marry andrew masuba vs christantus msigwa 2021 tzhc 9409 10 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA MISC. CIVIL APPLICATION NO. 23 OF 2021 (From the Decision of the High Court of Tanzania, at Mbeya in PC. Probate Appeal No. 6 of 2019 and From the District Court of Mbeya, at Mbeya in Probate Appeal No. 1 of 2019, Originated in the Primary Court of Mbeya District, at Mwanjelwa in Probate and Administration Cause No. 20 of 2018) MARRY ANDREW MASUBA.................................................... APPLICANT VERSUS CHRISTANTUS MSIGWA......................................................RESPONDENT RULING Date of last Order: 20.10.2021 Date of Ruling: 10.12.2021 Ebrahim, J. The applicant in this application, MARRY ANDREW MASUBA applied for the following orders; i. That, this honourable court be pleased to Certify that there is point of law involved to appeal to the Court of Appeal of Tanzania (CAT) against the decision of Hon. Ndunguru, J. dated 17th August, 2020. ii. Costs be in the course. Page 1 of 11 iii. Any other order this Honourable Court deem fit to grant. The application is preferred under section 5 (2) (c) of the Appellate Jurisdiction Actz Cap. 141 R.E 2019. It was supported by an affidavit of the applicant herself. The respondent, CHRISTANTUS MSIGWA resisted the application through a counter affidavit sworn by himself. Brief facts giving rise to the case goes as follows; the late Patrick Andrew Masuba (Patrick Masuba) died intestate on 17/10/2017. In 2018 Marry Andrew Masuba (the applicant) petitioned for letters of administration of the estates of the late Patrick Masuba vide Probate and Administration Cause No. 20 of 2018 in Mwanjelwa Primary Court. In her evidence, she told the Primary Court that the late Patrick Masuba neither left surviving wife nor children. She testified that the late Patrick Masuba was married to one Merisiana who was not blessed with any child and she passed away before her husband. The Primary Court granted the letters of administration to her (Marry Masuba). Before Marry Masuba could collect the estate and distribute, Christantus Patrick Masuba (the respondent) appeared before the same Primary Court objecting the appointment of Marry Masuba Page 2 of 11 and prayed for the court to declare him and other two persons as the Children of the late Patrick Masuba. Christantus called four witnesses who gave evidence in his favour and Marry Masuba called two witnesses in her favour. Christantus also prayed for the court to order for DNA test between him and the relatives of the late Patrick Masuba, the court ordered for the letter to be sent to the Chief Government Chemist requesting the same. However, one of the siblings of the late Patrick Masuba (Rogarte Andrew Masuba) refused to be involved on the test. After hearing both sides, the Primary Court revoked Marry Masuba from the position of the administratrix of the estate of the late Patrick Andrew Masuba. It also declared that Christantus and other two person are children of the late Patrick Masuba. The decision aggrieved Marry Masuba. She thus appealed to the District Court. Having heard both parties the District Court defaulted the decision of the Primary Court. It re-instituted Marry Masuba to her office as an administratrix. It also ordered Christantus to follow procedures to be recognised as the child of the late Patrick Masuba. Page 3 of 11 Christantus was dissatisfied by the decision of the District Court. He appealed to this court. Hon. Ndunguru, Judge upon hearing both parties and upon considering all that transpired in the two lower courts, decided that the District Court was proper when it re-instituted Marry Masuba in her position. However, this court defaulted the non-declaration of Christantus to be the child of the late Patrick Masuba. Thus, declared him the child of the late Patrick Masuba as the Marry Masuba was not amosed with the decision. She intends to go to the Court of Appeal to challenge the decision of declaring Christantus as the child of the late Patrick Masuba hence the instant application. At the hearing of the application, the applicant was represented by Mr. William P. Mashoke, learned advocate, while the respondent was represented by Mr. P.Y. Maumba, learned counsel. It was argued by way of written submissions. Counsel for the parties duly filled their submissions. Before I embark on the substance of the application, I feel compelled to firstly settle the legal issue raised by advocate Maumba pertaining to the applicant’s affidavit. He contended that the affidavit offends section 10 of the Oaths and Statutory Page 4 of 11 Declaration Act, Cap. 34 R.E 2019. According to him, the applicant’s affidavit under durat of attestation did not indicate if the commission for oaths knew the deponent personally or he was introduced to him by another person. Mr. Mashoke responded to the legal issue that failure to cross by pen the word ‘known to me personally’ does not make the affidavit incompetent and it is curable under the overriding objective. The base of the legal issue is the durat of attestation as appearing to the applicant’s affidavit. It is couched in this way: “SWORN at MBEYA by the said MARRY ANDREW MASUBA who is Known to me personally/identified to me by EZEKIEL KALIBOTI the latter being known to me Personally in my presence this 6th day of July, 2021" The respondent’s counsel intends this court to rule out that the applicant’s affidavit is defective just because there is a missing line cancelling either the phrase ‘known to me personally’ or 'identified to me’. I cannot apply a lot of energy in this so-called legal issue. I may not even assume, but I am quite sure that the Page 5 of 11 commission for oaths forgot to cross the phrase “known to me personally’’. This is because it is clear that he identified MARRY ANDREW MASUBA through EZEKIEL KALIBOTI, and the latter was known to him personally. Therefore, the alleged offended section does not apply on such a minor slip of the pen. I thus, overrule the legal issue. Now, this court is called upon to determine one question of whether the applicant demonstrates point at law worth certifying for consideration by the Court of Appeal. It is the requirement of law, section 5 (2) (c) of CAP. 141 RE 2019 of the Appellate Court Act that applications for certification on a point of law is premised on the fact that the Court of Appeal should deal with matters which are distilled and found to be of mighty importance and sufficient to engross the learned Justices’ mind. See also the observation by the CAT in the case of Dorina N. Mkumwa v. Edwin David Hamis, Civil Appeal No. 53 of 2007 [2018] TZCA 221; (TanzLii) where it was observed that: "... when High Court receives applications to certify point of law; we expect Rulings showing serious evaluation of the question whether what is proposed Page 6 of 11 os a point of law, is worth to be certified to the Court of Appeal....” In the instant application, the point of law proposed is found under paragraph 6 (a) of the applicant’s affidavit as follows: “That there is some illegalities and irregularities (Point of laws)(sic) to be determined by the Court of Appeal of Tanzania. a) The respondent had no locus stand(sic)” Supporting the application, counsel for the applicant submitted that the respondent and two other persons were declared children of the late Patrick Andrew Masuba without following procedure under Customary (Declaration) Orders Rules 181 (B) G.N. Nos 279 of 1963. According to her there is a procedure in recognizing a child born out of wedlock. He contended that there was no enough evidence showing that the respondent was the child of the late Patrick. He further contended that there were discrepancies in the names of the respondent i.e KRISTANDUS MASUBA and KRISTANTUS MSIGWA which were not reconciled by Deed Poll or Affidavit. Page 7 of 11 Replying against the application, Mr. Maumba contended that there is no any point of law worth to be certified by this court. Regarding the issue of locus standi Mr. Maumba argued that since the respondent was able to prove that he and other two persons were children of the late Patrick Masuba, the respondent showed interest in the estate hence it cannot be said that he had no locus standi. Mr. Maumba also responded to the issue of discrepancy of names that the same was not raised at any stage in the lower court and to this court during second appeal. He contended that the Court of Appeal cannot be called to decide on the issue of names if Kristantus Msigwa and Kristantus Masuba are referring to the same person. In his rejoinder submission, Mr. Mashoke insisted that there is a point of law worth for determination by the Court of Appeal of since there was no ample evidence to prove that the respondent was the child of the late Patrick Masuba. Having read and grasped what the applicant and her counsel tried to point out as a point of law; it is clear that they still want to call upon the Court of Appeal to determine whether Page 8 of 11 there was sufficient evidence warranting the declaration of the respondent as the child of the late Patrick Masuba. In the case of Agnes Severini v. Mussa Mdoe [1989] TLR 164, the Court of Appeal held as follows: "We wish to observe at the outset that this was an unsatisfactory way of certifying a point of law. That certificate is capable of two interpretations. It could mean posing the question whether there was any evidence at all to support the concurrent decisions of the courts below. It could equally mean to ask the question whether the evidence as adduced was sufficient to support and justify those decisions. How, this distinction is imported. The question whether there was any evidence at all to support the decision is a question of law which can properly be certified for the opinion of this court. But whether the evidence as adduced was sufficient to support the decision is a question of fact which could not properly be the subject of a certificate for the opinion of this court. For this, court takes the view that if there was some Page 9 of 11 evidence on which the courts below could have arrived at the decision they did, then this court will not interfere, even though had this court itself tried the case it might have come to a different decision. Those who are called upon to certify points of law should, therefore, keep this distinction in mind in order to ensure that only the correct questions are certified for the opinion of this court.” (emphasis added). Looking at the above observation, it means that this court can certify a point of law if the applicant is claiming that there was no any evidence at all to support decisions of the courts below. But it cannot do so wheres he is claiming that the evidence adduced was insufficient to support and justify those decisions. In the instant application, the applicant is claiming that there was no ample evidence adduced by the respondent to prove that Patrick Masuba was his father. He is not complaining that the respondent did not adduce any evidence to prove the same. Nevertheless, the applicant’s counsel without elaboration contended that the recognition of the respondent did not follow Page 10 of 11 the procedure under Customary (Declaration) Orders Rules. He raised the same query before this court in the second appeal and the presiding judge took much time to make a decision on it. It cannot thus be dealt and considered by the Court of Appeal. All there is, in my considered view, do not form a point of law worth certified for consideration by the Court of Appeal. With the above analysis I dismiss the application for want of merits with costs. Ordered accordingly. Page 11 of 11 Date: 10.12.2021. Coram: P. D. Ntumo - PRM, Ag-DR. Applicant: Present For the Applicant: Mr. William Mashoke, Advocate. Respondent: Present. For the Respondent: Absent. B/C: Patrick Nundwe. Court: Ruling delivered in open chambers in the presence of the Parties and Mr. William Mashoke, learned counsel for the applicant this 10th day of December 2021. P.D. Ntumo - PRM Ag- Deputy Registrar 10/12/2021