Misc

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. CIVIL APPLICATION NO. 27620 OF 2023 (Arising from the High Court of Tanzania at Sumbawanga in Civil Appeal No. 8 Of2023 which originated from Mpanda District Court in Civil Appeal No. 39 of2022 and Mpanda Urban Primary Court in Civil Case No. 193 of2022) JOYCE ELIAS ©MICHAEL......................... . APPLICANT VERSUS GUNYA BUCHEYEKI......................... ............................................... RESPONDENT 03h November 2024 & 13h February 2025 MRISHA ificate on a point of law instituted by Joyce Elias @Michael7the Applicant which is brought under Section 5 (c) of the Appellate Jurisdiction Act [Cap 141 R.E 2019]. The same is supported by an affidavit deposed by the Applicant. Despite being countered by Gunya Bucheki, the Respondent, the application was objected to on the ground that it is time berried and made without a Notice of Intention to Appeal, as required by the law. i Briefly, the records reveal that the applicant sued the Respondent at Mpanda Urban Primary Court (the trial court) claiming for Tsh. 4,527,000/= as the purchasing price of 105 sacks of paddy. The matter was heard and the Judgment entered in favour of the applicant, and the trial Court ordered the respondent to pay only 23 sacks of paddy weighing 90 kilograms and costs of the suit to the of Tsh.10,000/=. Aggrieved by the decision, the applicant file ppeal No. 39 of 2022 at the District Court of nda ere upon hearing the appeal, the said fi ld the decision of the trial Court and, conse e appeal for want of merit. Again, the applica as ugh PC Civil Appeal No. 08 of 2023, the igh Court against the decision of the first el co eal in question was found to be devoid of merit and c q tly, the court dismissed the same with costs. Subsequ to th ismissal order, the applicant filed this application for a certificate that there is a point of law worthy for determination of the Court of Appeal concerning P.C Civil Appeal No.08 of 2023. It is such application which is now objected by the respondent. During the hearing, the applicant appeared in person, unrepresented while the respondent appeared in person, unrepresented too. Since both 2 were unrepresented and layman, the applicant started submitting by praying to this Court to adopt her affidavit which state the grounds for her application for it to form part of her submission in chief. She finally implored this Court to grant her application. On the other side, the respondent did the same; he prayed to adopt his counter affidavit along with notice of preliminary iection raised, to form part of his submission in chief and urg ike out the applicant’s application with costs. Upon reading the grounds of prelimin d, I find it proper to start with the first gr of preli iection which touches the jurisdiction of this Cou un hat the application is time barred. It is s diction of the Court goes to the root of the authority o rt on hearing of the case and, the Court is barred ntertai a matter which is time barred. (See: Swilla Secondary School v. Japhet Petro, Civil Appeal No. 362 of 2019 (unreported). It is pertinent to say that, the preliminary objection on time limit is one of the preliminary objections on point of law which goes to the jurisdiction of the Court and that does not need to ascertain on the facts 3 or evidence. The Court needs to look into the application and documents attached in the application. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A 696. The issue of objection was explained at page 700, where the Court held that: “So far, I am aware, a preliminary objection consists of point of law which has been plea< or which arise by clear implication out of which if argued as a preiimi of the suit. Exampl re risdiction of the Court, o itation or a submission th bound by contract In the light of the above observation, the main issue is whether the preliminary objection raised by the respondent will suffice to dispose of the instant application. Upon perusal of the applicant’s pleadings, I observed that the decision which is subject to this application in PC Civil Appeal No. 08 of 2023 was delivered on 30th October, 2023. Looking at the application filed in Court and endorsement, shows it was filed on 12th December, 2023 and endorsed on the same date. 4 Since the challenged decision was pronounced on 30th October, 2023 counting of the days starting from 31st October, 2023 to 1st December, 2023 it makes a total of 42 days. Section 5 (2) (c) of the Appellate Jurisdiction Act [Cap 141[R.E 2019] requires every appeal to the Court of Appeal of Tanzania against any decision or order of the High Court on matter originated from the Primary Court, to be certified by the High Court on a point of law which is involved in the decision or order sought to be challenged. This position was critically ^explained in the case of Eustance Kubalyenda v. Venance Daud, Civil Appeal No.70 of 2011 and also in the case of Methew Mlay v. Rashid Majid Kasenga, Civil Application No.354/17 of 2020 (both unreported). However, the law does not set a specific time for applying for a certificate on the point of law. The time for application of certification on point of law so as to appeal to the Court of Appeal is derived from the Law of Limitation Act, Cap 89 R.E. 2019 whereby item 21 of Part III of the Schedule to the Act, provides that: “Application under the Civil Procedure Code, the Magistrates Court or other written law for which no period of limitation is 5 provided in the Act or any other written law time limitation, will be sixty days” The above position of the law was elucidated by this court in the case of Omari Rwechungura Kakweke v. Evarist Magoti, Misc. Land Application No.1 of 2022, HCT, where it was expressed that the time for application on point of law so as to appeal to the of Appeal, is 60 days. This Court find and hold that, sinc he a certification on a point of law was filed on 12 the High Court pronounced its judgme 30 23; it is 42 days. Hence, the date of expirati for was 29th December, 2023. Apparently, t on on a point of law was not out of time. of iminary objection therefore dismissed. Regarding the b of preliminary objection on notice of appeal, the law ery clear that an application for certification on a point of law, in order to enable the Court to grant the application, the applicant must first file a notice of appeal to the Court of Appeal before filing an application of this nature as required under Rule 46 of the Court of Appeal Rules which reads: 6 “46(1) Where an application for certificate or leave is necessary, it shall be made after the notice ofappeal is lodged. The applicant in her affidavit at paragraph 5 deponed that she was dissatisfied with the decision of the High Court in PC Civil Appeal No. 8 of 2023, thus intends to appeal to the Court of Appeal. Although, the applicant has deponed that she intends to appeal to the Court of Appeal, it is on record that the notice of appeal whi her intention, was not annexed to her affidavit. The respon it in idavit has disputed all facts deponed by the a as further added that there is no any point of law which warrants this court to certify for the Court of Appeal for its determination. That warrant me to s to thoroughly go through the records of the High Court in PC Civil Appeal No. 8 of 2023 in order to see whether the notice of appeal was filed. Through my perusal of such records, I found a notice of appeal filed on 29th November, 2023 and endorsed on the same date of 29th November, 2023. Thus, it is my considered opinion that even though the notice of appeal was not annexed in the applicant’s affidavit and despite being aware of the principle that parties are bounded by their pleadings, this court for 7 the sake of justice, still acknowledge that the said notice of appeal filed on 29th November, 2023 and the same was filed within time. In the circumstance, I find the second ground of preliminary objection to lack substance and proceed to dismiss it. For the interest of justice and to serve time as the justice could have been delayed; this court finds appropriate to ceed with the determination of the matter at hand, on meri ether there is any point (s) of law worth his c to certification. It is noted that, this court has on to certify to the Court of Appeal a point ( in the impugned decision. The duty is not to rec so aw or fact or both, to see if there is a poi onsidered by the Court of Appeal in the inte da Havi said so, av oroughly investigated the applicant’s supporting affidavit at paragrap 6 (1)(2)(3) and (4) wherein it is averred that there are legal issues worthy to be determined by the Court of Appeal. The applicant has raised a point that the High Court denied to grant her costs of the suit without giving reason for doing so; also, the court decided based on an exhibit which was not produced and admitted by the court, and she has also raised the issue of contract and conditions of 8 contract all of which I find to be questions of law worth certification for determination by the Court of Appeal through the applicant's intended appeal. In the view thereof, this application is granted. Costs to be in the due course. 9