MISC CIV APPLC 20240114000000641 HELENA WILLIAM VS PAUL MASANJA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA MISC. CIVIL APPLICATION 20240114000000641 (Arising From the Judgment in the Ifigh of the United Republic of Tanzania at Shinyanga, (Hon. Justice Kulita) in Pc. Civil Appeal No.13of 2023) HELENA WILLIAM JAMES APPLICANT VERSUS PAUL MASANJA EMMANUEL RESPODENT RUI1ING l~h & zs» March 2024 F.H. Mahimbali, J The applicant herein sought a certificate of this court that there is a point of law involved worthy to be determined by the Court of Appeal of Tanzania against the whole Judgement and Decree of this Court given by Hon. S.M, Kulita, J on 30/11/2023 in Pc. Civil Appeal No. 13 of 2023. In the said judgement, this Court partly allowed the appeal. The application has been brought by way of Chamber Summons under S. S(c) of the Appellate JuHsdiction Act, Cap 141 RE 2022 and 1 accompanied by an affidavit of JELENA WILLIAM JAMES, the applicant. Disgruntled with the findings of this Court, the applicant filed the current application for certification tlhat there is a point of law involved which needs attention of the Apex Court. Summons sworn by HELENA WILLIAM JAMES, at ,aragraph 4 thereof, stipulates as grounds for the intended appeal, thr i) That the 2nd appellate cour erred in law by failure to interpret section 114 (1) of the Law rarriage Act, Cap 29 RE2019. ii) That, the 2nd appellate cour erred in law by disregarding that the l key and material witness must be called to testify before the Court as he or she had info mation and knowledge on the subject matter. iii) That the z= appellate cour erred in law by considering personal properties as matrimonia properties and divided it to the respondent. iv) That the z= appellate cou t erred in law by not distributing the spare parts shop which th' applicant was the supervisor for ten years consecutively. 2 When the matter was schedu ed for hearing, both parties were present in person and unrepresented. Arguing to the application, the applicant prayed that this court I be pleased to certify as to wh~ther there is a point of law to go to CAT after being dissatisfied by the decision of this court (Kulita J), I She also prayed that her affidavit be adopted to form party of her I submission. She also added that as per paragraph 13 of her adopted affidavit, the notice of appeal is wrongly referred as dated 18/11 /2023 instead of 21/12 /2023. It be rectified tOrread dated as 21st December 2023. Also, in paragraph 6 of her afftdavit, it be read as 2pt December 2023 instead of 18th November 202l Also, as per paragraph 2 of her affidavit, it be read as matrimonifl case No. 98 of 2022 and not 68/78 of 2022. She thus finally prayed for her application to be granted. In reply to the proposition by /the applicant, the respondent prayed for the dismissal of the application as there is nothing for determination by the CAT in the alleged grounds ~or this Court's certification. He is also I of the considered view that, what the lower courts ruled is right as per law. Thus, prayed for his affidavit in opposition of the application be adopted by the Court to form part of his submission against the I 3 application. Furthermore, as regards r the notice of intention to appeal, he stated that he is not copied Wit~ the said alleged notice of appeal though in her affidavit she is referrind having lodged it on 18th November 2023 while the said judgment appea ed against was pronounced on 30th November 2023. He therefore submitted that, lhiS application is just intended as wastage of time from enjoying his r"ght so far granted to him. Thus, he prayed for the application to be dis issed as it is baseless. In rejoinder, the applicant maintained her submission in chief. She also added that her affidavit in support of the application be well digested in consideration of the application. Having examined the Chamber S mmons and its supporting affidavit, the counter affidavit and parties' rival submissions, the issue to be resolved is whether the applicants have shown sufficient issues to be determined by the Court of Appeal. Since certification on point of law is not automatic, this Court will have to consider whether or no the grounds raised in paragraph 4 of the affidavit qualify to be certified, that they contain points of law worth determinable by the Court of Appe I of Tanzania. 4 It is further notable that in applications to certify that there are points of law to be considered by the Court of Appeal in the intended appeal, are serious legal applications. They are much deliberative than applications for leave to CAT. Unlike applications for leave in which the High Court is more interested whether there are arguable grounds factual or legal, in applications for certification on point of law, the High Court's duty is to determine whether the said proposed as a point of law, is worth determinable by the Court of Appeal. In the case of AH Vuai AH Vs. Suwedi Mzee Suwedi [2004] TLR 110, the Court of Appeal held: "Certificate on a point of law is required in matters originating in Primary Courts/ it is provided therein that an appeal against the decision or order of the Might Court in matters originating in Primary Courts would not be unless the High Court certifies that a point of law is involved in the decision or order in the case of DORINA N. MKUMWA VERSUSEDWIN DAVID HAMI~ Civil Appeal no. 57 of 201~ the Court of Appeal regarding application on certificate on point of law. It is therefore self- evident that applications for Certificates of the High Court on points of law are serious applications. Therefore/ when High Court receives applications tGJcertify point of law, we expect S2::: 5 ---- t Rulings showing serious evetuetion of the question whether what is proposed as a point of tew, is worth to be certified to the Court of Appeal. This Court does not expect the certifying High Court to act as an electrical conduit to allow whatsoever the intending appellant proposes as point of law to be perfunctorily forwarded to the Court as point of law.... " Guided by the above principles, in reflection with the case at hand, it has been argued that there are points of law which need attention of the Court of Appeal of Tanzania. I have looked upon the issues raised which need intervention of the Court of Appeal, indeed are legal issues which are to be settled by the Court of Appeal of Tanzania. It is clear without scintilla of doubts that it is unsettled for instance our law provides that one who alleges must prove. see Section 110 TEA and thus there is no number of witnesses required in proving the case. see section 143 of TEA, then the question to ask is whether the court is bound to call material witness when not brought by the parties. Therefore, issue no.(ii) in para 4 of the applicant affidavit needs attention of the CAT deli beration. However, it is not well settled as to whether the personal properties are eligible for division in matrimonial cause when found that the alleged 6 properties were developed jointly b the parties. Meanwhile, it is not settled as to whether being a supeiisor of matrimonial properties for number of years does it confer autolatic right of ownership over the said property? All these issues in my considered Viiw need a legal recourse and thus worth determinable by the Court of Appeal. With the above analysis, the application by the applicant has merit and consequently is hereby granted as prayed. All grounds are hereby certified as point of law worth determinable by the Court of Appeal. --~ F.H. ahimbali 7