julieth paulinius matwe vs rahel daud mkoma 2023 tzhc 16001 28 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB-REGISTRY AT MWANZA CIVIL APPLICATION NO. 58 OF 2022 JULIETH PAULINIUS MATWE …………………………………………… APPLICANT VERSUS RAHEL DAUD MKOMA ……………………………….………………… RESPONDENT RULING 11th October 2022 & 28th February 2023 ITEMBA, J. By way of a chamber summons, under the provisions of section 5 (1)(c) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019, the applicant seeks to move the Court to grant leave to appeal to the Court of Appeal, in respect of Misc. Civil Application No. 2 of 2022. In the said application, the applicant had prayed for the court to extend time in order to appeal against the judgment and decree of Ilemela District Court at Ilemela. Her application was dismissed The chamber summons is supported by an affidavit, sworn by Julieth Paulinus Matwe, the applicant herein, and it sets out the grounds in which the prayers are sought. The respondent has opposed the application through a counter affidavit sworn by Rahel Daud Mkoma. Her contention is that the 1 application and grounds on which the prayers are made do not constitute sufficient grounds for grant of leave. When the matter came up for hearing, Mr. Einhard Mshongi, learned counsel, appeared for the applicant while the respondent was represented by Mr. Mashinda Joseph, learned advocate. The respondent raised the preliminary objection orally before the court which was not encountered by Mr. Mshongi. Submitting in respect of the preliminary objection, Mr. Joseph contended that his objection is premised on the point of law on the competence of the application. He submitted that he is disputing on the applicant to move the court under section 5 (1)(c) of the Appellate Jurisdiction Act, for leave to appeal to Court of Appeal against the orders of the High Court while the law requires that the applicant to apply for the certificate on point of law because this matter originated from Primary Court. He argued that, the application is improper and the court should strike it out with costs. In response, Mr. Mshongi took the view that the preliminary objection is lacking in merit because when the High Court entertained the impugned decision, it was not entertaining appeal or revision from the District Court, it was dealing with application for extension of time to lodge 2 an appeal which did not succeeded, and that the certificate on point of law is applicable only if the applicant want to appeal for the third time. He argued that it was proper to rely upon section 5 (1)(c) of the Appellate Jurisdiction Act and therefore the objection holds no water and it should be overruled. In his short rejoinder, Mr. Joseph held on to the contention that the law is clear on matters originating from primary court, the applicant will need to apply for a certificate on point of law. Upon being probed by the court on the law which guide on how to move the court when the matter is from Primary Court and reaching the Court as the third appeal, the applicant’s counsel relied on the case of Mathew Mlay v Rashid Majid Kasenga Civil Application No. 354/17 of 2020 CAT at Dar es Salaam which mentions the need for a certificate on point of law. Having appraised the submission from both parties, the issue is whether the preliminary objection has merit. An objection will qualify as a preliminary objection if the same conforms to the requirements and description which was set by the superior Court in its decision in Sugar Board of Tanzania v. 21st Century Food and Packaging & Two Others, Civil Application No. 20 of 2007 (unreported). It was held as follows: 3 “A preliminary objection is in the nature of legal objection not based on the merits or facts of the case but on the stated legal procedural or technical grounds. Such an objection must be argued without reference to evidence” In the case cited by the applicant’s counsel of Mathew Mlay v Rashid Majid Kasenga, at page 8, second paragraph states as follows; ‘Certificate on a point of law becomes a requirement when a party intends to appeal to the court for the third time. That is, where the matter originates from the primary court a certificate on a point of law is a legal prerequisite under s. 5 (2)(c) of the AJA. The court lucidly explained this procedure in the case of Eustace Kubalyenda Vs Vanance Daud, Civil Appeal No. 70 of 2011 (unreported)…..’ I therefore subscribe to the view held by Mr. Mshongi. Following the case of Mathew Mlay (supra), applications for certificate on a point of law are governed by section 5 (2) (c). which states as follows: “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 certifies that a point of law is involved in the decision or order.” While section 5 (1) (c) which states: 4 5.-(1) In civil proceedings, except where any other written law for the time being in force provides otherwise, an appeal shall lie to the Court of Appeal. A. n/a, B. n/a C. with the leave of the High Court or of the Court of Appeal, against every other decree, order, judgment, decision or finding of the High Court. (2) Notwithstanding the provisions of subsection (1)-. Based on the above provision, I will go straight to the point that, before this court, is an application for leave to file appeal before the court of appeal, this application is against a High Court decision and has nothing to do with the Primary Court. As this application is not coming to the court as an appeal for the third time, it goes therefore, the need of applying for certificate of point of law is not applicable under the circumstances. As we embark on resolving the issue raised herein above, I find that, in this application, the applicant has rightly moved this court. Having said that, the preliminary objection is hereby overruled. As the matter emanates from probate application, each party to bear its own costs. 5 It is so ordered. Right of appeal explained. Dated at MWANZA this 28th day of February, 2023. 6