a prima facie or arguable appeal. The court finds that the intention of the applicant as per paragraph 7 of his deponed Affidavit is that he believes the High Court erred in finding that the property with certificate 5 ... of title No. 3152 is not part of the estate of the deceased. It is thus a point of fact upon which the court had evaluated the facts and testimonies before it. The court finds no issues of general importance more so, the applicant's counsel has not specified any novel point of law. Be as it may the applicant's counsel has not shown or demonstrated to the court any disturbing feature to require the guidance of the Court of Appeal. As general as is the instant application, if let to land in the Court of Appeal will be opening a floodgate of unmeriting matters. In view of the above analysis, the court finds that leave to appeal to the court of Appeal should not be granted. The argument that the constitution of the United Republic 1977 as amended from time to time is enshrined with a right· of appeal; the court is alive that indeed this is one of the fundamental right. Be as it may this right should be exercised within the perimeters of the existing laws and procedures. In this regard leave to appeal to the Court of Appeal should be granted judiciously dispite the fact that, it is subject to the discretionary powers of the High Court. 6 Having analyzed as above, the court is of the settled opinion that the leave sought in this application has no legs to stand on. On the same footing the application is dismissed with costs. ~ J B.R. Mutungi Judge 28/9/2017 Read this day of 29 /9/2017 in presence of Mr. Balomi for Applicant and Miss Aisha Mtunguja for the Respondent. \---~· B.R. MUTUNt';I JUDGE 28/9/2017 Right of Appeal f Explained. 1 B.lf. MUTUNGI JUDGE 28/9/2017 7