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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA Misc. Civil Application No. 26592 OF 2024 (Arising from the decision of the High Court of Tanzania, Tabora sub-registry in PC Civil Appeal No. 6 of2023, from Civil Appeal No. 16 of2022 of the District Court of Tabora, original, Civil Case No. 64 of2022 Urban Primary Court, Tabora) BIZMANA JACKSON @BUKULULU....................... .....APPLICANT VERSUS MASOUD MUSTAPHA KATIMILE.......................... RESPONDENT Last order: 24/07/2024 Ruling date: 3/10/2024 RULING MANGO, J The Respondent, Masoud Mostapha Katimile instituted Civil Case No. 64 of 2022 before Tabora Urban Primary Court claiming TZS 5,090,000/- as unpaid amount arising from the contract executed between him and the Applicant Bizmana Jackson Bukululu on 30th March 2021. He alleged that, the Applicant purchased on credit basis 18,748 kilograms of maize valued TZS 8,090,260/- with a promise to pay the same within one month from 30th March 2O21.The Applicant disputed to have entered into the said agreement, he even disputed to have instructed his wife to sign the agreement on his behalf. The trial Court dismissed the suit on the reason that the agreement was not signed by the Applicant. 1 Aggrieved by the decision of the trial Court, the Applicant, unsuccessfully appeal to the District Court of Tabora via Civil Appeal No. 16 of 2022. He then appealed to this Court via PC Civil Appeal No. 06 of 2023. In this second appeal, Hon. Judge found it important to have additional evidence of the advocate namely Pharles Focus Malengo who witnessed the agreement between the Applicant and the Respondent. In his testimony, Pharles Focas Malengo testified to effect that he witnessed the agreement between the Applicant and the Respondent and it was signed by the Applicant's wife namely Mariam Liphoba Lukoba as per instructions given by Bizmana Jackson Bukululu. The witness identified the agreement which was tendered during trial as Exhibit Pl to be the agreement he witnessed. He also stated that, the Applicant wife consented to the agreement in writing. With such evidence, the Court quashed the decision of the District Court and ordered the Applicant to pay the Respondent TZS 5,090,260/- the remainder balance of the purchase price as per the agreement. The Applicant was dissatisfied with the decision of this Court and wishes to appeal to the Court of Appeal of Tanzania. He has now filed the application at hand seeking for a certificate on point of law to appeal to the Court of Appeal of Tanzania. He raised two issues that need to be certified by this Court as points of law worth to be determined by the Court of Appeal of Tanzania. The issues reads as follows: 1. That the second Appellate Court erred in law to admit Exhibit Pl and calling on the witness for that purposes while such powers are vested in the trial Court and first Appellate Court only. 2 2. That the second appellate Court erred in law for its failure to pay attention as to the nature of contract admitted that it was wrongly procured and proceeded to bless its invalidity and relied on the same to determine the matter thus, reached to a wrong decision. The application was argued by way of written submission. The Applicant was represented by Mr. Godfrey Tuli learned advocate while the Respondent's had no legal representation. He engaged Mr. Kashindye Lucas learned advocate for drawing the submission he filed before the Court. In his submission in support of the application, advocate Tuli submitted that jurisdiction is a creature of statute and can only be exercised by the Court which is vested with such jurisdiction. He argued that, jurisdiction of the second appellate Court is limited to issues of law and not factual issues. To cement his argument, he cited the case of Frank Michael Nyoni vs Republic Criminal Appeal No. 505 of 2020 Court of Appeal of Tanzania at Iringa. On the second issue, he submitted that the Applicant was not a party to a contract in dispute. It was his association which had executed the contract. He is of the view that since the Applicant was not party to the agreement, the same cannot be enforced against him in his individual capacity. He cited the case of DAWAPA Security Group vs Eradius John, Misc. Civil Application No. 163 of 2020 High Court of Tanzania, Mwanza sub-Registry in which my brother, Hon. Manyanda J, certified the issue whether the Applicant is liable to the Respondent individually for breach of contract with the association which the respondent is a member to be a point of law worth to be determined by the Court of Appeal. 3 He is of the opinion that, since the Applicant in this application did not sign the contract in dispute and was not party to the contract, cannot be held responsible in its execution. In his reply submission, the Respondent argued that the High Court collected additional evidence by exercising powers vested in it under section 29(a) of the Magistrates Courts Act, [Cap 11 R.E 2019], thus, the act cannot be certified as a point of law. On the second issue he argued the same is a factual issue thus it shouldn't be certified for consideration by the Court of Appeal. He reminded the Court what constitutes a point of law by citing the case of Mohamed Mohamed and Another vs Omar Khatib, Civil Appeal No. 68 of 2011 in which the Court of Appeal explained what may constitute a point of law. The Court held: "... for instance, where there is a novel point, where the issue raised is unprecedented, where the point sought to be certified has not been pronounced by the Court before and is significant and goes to the root of the decision, where the issue at stake involves jurisdiction, where the court(s) below misinterpreted the law etc..." He then argued that, the issues raised by the Applicant for certification do not constitute points of law to be certified for determination by the Court of Appeal. He then prayed to have the application dismissed with costs. I have considered Court record and submissions by the parties. I agree with the Respondent that not all issues qualifies to be certified as points of law to be determined by the Court of Appeal. Issues of facts generally, cannot be certified as points of law for a third appeal to the Court of appeal of Tanzania. 4 The Court of Appeal in the case of Magige Nyamoyo Kisinja vs Merania Mapambo Machiwa (Civil Appeal 87 of 2018) [2021] TZCA 42 (25 February 2021) the Court of Appeal when dismissing an appeal for lack of certified points of law for determination, emphasized on what may constitute a point of law worth to be certified for determination by the Court of appeal. It held that: 'We must emphasize that the point to be certified by the High Court must be that of legal nature and significant to warrant the decision of the Court. It is not enough for a party in a third appeal, like in the instant appeal, to simply think the lower court is wrong in its decision to have his case heard by the Court of appeal. Matters of law which the Court is called upon to determine must transcend the interest of the immediate parties in the appeal.' With that guidance, I will now proceed to determine if the issues raised by the Applicant are points of law worthy of being certified for determination by the Court of Appeal. The first issue raised by the applicant is a pure legal issue. Despite that, I do not find it to be worth of being certified for determination by the Court of Appeal of Tanzania because, the Court exercised powers vested in it by section 29(a) of the Magistrates Courts Act. The relevant provision reads; In the exercise of its appellate jurisdiction under this Part, the High Court shall have power— (a)to take or to order some other court to take and certify additional evidence and, whether additional evidence is taken or not, to confirm, reverse, amend or vary in any manner the decision or order appealed against (including, without prejudice to the generality of the foregoing, power to substitute a conviction, or a conviction and sentence, for an order of the district court substituting an acquittal for a conviction, and power to make declaratory orders), so however that 5 the decision or order os ottered sholl not be in excess of the jurisdiction of the court of first instonce' Literal interpretation of section 29(a) of the Magistrates Courts Act indicates that, the High Court has powers to take and certify additional evidence as expressly stated in the section. In brief, what this Court did in PC Civil Appeal No. 6 of 2023 is merely exercising powers vested in it by the law. Thus, the issue though legal in nature, it is not significant to be certified for determination by the Court of appeal. In such circumstances, I find this issue to be not worthy of being certified as a point of law to be determined by the Court of Appeal. On the second issue, I find the same to be a mere factual issue that does not qualify to be certified as a point of law. In holding so, I considered the fact that, the contract in dispute was executed by the Applicant in his individual capacity and it was blessed by his wife Mariam Liphoba Lukoba who signed the agreement as per instructions given by the Applicant. She also granted her consent to have the properties of the Applicant disposed to recover the remainder amount in case the Applicant fails to pay the purchase price within the agreed period. In short, the allegations that the contract was executed by an association is not born by record. Similarly, the confusion as to who is responsible with the breach of contract between the association and the Applicant which existed in the case of DAWAPA cited by the Applicant does not exist in this matter. For those reasons the Application is dismissed with costs. Dated at Tabora this 3rd day of October 2024 6 Z.D.MANGO JUDGE 7