final ruling CATERINA SEMBUA MLAMBO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI CIVIL APPEAL NO. 1908 OF 2024 (Appeal from the Ruling of the District Court of Moshi at Moshi dated 9th November 2023 in Misc. Application No. 20 of 2023) CATERINA SEMBUA MLAMBO………………………….1ST APPELLANT MWANAMISI SEMBUA MLAMBO………………………2ND APPELLANT MACHARO SEMBUA ………………………………………3RD APPELLANT MARIA SEMBUA……………………………………………4TH APPELLANT BAKARI SEMBUA ………………………………………….5TH APPELLANT GULACHED SEMBUA MLAMBO ………………………….6TH APPELLANT VERSUS LEO MRISHA ………………………………………………… RESPONDENT JUDGMENT 17th July & 15th August 2024 A.P. KILIMI, J.: This appeal traces its origin in a probate case filed at the Primary court of Mabogini wherein the respondent, Leo Mrisha petitioned to be appointed as administrator of the estate of the late Sembua Mcharo Mlambo who was his father. The appellants mentioned above objected his petition, but upon both parties being heard the said Primary court proceeded to appoint the respondent to be administrator of the said estate. 1 The appellants were aggrieved by the decision of the Primary Court, but for the reasons known to them they could not appeal on time hence they filed at the District Court of Moshi an application for extension of time to allow them appeal out of time. The application was registered as Misc. Application No. 20 of 2023 at the District Court. After hearing the District Court decided that the applicants did not give sufficient reason for delay therefore the application was struck out. Dissatisfied with the decision of that court, the appellants preferred an appeal to this court on three grounds as follows: 1. That the learned trial magistrate erred in law for failure to consider that the illegality as to jurisdiction was sole ground for enlargement of time. 2. That the learned magistrate failure to consider that the appellant adduces sufficient ground suffice for extension of time. 3. That the learned trial magistrate erred in law to struck out the application instead of dismiss. At the hearing of this appeal Mr. Mandela Mziray learned advocate appeared and argued the appeal for the appellants whereas Mr. Emmanuel Shayo, learned advocate appeared and represented the respondent. 2 Before submitting in support of this appeal, Mr. Mziray prayed to abandon the last two grounds of appeal and pointed out to argue the first ground only. In such respect Mr. Mziray argued that the appellants challenged the trial magistrate for not considering the issue of illegality as to jurisdiction being the sole ground for enlargement of time. Expounding this ground the learned counsel submitted that the law provides in the fifth schedule of the Magistrate Court Act in item 1(1) and section 3(1) and (2) of the Magistrate Court Act, that Primary Court will have jurisdiction to hear the Probate within a District where the deceased at the time of death had a fixed place of abode within a local limit of the court jurisdiction. Therefore, it was his submission that the District Court failed to consider that at the time of the deceased death, he was having a permanent place of abode at Mwanga District, and that the fact was so stated at paragraph 6 of the applicants counsel’s affidavit filed at District Court and also on the death certificate. Mr. Mziray submitted further that the deceased never even had any properties within Moshi District but the Administrator who is the Respondent filed the probate case at Mabogini Primary Court. He argued that the District Court magistrate only mentioned the illegality in his ruling 3 but did not explain or analyses about the said illegality. The counsel added had he done so, he could have helped them to be granted extension of time. To bolster his stance the counsel referred cases of Anna John Mwambinga vs. Bahati John Mwambinga Appeal No. 8 of 2020 High Court Mbeya and another case of Gabriel Mathias Mohamed vs. Halima Feruzi and Another Civil Application No. 204 of 2020 TZCA 307/2022 which he said it was stated that illegality is sufficient for extension of time regardless the account of each day of delay. Having said so, Mr. Mziray prayed for the appeal to be allowed for extension of time to Appeal in the District Court. In his reply Mr. Shayo opposing the application contended that this is an appeal for extension time, Appellant delayed for one month and two weeks but he did not account for all that period. Further the counsel submitted that based on the judgment of the District Court at page 2 and 3 when praying to extend time, the appellant told the court that he was late because he did not get the Judgment of the Primary Court within time, but at page 5, 6, 7 and 8 of the District Court decision, the Court refused to extend time because there was no sufficient cause to grant the extension of time. 4 He further submitted that under regulation 3 of the (Appeal proceedings originating in Primary Courts) Rules of 1964 provides that appeal in the District Courts will be by petition of appeal and that petition will show grounds of appeal. He argued that the rules are silent on whether the petition has to be accompanied with the Primary Court decision or judgment. Hence, he contended that based on that provision, the District Court was justified in its decision of not granting extension of time. He thus prayed for this court to reject the appeal since no sufficient reasons were adduced. Addressing the ground of illegality where the learned counsel for the appellants alleged that the Mabogini Primary Court lacked jurisdiction because the deceased place of abode was in Mwanga and Hai, it was Mr. Shayo’s submission that the allegation is not true. He submitted that the deceased was a pastoralist, so he was moving on different places for grazing thus he used to go to Mwanga, Mikocheni Moshi, and Long’oi at Hai. He further submitted that due to that fact the deceased acquired properties in all three places. He said the deceased was having a cow shed at Mikocheni Area in Moshi Urban also another cow shed at kikavu chini in 5 Moshi Rural areas. He said since the properties of deceased were scattered some being in Moshi district that is why the respondent had to file a Probate Case at Mabogini Primary Court which is within Moshi District. It was Mr. Shayo’s further submission that the law allows for a probate case to be filled where the deceased had a permanent home of residence or where he has properties. To substantiate his argument, he referred to the case of Albert Estomi Kimonge vs. frenk J. Kimonge and Another Probate Appeal No. 2 of 2019 at High Court. He contended therefore that the Mabogini Primary Court was having jurisdiction to hear and determine the probate case. Furthering his submission on the issue of illegality Mr. Shayo stated that not all points of illegality are sufficient for extension of time. Citing the case of John Aklely Matoyi (supra) Mr. Shayo submitted that extension of time cannot be granted every time when the point of illegality is in issue and also that for illegality to be of sufficient importance it must be apparent on face of record. He argued that what the appellant say is not seen on face of records. He therefore submitted that their point of illegality is misconceived and so he prayed for the appeal to be dismissed. 6 In his rejoinder Mr. Mziray submitted that the cited cases of Yonathan Shedrack and that of John Aklay Matoi they are land cases and not probate hence distinguishable. In respect to the issue of illegality the counsel maintained that deceased had a place of residency which was at Mwanga and not at Moshi therefore he argued that Mabogini primary court had no jurisdiction. Further the counsel said that respondents in their affidavit at the District Court they never said deceased had properties in different places whereas in appellants affidavit, they stated with evidence of a death certificate that the deceased had a permanent residency at Mwanga and not Moshi. Then concluded that Mabogini primary court lacked jurisdiction to try the case, and thus prayed for the appeal to be allowed and to be granted extension of time to appeal. After careful perusal of the records of proceedings, trial court decision, grounds of appeal and submissions thereof, I shall now proceed to determine whether the appeal has merit. The appellants’ main grievance is that the district court erred by not considering the point of illegality as to jurisdiction as the ground for extension of time. 7 It is a trite law where the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record straight. (See Principal Secretary, Ministry of Defence v. Devram Valambhia [1992] T.L.R. 182 at page 189). However, the illegality in question must be that of sufficient importance and the same must be apparent on the face of record and not the one that would be discovered by a long-drawn argument or process. (See Ngao Godwin Losero vs Julius Mwarabu. Civil Application No. 10 of 2015; Lyamuya Construction Company Ltd vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported); Tumsifu Kimaro (The Administrator of the Estate of the Late Eliamini Kimaro) vs. Mohamed Mshindo, Civil Application No. 28/17 of 2017, [2018] TZCA 40 (TANZLII); African Marble Company Limited (AMC) vs. Tanzania Saruji Corporation (TSC), Civil Application No. 8 of 2005 [2005] TZCA 87 (TANZLII); Chandrakant Joshubhai Patel v. Republic, [2004] TLR 218, Abdi Adam Chakuu vs. Republic, Criminal Application No. 2 of 8 2012 [2017] TZCA 138 (TANZLII), Ansaar Muslim Youth Center vs Ilela Village Council & Another, Civil Application No. 310 of 2021 [2022] TZCA 615 (TANZLII) and Monday Kachingwe vs Athumani Salum Kitambazi (Civil Application No. 115/17 of 2023) [2024] TZCA 642 (TANZLII) to mention few. In Chandrakant’s case (supra), the Court of Appeal held that: - " An error apparent on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions...It can be said of an error that is apparent on the face of the record when it is obvious and self- evident and does not require an elaborate argument to be established…” According to the appellant’s counsel affidavit filed at the District court the said alleged illegality was averred at paragraph 6 and for the purpose of reference I reproduce the said para hereunder; 9 “6. That, the Applicants seek to appeal against the said decision which was also tainted with illegality as follows: (a) The Primary Court of Mabogini had no jurisdiction to determine the matter pursuant to death certificate, deceased was resident of Mwanga District. Copy of death certificate is hereby attached and marked as MK4 forming part of this Affidavit.” I have considered the district court ruling, with respect the issue of jurisdiction was not ascertained by the learned trial Resident Magistrate although it was argued by appellants’ counsel, the ruling maintained only the issue of whether attachment of copy of judgment was a must at the appeal from Primary court. Nonetheless, since this court being the first appellate court is entitled to re-evaluate, the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision, I now proceed in such respect. (See the decisions of the Court of Appeal in Future Century Ltd v. TANESCO, Civil Appeal No. 5 of 2009, and Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (all unreported). 10 Now, in considering the above stated paragraph in relation to the authority above, one question appears very convenient whether the same suffice to show error apparent on the face of record. I have considered the submission of the appellants’ counsel, he argued that the District Court failed to consider that at the time of the deceased death, he was having a permanent place of abode at Mwanga District, and that the fact was so stated at paragraph 6 of the applicants affidavit filed at District Court and also on the death certificate. However, I am mindful this court before which an application for extension of time is filed ought not go into the details of the matter. This is because by doing, so the court shall be dealing with an appeal not yet filed in court. According to the wording in affidavit quoted above, display that the Primary Court of Mabogini had no jurisdiction to determine the matter pursuant to death certificate, deceased was resident of Mwanga District. In my opinion, I think mere saying the court has no jurisdiction, is not automatic reason for extension of time, but it needs ground to be depicted on the face of record that the issue of jurisdiction is sound. 11 I have entirely considered those words in that paragraph, in my view it does not meet what is said standard of an error apparent on the face of the record, this is because, some questions remained unanswered, for instance, death certificate is issued regarding to the place the death occurred by District Authority, thus whether can be used to ascertain that the deceased is the resident of the said District triggers uncertainty which need to be resolved. In this regard, it is my considered opinion, the above alleged illegality needs long drawn process of reasoning on points and evidence in order to ascertain whether actually the deceased was the resident of Mwanga District or not. Having endeavored as above, I am in agreement with Mr. Shayo that, in the instant matter, the ground of illegality, that the Primary Court of Mabogini had no jurisdiction to entertain the case because of locality which was not deceased’s resident, is not apparent on the record. And this is because as alluded above it requires a long-drawn process and argument to establish it. In view thereof, I am satisfied that the appellants did not establish good cause for this court to grant them extension of time to file appeal at the District Court. Consequently, I find the ground of appeal of illegality 12 devoid of merit and thus I proceed to dismiss this appeal in its entirety. According to nature of this matter I grant no order as to costs. It is so ordered. DATED at MOSHI this 15th day of August, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 15th day of August, 2024 in the presence of Ms. Mwanaidi Idrissa advocate holding brief of Mandera Mzirayi for the Appellants. Mr. Emanuel Shayo advocate for the respondent. Sgd; A. P. KILIMI JUDGE 15/08/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 15/08/2024 13