hilal ahmad mbaraka vs mohamed ahmed mbarak 2023 tzhc 15829 27 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO.505 OF 2022 (Arising from Civil Appeal No.12 of 2022 High Court at Dar es Salaam, Originating from Civil Appeal No. 1 of 2022 Bagamoyo District Court, Original Probate Cause No. 39 of 2020 Mwambao Primary Court HILAL AHMAD MBARAK…………………………..…..………..APPLICANT

VERSUS MOHAMED AHMED MBARAK.………………….............RESPONDENT

RULING Date of last Order: 12/12/2022 Date of Ruling: 27/02/2023 POMO, J Under section 5(2)(c) of the Appellate Jurisdiction Act, [Cap. 141 R.E.2019] this court is moved by the Applicant to certify what he contends to be seven points of law allegedly worthy consideration and determination Page 1 of 8 by the Court of Appeal of Tanzania against the decision of this court in Civil Appeal No. 12 of 2022 delivered on 10th October, 2022 Hon. M.K. Ismail, J. The Application is supported by the affidavit deponed by Hilal Ahmad Mbarak the Applicant herein. The contended points of law sought to be certified by this court are stated under paragraph 15(a) – (g) of that affidavit and they read as follows:- “Para. 15 - That, there are points of law arising from the impugned decision for the Honourable Court to certify for consideration and decision of the Court of Appeal, namely: a) Whether the power of the Primary Court to appoint administrator suo motu can be exercised without giving reasons and without regard to the wishes of the deceased and the heirs and beneficiaries persons b) Whether it was proper and justified for the court to impose on the applicant the burden to prove that the person it has appointed suo motu in the course writing a judgment that was not qualified for the appointment and when prior issue of intention to appoint respondent as administrator was tabled for parties to

make comments or address c) If Islamic law was found to be the applicable law whether it was proper for the courts ignore its applicability to the Will and in Page 2 of 8 determining illegitimacy of the respondent and other children of the deceased Ahmad Mbarak Abad d) Whether it was proper and justified to ivalidate a Will under Islamic law for disposing of more than one-third to one person, and for the testator using plural and not singular as a person who made Will, and failure of testator to indicate in the Will the date he said e) Whether it was proper under the law for the court to invalidate a Will without calling witnesses to testify how and in which circumstances the Will was made f) The High Court failed to analyze and evaluate the evidence and judgment of the Primary Court and the Judgment of the District Court as a result the five out of nine grounds of appeal in the District Court were not dealt with but was found by the High Court to have been determined thereby denying the applicant the right to be heard g) Having found that Islamic law was applicable to the estate and after invalidating the Will which inherited illegitimate children thereby when turning estate to be intestate the courts erred in law for the failure to determine those illegitimate children who cannot inherit and legitimate children who can inherit”. End of quote Page 3 of 8 The above contended

points of law are strenuously resisted by the Respondent in his counter affidavit who is of the view, under paragraph 11 of his counter affidavit, that the same are not points of law but factual issues which have conclusively been dealt with by the lower courts The background to the application, albeit briefly, is that the Applicant filed Probate and Administration Cause No. 39 of 2020 before Mwambao Primary Court of Bagamoyo District praying to be appointed executor to the estate of his late father one Ahmad Mbarak Omary Abad who passed away on 10/05/2020 Bagamoyo Hospital in Coast Region leaving behind the Will in which the applicant is named the executor. The said Will was contested by the Respondent that it was an invalid Will. The trial court upheld the objection and declared that Will to be invalid henceforth court’s declaration that the late Ahmad Mbarak Omary Abad died intestate. Due to the nature of the two contending parties, the trial court, while exercising its power under paragraph 2(a) of the Fifth Schedule to the Magistrates’ Courts Act, [Cap 11 R.E.2019], did appoint both the Applicant and the Respondent to be administrators of the estate of the late Ahmed Mbarak Omary Abad the decision which aggrieved the Applicant. Page 4 of 8 On 4/1/2022 he filed Civil Appeal No.1 of 2021 before Bagamoyo District Court containing nine grounds of appeal the appeal which ended

up being dismissed for want of merit on 14/04/2022 Hon. M.B. Mmanya, RM. That was not the end, on 13/05/2022 he filed PC Civil Appeal No.12 of 2022 in this court the appeal which contained six grounds of appeal. Again, this appeal on 10/10/2022 was dismissed for being unmerited Hon. M.K. Ismail, J who uphold the two lower courts decisions. The Applicant is still aggrieved as such on 26/10/2022 did lodge the notice of appeal to the Court of Appeal the notice which was served and received by Charles Lugola, advocate on 31/10/2022 for the Respondent. And on 08/11/2022 this Application for certification of points of law was lodged On 14/12/2022 when the Application came for hearing, the Applicant was present represented by Mr. Daimu Khalfani, the learned counsel while the Respondent appeared represented by Juvenalis Motete, the learned counsel too. By consensus, it was agreed hearing of the application be by way of written submissions, the order the parties dully complied with. I am grateful to the counsel’s industrious submissions they have made in support and opposing the Application. Page 5 of 8 Nevertheless, reading the written submissions made by the Applicant in support of the application, in it he submitted as if is arguing the merit of the grounds of appeal already placed before the Court of Appeal. The submission loudly so speaks from 2nd paragraph of page 2 up to page 13.

It is my view, this court being a high court is not clothed with such power to determine the merits of the grounds of appeal at the stage of an application for certification of the points of law. Those are submissions which ought to be done before the Court of Appeal should the application be certified by this court. In determining the Application, my power is limited to that of finding out if the contended grounds are worthy being certified as point of law or otherwise for consideration and determination by the Court of Appeal, this is per the dictate of Section 5(2)(c) of the Appellate Jurisdiction Act [Cap 141 R.E.2019] which provides thus :- “(2)(c)- no appeal shall lie against any decision or order of the High Court in any proceedings under Head (c) of party III of the Magistrates’ Court Act unless the High Court certifies that a point of law is involved in the decision or order Page 6 of 8 The said Head (c) of Part III of the Magistrates’ Court Act reads as follows: - “(c) Appellate and Revisional Jurisdiction of the High Court in Relation to Matters Originating in Primary Courts”. End of quote In Hamis Mdida and Another Versus The Registered Trustees of Islamic Foundation, Civil Appeal No.232 of 2018 CAT at Tabora (unreported) at page 11 the Court of Appeal had this to state: “The court would generally look at the judgment or ruling sought to be appealed against to

assess whether there are arguable grounds meriting an appeal. Certainly, such a determination will be made at the end of the day after some deliberation but not an adjudication on the merits of the proposed grounds”. End of quote Guided by the above cited provisions of the law and the decision of the Court of Appeal in Hamis Mdida case (supra) the issue for determination is whether what is provided under paragraph 11(a)-(g) of the affidavit supporting the Application are grounds worthy to be certified as points of law for consideration and determination by the Court of Appeal of Tanzania. Having gone through the impugned high court decision together with the lower courts records, I am persuaded that what is asked for certification Page 7 of 8 as points of laws under the said paragraphs 11(a)-(g) of the affidavit in support of the Application are worthy consideration and determination by the Court of Appeal. I thus certify them to be point of law worthy consideration and determination by the Court of Appeal In the upshot, the Application is hereby allowed with no order as to costs. It is so ordered. Dated at Dar es Salaam this 24th day of February, 2023 MUSA K. POMO

JUDGE 24/02/2023 Page 8 of 8