JUDGMENT Ephraim Edward Ngole vs

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA MISCELLANEOUS CIVIL APPLICATION NO. 27715 OF 2023 (Arising from the High Court of Tanzania at Mbeya in PC. Civil Appeal No. 02 of 2023) EPHRAIM EDWARD NGOLE ………………………………………………. APPLICANT VERSUS ZAKAYO SHADRACK MATIGA ….……………………………………….. RESPONDENT RULING Date of Last Order: 9th August, 2024 Date of Ruling: 28th August, 2024 KAWISHE, J.: This is an application made under section 5(2)(c) of the Appellate Jurisdiction Act (Cap. 141, R.E 2019). The applicant is seeking this court to certify that there is a point of law to be considered by the Court of Appeal of Tanzania, in the decision made by this court, sitting as the second appellate Court in PC. Civil Appeal No. 02 of 2023. 1 Briefly, the background of this application can be derived from the Primary Court of Songwe District at Mwambani (trial court) in Civil Case No. 67 of 2022 in which the applicant sued the respondent for breach of contract. Dissatisfied with the decision of the trial court the matter was referred before the District Court of Songwe and later on to the High Court of Tanzania at Mbeya Sub-Registry, the first and second appellate courts. In its decision, the High Court quashed the decision of the lower courts and part of the trial court’s proceedings and ordered the hearing of the suit from where the proceedings were salvaged. The main reason for the decision was on the ground that, the respondent (appellant) was not accorded with the right to be heard. The applicant was aggrieved by the decision of the High Court and he intends to appeal to the Court of Appeal of Tanzania, the Apex Court of our land, in case the prayers sought in this application are granted. In the affidavit sworn in support of the application, the applicant has proposed three points of law which needs to be determined by the Court of Appeal. The proposed points of law can be paraphrased as follows: i. Whether the respondent who was the defendant before the trial court was denied the right to be heard. 2 ii. Whether it was correct for the respondent to raise the issue of the right to be heard before the second appellate court. iii. Whether the High Court, being the second appellate court was correct to order for the respondent to be heard before the trial court while that right was waved by the respondent during trial. The respondent filed his counter affidavit opposing the application arguing that the applicant has no arguable points of law to be certified by this court for the determination by the Court of Appeal. During the hearing of this application the applicant appeared in person while the respondent was represented by Ms. Pamela Kalala, learned advocate. By the parties’ consent the application was argued by way of written submission and the scheduled orders of this court were adhered. Supporting the application, the applicant argued all the grounds for determination on points of law jointly. He averred that, the High Court, being the second appellate court was wrong in deciding that the respondent was denied the right to be heard on the ground that, he was not given an opportunity to call his witnesses before the trial court. He contended that, since the respondent closed his case before the trial court, the second appellate court was wrong in deciding that he was denied the 3 right to be heard. He added that, since the respondent was aware that the suit was fixed for hearing and he failed to appear, it was correct for the trial court to close the case and order for the date of judgment. He insisted that, the law allows the court to proceed ex parte where the party who was duly notified on the date of hearing fails to enter appearance. I supported his assertion by the case of Director of Public Prosecutions vs. Eston Seleman (1994) TLR 9. The applicant further submitted that, it was not correct for the second appellate court to find the trial court erroneously decided the suit while it was in the better position to decide the matter than the second appellate court. To amplify his argument, he referred the case of Ally Abdallah Rajabu vs. Saada Abdallah Rajabu & Others (1994) TLR 132 and Augustino Kagana, Atanas Nyamoga and William Mwanjenge vs. Republic (1994) TLR 16. Opposing the application, Ms. Kalala, the respondent’s learned counsel faulted the applicant’s submission that the respondent was given the right to be heard. She argued that, it is clear from the face of records of the trial court that, the respondent was denied the right to be heard which is contrary to article 13 (6) (a) of the Constitution of the United 4 Republic of Tanzania, 1977. Ms. Kalala submitted further that, the second appellate court correctly decided the matter as the proceedings of the trial court were tainted with illegalities. She argued that, the trial court erred when it closed the respondent’s case while there were other witnesses to be called by the respondent. She contended that, it is the duty of a party to the case to close his/her testimony and not the trial court. She further unfolded that, the trial court erred in law when it refused to adjourn the case without a genuine reason and as a result it occasioned injustice as it was stated by the second appellate court. Reinforcing her argument, she cited the case of Arcado Ntagazwa vs. Bunyengera Bunyambo (1992) TLR 242. It was the respondent’s advocate stance that, granting or refusing to grant an order certifying the point of law under section 5 (2) (c) of the Appellate Jurisdiction Act (supra) is in the discretion of this court but the same is to be exercised judiciously. She cited the decision made in the cases of John Waziri Mpanga vs. Calvert Sindato, Miscellaneous Civil Application No. 23 of 2021 (unreported) and Agnes Severine vs. Mussa Mdoe (1989) TLR 164. 5 She added that, in this application there is no any point of law to be certified by this court for the determination by the Court of Appeal and prayed for this application to be dismissed with costs for lack of merit. In his short rejoinder, the applicant argued that, the prayer sought in this application is for certification of points of law stated in the affidavit sworn in support of the application. That, he is not imploring the Court of Appeal to re-evaluate the evidence given before the trial court. He insisted that, the respondent was not denied the right to be heard. That, he was given an opportunity to call his witnesses but he failed. The applicant prayed for this application to be granted so that he can be availed with an opportunity to be heard before the Court of Appeal. This application is made under section 5(2)(c) of the Appellate Jurisdiction Act (supra) which requires all appeals from the High Court to the Court of Appeal in the nature of civil cases which emanates from Primary Courts to be certified by this court on whether there is a point of law to be determined. The said provision reads as follows: “5(2)(c) no appeal shall lie against any decision or order of the High Court in any proceedings under Head (c) of Part III of the Magistrates’ Courts Act unless the High Court 6 certifies that a point of law is involved in the decision or order.” It is true that, the above cited provision does not provide the guiding criteria in dealing with applications of this nature. Also, I am alive and aware that, in the application for certification of points of law to appeal to the Court of Appeal, this court does not sit to assess the correctness or otherwise of the impugned decision. This court only looks on whether the proposed grounds of appeal meet the minimum requirements of an arguable case. This was a reasoned opinion made by the High Court of Tanzania in the case of Narender Reddy Kolampally vs. Ramesh Babu Nimmaguda & Another, Misc. Civil Application No. 18 of 2022 (unreported). In essence, when considering application for certification of point of law, it is worth to consider what prompted the legislators to enact this provision which acts as a filter to what qualifies to be placed before the Court of Appeal. Having that in mind, when exercising the judicial powers bestowed unto this court, an application has to be taken very seriously. If not so, the essence of having the provision under section 5(2)(c) of the AJA will yield futile. The principle developed by the Court of Appeal in 7 Dorina N. Mkumwa vs Edwin David Hamis (Civil Appeal No. 53 of 2017) [2018] TZCA 221 (11 October 2018) is very crucial. The Court of Appeal had this to state: "It is therefore self-evident that applications for certificates of the High Court on points of law are serious applications. Therefore, when the High Court receives applications to certify point of law, we expect Rulings showing serious evaluation of the question whether what is proposed as a point of law, is worth to be certified to the Court of Appeal.” Therefore, in granting an application certifying the point of law to be determined before the Court of Appeal, before this court, the applicant must demonstrate that there are serious and contentious issues of law fit for consideration by the Court of Appeal. In the instant application, this court is called upon to determine on whether the applicant has demonstrated any point of law worth to be considered by the Court of Appeal. I am compelled to peruse the judgment delivered by the High Court at page 17, the second appellate Judge, amplified what transpired on the denial of right to be hear on the part of the respondent/appellant. He stated: 8 “It is plain from the above snippet of information that on 01/11/2022, the trial court scheduled the hearing to continue on 02/11/2022. The snippet further shows that on the date and time scheduled, the appellant was absent in court although he sent another person to pray for adjournment of the hearing. It also shows that the trial court received the information about the appellant's absence but the trial court refused to adjourn the matter. It is worth to note that the trial court comment on the information received that the appellant's absence is nonsense. Later on a reflection, the matter was scheduled for the delivery of the judgment. It is the contention of appellant, and rightly so in my observation that the trial court's action was, with respect arbitrary. Also, the first appellate court did not cure the mischief of the trial court to close the defence case without justification. In my view, that was a clear indication of violation of a right to a fair hearing guaranteed under Article 13 (6) (a) (ii) of the Constitution. I say so for the following reasons; one; the appellant, though sent a person for the purpose of praying adjournment in accordance with rule 51 of the Primary Courts Civil Procedure Rules, G.N. No. 310 of 1964, was not granted the right to adjournment before the last order to close the defence case was made.” The excerpt from the judgment of the High Court which the applicant seeks certification to task the Court of Appeal shows that the respondent was the one who was denied the right to be heard. I cannot see any point of law which needs to be certified. In his affidavit he deposed that he is imploring the Court on the following points law; whether the respondent who was the defendant before the trial court was denied the right to be heard. This was raised before the High Court and determined. The decision of the 9 court to was very clear that the trial court denied the respondent/appellant right to be heard by closing his case. In the snippet quoted from page 17 of the judgment it was clear that the trial magistrate was wrong to close the defence case without justification. There is nothing new in this point to be certified as point of law. Also, his argument is whether it was correct for the respondent to raise the issue of the right to be heard before the second appellate court. It is a trite law that a question of point of law can be raised at any stage of the case. See Peter Mpalanzi vs. Christina Mbaruka, Civil Appeal No. 153 of 2019. His third point is whether the High Court, being the second appellate court was correct to order for the respondent to be heard before the trial court while that right was waved by the respondent during trial. From the record available and the judgment of the High Court show that the respondent could not attend to court on 2/11/2022. The record of the trial court showed that the respondent sent another person to pray for adjournment of the hearing. The trial court refused to adjourn the hearing and commented that respondent’s absence is nonsense. It is a bit surprising that, the court heard the parties on 1/11/2022 and agreed to proceed on 2/11/2022. The respondent did not appear with information and the record of the trial court depicts the same. 10 Why couldn’t the trial court adjourn the matter instead of rushing to closing the respondent’s case. This by itself was a mischief. When certifying whether there is a point of law, the court has to bear in mind the position of the Court of Appeal which has been insisted again and again. In the case of Shangwe Mjema vs. Frida Salvatory and Another, Criminal Appeal No. 103 of 2017 the Court insisted that: "It should be noted that this is a third appeal... It is a mandatory requirement that a party intending to appeal to this Court, must seek and obtain from the High Court a certificate on points of law involved in the appeal. The provisions of section 5(2) (c) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 (the Act) are unambiguous on that requirement. The import of the above quoted provisions is that without a certificate on a point of law... the appeal before the Court is invalid." [emphasis is added] Stressing on the duty of the High Court in certifying a point of law, the Court of Appeal in the case of Mohamed Mohamed and Another vs. Omari Khatib, Civil Appeal No. 68 of 2011 The Court stated as follows on what constitutes a point of law: "... 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..." [emphasis supplied] 11 In view of the extract from the case of Mohamed Mohamed and Another (supra), I am alive that appeal is a statutory right to any aggrieved party. Given the provision of section 5(2)(c) of Appellate Jurisdiction Act, certification must be on a point of law. Therefore, I am convinced that the applicant’s application does not have a novel point. Whatever he raised as a point of law to be considered by the Court of Appeal has been well dealt with by the High Court in the second appeal. It is a settled law that the right to be heard is a constitutional right, once violated the courts cannot close eyes even for a second. The respondent was denied his right to be heard by the trial court and that has been remedied by the High Court. As I stated earlier the intention of the legislators to enact provisions requiring certification before an appeal lies to the Court of Appeal. I do not see any point of law in this application worth to be considered by the Court of Appeal certifying this application it will amount to tasking the Court of Appeal to re-evaluate the trial court’s evidence which is not the intention of the third appeal. In the event, the application lacks merit. Hence, dismissed with costs. It is so ordered. 12 Right of appeal explained. DATED and DELIVERED at MBEYA this 28th day of August, 2024. E. L. KAWISHE JUDGE COURT: Ruling delivered virtually before Mr. Ntegwa Mpinyagwa learned counsel holding brief for Ms. Pamela Kalala learned counsel for the respondent and in the presence of the applicant, Mr. Ephraim Ngole. E. L. KAWISHE JUDGE 28/08/2024 13