Ruling Sadarbibi on the Certification on point of Law

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION No 16360 /2024 CASE REF NO 202407101000016360 (Arising from the judgment of Civil Appeal no. 118 of 2021 of the High Court of Tanzania, Dar es Salaam District registry, Mis. Civil application No. 7124 of the High Court of Tanzania, Dar es Salaam sub-registry, arising from the District Court of Kinondoni at Kinondoni in Probate Appeal No. 05/2021 and originating from the judgment of the Primary Court of Kinondoni in Probate cause No. 130 of 2020) SADARBIBI MOHAMED HAJI ……………………………….……......…APPLICANT VERSUS SHARIFA ZAM................................................................... 1ST RESPONDENT ZULFIKAR MOHAMED HAJI .............................................2ND RESPONDENT RULING 26th Nov. 2024 & 13th Feb. 2025 KIREKIANO, J: The dispute between the parties emanates from the administration of the estate of the late Mohammed Sarfraza Haji. The deceased was the father of the applicant and the 2nd respondent and a husband to the 1st respondent. Since his demise, the administration of his estate has not been so well, leaving his family members in a legal battle over the estate. The applicant and the 2nd respondent were granted the letters of administration of their late father, Mohamed Sarfraza Haji. On the other 1 hand, the 1st respondent, Sharifa Zam, the deceased’s wife claimed to be the deceased’s testatrix. Upon proving this, the 1st respondent brought a will dated 23 February 2015 and alleged that the same was executed by her late husband Mohammed Sarfraz Haji. It was contested by the other party alleging that the same was forged and fabricated. Upon full trial, the trial Court accepted the will as a valid will and appointed the applicant and respondents as joint administrators (sic) of the deceased’s estate. Undaunted, the applicant and second respondent appealed to the District Court, which dismissed the appeal. Still dissatisfied, they appealed to this Court, which, on 9 June 2023, quashed the District Court’s judgment, declared the will invalid, and directed the appointed administrators, (sic) who are the applicant and the first respondent, to administer the estate according to Islamic law. The applicant, still dissatisfied, wishes to knock on the doors of the Court of Appeal to protest the order of administering the estates of the deceased in accordance with Islamic law. The applicant thus seeks this court to certify that there is a point of law to be determined by the court of appeal. The application was argued by written submissions by leave of the court. The applicant was represented by Sigano M. Antony, advocate 2 while the second respondent enjoyed the service of Sigsbert Ngemera learned advocate. The first respondent appeared in person without representation and informed this court that he was not contesting the application. The applicant in his affidavit pointed out one point on which she believes is a point of law to be determined by the Court of appeal to wit: - (i) Whether the second appellant Court was proper to order the administering of the estate of the deceased in accordance with Islamic law without taking into consideration the provision of Section 88 (1) (a) of the Probate and Administration of the Estates Act (Cap 352, RE 2019). In his submission in chief, the applicant referred this Court to Section 88(1)(a) of the Probate and Administration of Estates Act. The court needs to consider certain tests before ordering the estate to be administered under Islamic law. He submitted that even though the Court nullified the contended will, which was purported to be the will made in compliance with Islamic Law, it went on to order Islamic law to be applied to administer the estate of the deceased while no proof on the assertion of professing Islam religion, the lifestyle of the deceased and no agreement between the heirs on the administration of the estate by Islamic law. 3 He referred this Court to the case of Ismail Amiri Charity and 5 others vs Mwanahamisi Rajabu Kimweri, Misc. Civil Application no. 469 of 2022, pp. 7-8, where the Court cited the case of Salum Said Mtiwe @ Another vs Nurdin Mohamed Chingo, Pc. Civil Appeal No. 129 of 2019 states that Islamic Law is applied after going through three tests: the intention of the deceased, the lifestyle of the deceased, and the agreement of the heirs. It was his view that ordering the estate to be administered by Islamic law without considering the three tests amounts to an error on point of law, which deserves to be determined by the Court of Appeal of Tanzania. He finally prayed this Court to grant the application and to certify paragraph 6 (i) of the applicant’s amended affidavit as a point of law to be determined by the Court of Appeal. The counsel for the second respondent disputed the applicant’s application, contending that the legal flaws do not qualify for the test of granting the application. He submitted that Section 88 (1) (a) of the Probate and Administration of Estate (supra) deals with a small estate. Therefore, it has nothing to do with the current proceedings, which, from the beginning, did not fall within small estates. 4 He insisted that the points of law that must be certified must emanate from the law governing proceedings from the Primary Court, which is Primary Court (Administration of estates) Rules, GN. NO. 49 OF 1971. Since the District Court always deals with small estates, there is nothing this Court can certify. He submitted that certification on the point of law does not deal with facts but proof of law, and the law cited is not applicable in matters originating from the primary court. He distinguished the cited case of Salum Said Mitwe and Ismail Amir Charity as they were referring to small estates as provided for under Section 88 (1)(a) of Cap 352 which does not apply in this case. He finally prayed the Court not to grant the application as there is no point of law to be certified. In rejoinder submission, the counsel for the applicant reiterated what he submitted in chief and added that the fact that the Probate and Administration of Estates Act (supra) is not applicable in Primary Court is not disputable, but the error of ordering/directing the estates of the late Mohammed Sarfraz Haji (the deceased) to be administered by Islamic law ordered by this Court acting as the second appellant Court and not the trial Court, hence the contention of inapplicability of Probate 5 and administration of estates Act as advanced by the 2nd respondent is devoid of merit. He finalised that since the second respondent has not contested granting the application, not granting it will prejudice her rights. He prayed the Court to certify the contents of paragraph 6 of the affidavit as a point of law that needs to be determined by the Court of Appeal. I have carefully considered the learned counsels' argument. The issue to be determined is whether the contention raised is a point of law that the Court of Appeal should decide. In so doing, I am guided by decision in The Regional Manager- Tanroads Lindi v DB Shapriya & Company Ltd, Civil Application No. 29 of 2012, CAT (Tanzlii), where the Court of Appeal stated that: - “It is now settled that a Court hearing an application should restrain from considering issues that are to be dealt with by the appellate Court. This is so in order to avoid making decisions on substantive issues before the appeal itself is heard. As such, reading from section 5(2) (c) of the Appellate Jurisdiction Act, Cap 141 R.E 2019, what is important here is whether a point of law is involved in this court's decision. In the absence of such a point, the 6 application will not be granted by consensus or simply because it is not contested. I have examined the applicant's affidavit. According to paragraph 6, the issue posed involved the law applicable in the administration of the estate and whether such a decision on the law to be applicable could arise from the second appellant court without facts applied on test of its applicability. I have considered the respondent's argument that section 88 (1) PAEA is not applicable in primary court. However, what is common ground here is that the application of Islamic Law in the administration of estate in the primary courts is equally done after some tests. It borrows the tests in section 88 (1) of the Probate and Administration of Estates Act. Thus, what is important here is the principle. With that note. I have examined the affidavit and considered the parties' submission. I believe this application is merited, and thus, it is certified for the Court of Appeal consideration: Whether this court, as a second appellate Court, was proper to order the administration of the estate of the deceased in accordance with Islamic law without taking into consideration the tests for the application of the Islamic law as provided under Section 88 (1)(a) of the Probate and Administration of the Estates Act (Cap 352, RE 2019). 7 In the end, this application is granted, and each part bears its own costs. A J KIREKIANO JUDGE 13.2.2025 COURT: Ruling delivered in the presence of Mr Sigano Antony, adv for the applicant, in the absence of the 1st respondent, and in the presence of Mr Hilary Malasa, counsel for the second respondent. A J KIREKIANO JUDGE 13.2.2025 8