eliminata masinda and another vs maswet masinda and another 2021 tzhc 12573 17 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA MISC. CIVIL APPLICATION NO. 47 OF 2021 (C/F (PC) Civil Appeal No. 47 of2020, probate and Administration Appeal No. 12 of 2017 in the District Court of Babati and Babati Primary Court in Probate and Administration Cause No. 1 of2009) ELIMINATA MASINDA.........................................1st APPLICANT NICODEMUS CRECENT MASINDA........................ 2nd APPLICANT VERSUS MASWET MASINDA......................................... 1st RESPONDENT JOSEPHAT MASINDA...................................... 2nd RESPONDENT RULING 6 & 17/12/2021 ROBERT, J:- In this application, the applicants, Eliminata Masinda and Nicodemus Crecent Masinda, sought leave of this court to appeal to the Court of Appeal of Tanzania (CAT) against the judgment and decree of this court in (PC) Civil Appeal No. 47 of 2020 and for a certificate on i point of law to be issued. The application is supported by an affidavit sworn by Mr. Bharat B. Chadha, learned counsel for the applicants. Having been aggrieved by the decision of Babati Urban Primary Court where the respondents herein successfully filed an application for revocation of grant of letters of administration, the appellants unsuccessfully appealed at the District Court of Babati. Aggrieved, the appellants unsuccessfully appealed to this Court vide PC Civil Appeal No.47 of 2020. Still aggrieved, the applicants are now intending to appeal to the Court of Appeal of Tanzania. In the affidavit filed in support of this application, the learned counsel for the applicants stated that, the decision of this Court is legally incorrect, unfair and unjustified and therefore needs to be rectified by the Court of Appeal as it resulted to miscarriage of justice. He stated at paragraph 8 of the said affidavit that the intended appeal involves the following important points of law for determination by the Court of Appeal: (i) Whether the High Court was justified in validating of mandatory provisions of Rule 3 of the Magistrates Courts (Primary Courts) (Judgment of Court) Rules) G.N. No. 2 of 1988 by the Primary Court under the doctrine of substantialjustice? 2 00 Whether the High Court was justified in holding that the Notice of Appeal in question is deemed to have been withdrawn in terms of the provisions of Rule 89(1) and Rule 91(a) of the Tanzania Court of Appeal Rules, 2009 while the power to do so lies exclusively with the Court ofAppeal of Tanzania? (Hi) Whether the High Court wasjustified in not considering that after holding that Notice ofAppeal is deemed to have been withdrawn, the decision of the Honourable High Court (Mr. Justice K.M. Sambo, as he then was) rendered the High Court as functus officio in that regard? (iv) Whether the High Court was justified in validating the opening of the duplicate file in the Primary Court by an empty file cover without placing the copies of the original record and, in that, by placing the onus on the Appellants for supplying the copies of the original record in absence of any prior direction from the Primary Court to that effect? (v) Whether the High Court was justified in holding that the requirement in terms of the mandatory provisions of Rule 5(2) and (4) of the Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971 is not applicable to the facts of this case. (vi) Whether the High Court was justified in holding that violation of Appellants' right to present her case fully is not supported by tangible evidence while the court record shows that trial court was informed about her sickness? (vii) Whether the High Court was justified in holding that the Appellant would have produced copy of form VI, while the record shows that Form VI was on the record and the filing of refilled form VI was blocked by former trial PCM - Hon. B.R. Semoroki. 3 At the hearing of this application, Mr. Felchismi Baraka, learned counsel, holding brief for Mr. Bungaya Matle B. Panga, learned counsel for the respondents informed the Court that he had been instructed to concede to the application. As a response to that concession, Mr. Bharat B. Chadha, learned counsel for the applicants moved the Court to grant the prayers sought in the chamber summons. From the affidavit and records filed in support of this application, this Court will now make a determination on the merit of this application. It is a settled position that, in order to succeed in an application for leave appeal to the Court of Appeal, the applicant must demonstrate that the proposed appeal raises contentious issues worth taking to the Court of Appeal or are of such public importance, or contain serious issues of misdirection or non-direction likely to result in a failure of justice and worth consideration by the Court of Appeal (See Citibank Tanzania Limited v. Tanzania Telecommunications Company Ltd and 5 others, High Court of Tanzania (Commercial Division), Misc. Commercial Cause No. 6 of 2003, at Dar es Salaam (unreported)) In the present matter, considering the substance of issues raised by the applicants, after the decision of this Court, for determination by 4 the Court of Appeal as revealed in paragraph 8 of the supporting affidavit and the intended memorandum of appeal (annexure 4), this Court finds the legal issues raised to be of considerable substance which requires an imposing interpretation by a superior Court. Coming to the issue of certificate on a point of law, this Court having made a finding that the intended appeal raises contentious legal issues worth of determination by the Court of Appeal, the practice of this Court is to frame such a point or to approve and adopt the points framed by the intending appellant and to certify it to the Court of Appeal (See Harban Hajimosi and Another vs. Omari Hilal Seif and Another (2001) TLR 409). Guided by that approach, this Court having examined the arguable points of law raised in paragraph 8 of the applicants' affidavit as noted above, considers the issues raised particularly in paragraph 8(i), (ii) and (v) to qualify as points of law worth of determination by the Court of Appeal. The remaining are matters of fact which raises no contentious legal issues. That said, this Court certifies the following points of law for determination by the Court of Appeal 1. Whether the High Court was justified in validating the violation of mandatory provisions of Rule 3 of the Magistrates Courts (Primary Courts) (Judgment of Courts) Rules) G.N No. 2 of 5 1988 by the Primary Court under the doctrine of substantial justice? 2. Whether the High Court was justified in holding that the Notice of Appeal in question is deemed to have been withdrawn in terms of the provisions of Rule 89 (1) and Rule 91 (a) of the Tanzania Court ofAppeals Rules, 2009 while the power to do so lies exclusively with the Court ofAppeal of Tanzania. 3. Whether the High Court was justified in holding that the requirements of giving notice in terms of the mandatory provisions of Rule 5 (2) and (9) of the Primary Courts (Administration of estates} Rules G.N No. 49 of 1971 is not applicable to the facts of this case. In the end, this application is allowed. The applicants are granted leave to appeal to the Court of Appeal of Tanzania and a certificate on points of law is issued in respect of the points of law listed above. I give no order for costs. It is so ordered. K.N. ROBERT JUDGE 17/12/2021