leonce angero

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA MISC. CIVIL APPLICATION NO. 8790 OF 2024 (Arising from High Court of Tanzania Civil Application No. 41 of 2020, (PC) Civil Appeal No. 5 of 2014 of High Court of Tanzania at Bukoba, Probate Appeal No. 4 of 2024 of Karagwe District Court, Probate Case No. of 2011 of Kayanga Primary Court) LEONCE ANGELO……………..…………………….…............ APPLICANT

VERSUS DOMITINA ANGELO………..................................... 1ST RESPONDENT JOHANES SOSTENESS……………………….………….2ND RESPONDENT

RULING 19/09/2024 & 25/10/2024 E. L. NGIGWANA, J. The application beforehand was filed under the provisions of sections 1, 2, (1) (3), 5, 9, 11 (1) (a), (b), (c) and proviso (i) of the Judicature and Applications of Laws Act, [Cap 358 R.E 2019], Section 78 (1), (b) and Order XLII Rule 1(1) (b), (2), 2 and 8 of the Civil Procedure Code, [Cap. 33 R.E 2019 ("the CPC"), Rule 48 (1) of the Primary Court Civil Procedure Rules, 1963 GN. No.310 of 1964 and section 21 (2) (3) (a) (b) and (c) of the Law of Limitation Act, [Cap. 89 R.E 2019] praying for orders; 1 1. That, this Honorable Court be pleased to review its own Ruling and order dated 28/07/2021 that no point of law was found to be considered by the Court of Appeal, and certify points of law to the Court of Appeal for consideration of the appeal of the applicant pending to the Court of Appeal by the Notice of appeal lodged by the Applicant (sic).

2. Any other order this Honorable Court may find it fit to grant, and 3. Costs be provided for. The application was supported by an affidavit sworn by the applicant’s counsel Mr. Mathias Rweyemamu. The same was vehemently contested through a counter affidavit sworn by the respondents’ advocate Mr. Lameck John Erasto. The historical background to this application as can be gathered from the available records is as follows; the applicant is the son of the late Angelo Novat while the 1st respondent was the wife of the deceased Novat Angelo who died on 21/2/2011. Through Probate and Administration Cause No.30 of 2011, the applicant petitioned for letters of administration of the estate of his deceased father, but before being appointed, the 1st respondent filed an 2 objection on the ground that the applicant was not worthy of being appointed. Upon hearing the parties, on 29/08/2013, the primary Court appointed both the applicant and the 1st respondent to administer the estate of the late Angelo Novat and submit the report of their work within four (4) months. However, after the expiry of four months and three weeks, the applicant approached the primary court seeking the revocation of the 1st respondent on the ground that she was not cooperative. Upon hearing the parties and considering the Will left by the deceased, the Primary Court revoked their appointment on the grounds of

failure to discharge their duties. In their place, the 2nd respondent whose position is a Ward Executive Officer (W.E.O), hence a neutral party, was appointed to administer the deceased’s estate according to the Will that was left by the deceased. Aggrieved by the decision of the Primary Court, the applicant appealed to the District Court of Karagwe through (PC) Civil Appeal No. 4 of 2014 to challenge his revocation and the validity of the Will. The District Court confirmed the validity of the Will, revocation of the applicant, and 3 appointment of the 2nd respondent, Johannes Sosthenes. Consequently, the said appeal was dismissed. Aggrieved by the decision of the 1st appellate Court, the applicant knocked on the door of this court through (PC) Civil Appeal No.5 of 2017 complaining that the lower courts erred in law to validate the Will which according to the applicant, was a purported one and contrary to the legal requirement of spousal consent and one of the witnesses was not a clan member. The second complaint was that the trial court had no good and sufficient cause to revoke the appointment of the applicant as the administrator of the estate save the 1st respondent. Upon hearing the parties, this court (Kairo J as she then was), found the two complaints devoid of merits. Consequently, the appeal was dismissed. The applicant was aggrieved by the decision of this Court

(Kairo J as she then was) in (PC) Civil Appeal No. 5 of 2017 and hence filed a Notice of Appeal to the Court of Appeal, and an application for certification on points of law to be referred to the Court of Appeal for consideration. The application for certification on points of law was registered as Miscellaneous Civil Application No. 41 of 2020. As per the chamber summons, the points of law that were sought to be certified to the court of appeal read as follows; 4 1. That, the purported Will of the deceased was a “nullity” for lack of being signed by the maker, and never witnessed by two competent witnesses and Spouses under Local Customary Law (Declaration) Order 1963 GN No.436/1963.

2. That, the purported Will did not distribute estates of the deceased persons according to customary law and other beneficiaries were not included without justification.

3. That, the trial court grossly erred to revoke the Appointment of the Applicant who was appointed by clan members, without justification.

4. That, all proceedings conducted by F.M Fredrick-Hakimu Mkazi were nullity for interference with the personal jurisdiction of W.I. Walter- Hakimu who had appointed the Applicant and 1st Respondent waiting for the order of receiving inventories and distribution of the Estate of the deceased person contrary to rule 48(1) (2) of the Primary Court Civil Procedure Rules 1963 G.N No.310 of 29/5/1964.

5. That, the whole evidence and testimony taken by F. M. Fredrick- Hakimu Mkazi were nullity for being taken against the requirement of 5 Rule 46 (1)(2)(3) of the Primary Court Civil Procedure Rules 1963 G. N.310 OF 29/05/1964.

6. That, the 2nd respondent was appointed without any legal justification at the detriment of the distribution of Estates of the deceased illegally. When the matter came for hearing before Kilekamajenga J, the applicant enjoyed the services of Mr. Mathias Rweyemamu, learned counsel, while the respondents enjoyed the service of Mr. Lameck Erasto. The matter ended up being dismissed on the ground that there was no point of law worth being certified to the Court of Appeal for consideration. The applicant was aggrieved by the ruling of this court therefore, through Advocate Mathias Rweyemamu, he lodged an application for revision to the Court of Appeal which was registered as Civil Application No. 140/04 of 2022. However, on the 19th day of March, 2024 when the same was called on for hearing, Mr. Mathias Rweyemamu successfully prayed to withdraw it. On 22nd April 2024, the applicant, through the services of Mr. Mathias Rweyemamu learned advocate knocked on the doors of this court seeking the aforementioned reliefs. The grounds for this application were stated in 6 paragraphs 5, 6, 7, 8, 14, 15, and 16 of the affidavit supporting the application. In paragraph 5 of the affidavit supporting the application, it is averred that when the hard copy of the ruling was availed to the applicant, the applicant was surprised to find that the Hon. Judge had signed that the applicant had dropped

all six grounds and argued first ground alone. Paragraph 6 is to the effect that the entire proceedings and drawn orders and the court ruling did not disclose where and when Mr. Rweyemamu dropped any ground of point of law. Paragraph 8 is to the effect that failure of the proceedings to disclose that the learned counsel dropped the points of law is a serious error on the face of the record and a mistake committed by the presiding judge which caused injustice to the applicant for denying him a fair hearing. The Hon. Judge’s act of dismissing the application on the ground that there was no point of law to be certified to the Court of Appeal was a serious error and mistake because there were points of law that were listed in the chamber summons. It was further stated in paragraph 14 of the affidavit that the application for review is fundamental because the points of law were apparent on the face 7 of the record which were left to be attended on a misconception that they were dropped by the advocate of the applicant; thus, there is a need for this court to exercise its discretion judiciously to meet the ends of justice. Paragraph 15 of the affidavit supporting the application is to the effect that, the Court of Appeal in its discussion for revision which was filed before it, was of the stance that an application for revision cannot be applied once the applicant still has not

exhausted the remedy of review which the court can reflect on its proceedings and orders and review its ruling, and consider the application for certification on points of law to be certified to the Court of Appeal, and certify them accordingly. Paragraph 16 is to the effect that the Hon. Judge admitted that he perused all the records and proceedings of the trial Primary Court, the district court, and the High Court and discovered that there were no points of law to be considered although there were several, but the trial Judge did not exercise his judicial discretion judiciously to certify them to the Court of Appeal. As pointed out earlier, this application was contested by the respondent through a counter affidavit sworn by his learned counsel Mr. Lameck Erasto. It is further stated in the counter affidavit that the learned counsel for the applicant abandoned five points of law and argued the first point on the 8 validity of the Will. The same is further to the effect that the fact that the applicant was surprised to see in the ruling that the points of law were dropped is nothing but an afterthought. During the hearing of this application, Mr. Rweyemamu reiterated the contents of the affidavit supporting the application. He added that the proceedings of this court do not reflect what transpired in the court. He went on to submit that, he was representing the applicant and

he did not any time drop five grounds to be certified and remained with first ground only. He further argued that this court can review its own decision to correct the errors which are on the face of the record. He cited the case of Christina Mrimi vs Coca-Cola Kwanza Bottlers Ltd (Civil Application 113 of 2011) [2012] TZCA 1 (3 May 2012) Tanzlii and Christina Mrimi vs Cocacola Kwanza Bottlers Ltd (Civil Appeal 112 of 2008) [2009] TZCA 33 (19 February 2009) Tanzlii to show how the Court of Appeal of Tanzania reviewed its own decisions and urged the court to be guided by the two cases in reviewing its proceedings, ruling and orders. In reply. Mr. Lameck adopted the counter affidavit to form part of his oral submission. He went on to submit that the Court of Appeal gave no directions that this application be filed therefore; paragraph 15 was meant to mislead 9 the Court. The order of the Court of Appeal of Tanzania is very clear that Mr. Mathias Rweyemamu just prayed to withdraw the application and the same was marked withdrawn. Mr. Lameck added that the argument that the learned counsel for the applicant did not abandon the rest of the points and argued only one, is unfounded otherwise submission on the rest of the points of law sought to be certified to the Court of Appeal would have been intact in the court record. He went on to submit that there is no error apparent on the

face of the record which needs to be rectified, and he cited the case of JOVET Tanzania Limited vs Bavaria N.V (Civil Appeal No. 317 of 2021) [2024] TZCA 737 (15 August 2024) Tanzlii, to support his argument. Having considered the grounds of review and the parties' submissions thereto, the issue for determination is whether this application is meritorious. Before embarking on that task, I would like to state clearly that the general rule regarding applications as per the Civil Procedure Code is that; every application has to be made by way of chamber summons supported by affidavit. Order XLIII rule 2 of the Civil Procedure Code, [Cap 33 R.E 2019] provides that; 10 “Every application to the Court made under this Code shall, unless otherwise provided, be made by a chamber summons supported by affidavit: Provided that, the Court may where it considers fit to do so, entertain an application made orally or, where all the parties to a suit consent to the order applied for being made, by a memorandum in writing signed by all the parties or their having regard to all the circumstances under which the application is made.” However, every general rule has its exceptions. One of the exceptions of the herein above procedure is provided for under Order XLII rule 3 of the Civil Procedure Code, [Cap.33 R. E 2019]. The same states that; “The provisions as to the form of preferring appeal shall

apply, mutatis mutandis, to applications for review” It is undisputed that Order XLII rule 3 of the CPC as it appears herein above has been coached in the mandatory form, therefore; in my view, and being guided by section 53 (2) of the law of Interpretation Act which provides that, where in any written law the word “shall” is used in conferring a function, 11 such a word shall be interpreted to mean that the function so conferred must be performed, compliance of the Order XLII rule 3 is not optional. Reading Order XLII rule 3 of the CPC, it is apparent that the application for review is made by way of a “Memorandum of review” supported by “grounds of review”. The instant application was made by way of “Chamber summons” supported by “an affidavit”. It is trite law that an affidavit is evidence on oath while the grounds for review require further proof to show the propriety of the said application, and for that matter, grounds of review cannot be raised in an affidavit. Even if we consider that this application was properly filed and argued, still the same is devoid of merit for reasons to be apparent soon. Section 78 (l) (b) of the Civil Procedure Code, [Cap. 33 R. 2019] “CPC” provides for a substantive part conferring this court with the jurisdiction to grant the orders of review, while Order XLII Rule 1(b), (2), and (8) of the are procedural provisions providing for the

criteria to be followed before grating the application. Several other provisions were cited and relied upon by the applicant as enabling provisions, but I will not concentrate on those provisions in this ruling. Order XLII Rule 1(b) of the CPC (supra) provides the following ingredients of review; - 12 1. That the applicant must allege and prove that after the decision sought to be reviewed had been issued, he discovered the new and important matter or evidence, 2. That the discovered matter, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or 3. That the decision was made on account of some mistake or error apparent on the face of the record, or 4. That for any other sufficient reason, he desires to obtain a review of the decree passed or order made against him, 5. That the application should be made to the court which passed the decree or made the order sought to be reviewed. The decision of the Court of Appeal of Kenya in National Bank of Kenya Ltd vs Ndungu Njau, [1996] KLR 469 (CAK) at Page 381, provides us with a persuasive guide on the circumstances under which a review may be granted. The Court had this to say; “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error 13 or

omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of the law. Misconstruing a statute or other provision of law cannot be a ground for review” Also, See Halmashauri Kijiji Cha Vilima Vitatu & Another vs Udaghwenga Bayay & Others (Civil Application No. 16 of 2013) [2016] TZCA 573 (18 October 2016) and of Oswald Masatu Mwizarubi versus Tanzania Fish Processors Limited, Civil Review Application No. 05 of 2013. In the latter case, the Court of Appeal of Tanzania elaborated on what constitutes an error on the face of the record. The Court had this to say; “An error apparent on the face of the record must be such as can be seen by one who writes and reads, that is, an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions." Similarly, in Nyamogo & Nyamogo Advocates v. Kago [2001] 2 EA 173 defined an error apparent on the face record, thus: 14 “An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its

very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error that has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal” Reading carefully the affidavit supporting the application at hand and submission by learned counsel for the applicant, the key message is that the ruling/order of this court was made on account of some mistake or error apparent on the face of the record. The record of the court shows clearly 15 what transpired in court on 28/07/2021 when the application came for hearing before Kilekamajenga J. On that date, the applicant enjoyed the service of Mr. Mathias Rweyemamu, learned counsel while the respondents enjoyed the service of

Mr. Lameck Erasto whereby both advocates informed the court that they were ready for the hearing. Fortunately; the said advocates are still the same in this application. The record further revealed that when Mr. Mathias Rweyemamu took the floor, he addressed the court on the validity of the Will only, and stated as follows; “My Lord under the Law, spouses of the deceased must sign the Will. The first wife was not divorced and it was therefore compulsory for the 1st wife to sign the Will. Also, the Will in question is forged. The deceased’s name appears on the first page but the name does not appear on the next pages. The maker of the Will must endorse on the bottom of the Will. The Will was not signed by the competent witnesses. The alleged Will needs to be checked again. We pray for leave to approach the Court of Appeal” When invited to make his reply, Mr. Lameck Erasto confined his reply to the submission made by Mr. Mathias Rweyemamu. Mr. Lameck Erasto submitted as follows; 16 “My Lord, the failure for the deceased’s wife to sign had no any legal effect. The wife to sign the Will was supposed to be the wife living with the deceased. The alleged wife was not living with the deceased. So far, the first wife was not even a legal wife because the deceased constructed a Christian marriage. Also, the testator signed on every page of the Will. The law does not require the testator

to sign on the bottom of the Will. My Lord, the witnesses to the Will, were competent. Based on those reasons, Will was valid and there is no point of law to be certified by the court” Thereafter, Mr. Mathias made a brief rejoinder as follows; “My Lord, the witnesses must witness the signature of the testator. The witnesses did not witness the signature of the testator. The will is not valid under the law. We urge the Court to allow the application” As per the record, the hearing ended there, and the Court delivered its ruling on the same date and it dismissed the application on the ground that there was no point of law to be certified to the Court of Appeal for consideration. The record read; 17 “Ruling delivered this 28/07/2021 in the presence of the applicant and his counsel Mr. Mathias Rweyemamu. The first respondent and her Counsel, Mr. Lameck Erasto were also present” In the ruling, it was disclosed that Mr. Mathias Rweyemamu for the Applicant submitted on one point only. Part of the ruling reads,” During the submission, Mr. Mathias Rweyemamu for the Applicant dropped all points and remained with one point” It appears that before the commencement of the hearing, Mr. Rweyemamu, advocate for the applicant did not pray to withdraw or abandon the other five points of law and remained with one point only, but the ruling of the court revealed that he silently abandoned the rest

of the points of law and argued one point on the validity of the Will. It is trite that failure to submit on points of law sought to be certified to the Court of Appeal is tantamount to an abandonment of the same. In James Kiiza vs Abela Ntamba (Civil Application No. 13/04 of 2023) [2024] TZCA 223 (22 March 2024) Tanzlii, there was an argument on whether abandonment of a ground of appeal by a party followed by the endorsement by the court towards such abandonment is an illegality in the impugned 18 decision. The Court ruled out that the endorsement that the grounds have been abandoned does not constitute an illegality. Guided by the above authority, this court finds that the ruling indicating that during submission, the applicant’s advocate abandoned the points of law and argued only one does not constitute an error on the face of the record capable of being reviewed. Indeed, the ruling and the proceedings are not at variance because Mr. Mathias Rweyemamu made his submission in chief and rejoinder submission on the validity of the Will only. Had he submitted on other five points of law, we would have said the ruling was made on account of some mistake. Despite the abandonment of the points of law, the Hon. Judge indicated in the ruling he had gone through the file of this court and the decisions of the lower courts and found no point of law to certify to the Court of Appeal

of Tanzania. In Dorina N. Mkumwa vs Edwin David Hamis (Civil Appeal No. 53 of 2017) [2018] TZCA 221 (11 October 2018) Tanzlii the Court held that "Therefore, when the High Court receives an application to certify a point of law, we expect the ruling to show serious evaluation of the question of whether what is proposed as a point of law is worth to be certified to the 19 Court of Appeal. This Court does not expect the certifying High Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes as a point of law to be perfunctorily forwarded to the court as a point of law" The Hon. Judge concluded that there was no point worth of being certified to the Court of Appeal. However, Paragraph 16 of the affidavit supporting the application seeks to challenge the decision arrived at by the Hon. Judge after going through the case file of this court and the lower courts. The decision arrived at was to the effect that there was no point worthy of being referred to the Court of Appeal for consideration. It should be noted that, as a matter of law, a review should not seek to challenge the merits of a decision but rather irregularities in the process of the decision. Indeed, an application for review is not an appeal but it seems that the applicant is inviting the Court to sit on appeal through a back door which I am not prepared to do. Paragraph 15 of the

affidavit supporting this application was aimed to show that this application was filed as per direction from the Court of Appeal, but I have gone through the order of the Court of Appeal in Civil Application No.140/04 of 2023 and found that there was no such direction, thus, I shake hands with Mr. Lameck that paragraph 15 together with submission by 20 learned counsel for the applicant regarding the said paragraph were meant to mislead this court. In the upshot, it is the finding of this Court that this application lacks merit and it is hereby dismissed. Each party shall bear its costs. Dated this 25th day of October, 2024. E. L. NGIGWANA

JUDGE 25/10/2024 21 Delivered this 25th day of October 2024 in the presence of the applicant in person, Hon. A. A. Madulu-JLA, and Mr. Respichius Renatus, B/C but in the absence of the Respondent. E. L. NGIGWANA

JUDGE 25/10/2024 22