masengwa lifa v mabete masele ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA MISC. CIVIL APPLICATION NO. 27693 OF 2023 (Originating from the judgment of the High Court of Tanzania at Shinyanga (Hon. F.M. Mahimbali, J) in PC. Civil Appeal No. 59 of 2023 dated 13 th November, 2023). MASENG’WA LIFA ……………….……………...…………………………APPLICANT VERSUS MABETE MASELE…………………………...……………….……..…… RESPONDENT . RULING Date of Last Order 11.06.2024 Date of Ruling: 09.08.2024 MWAKAHESYA, J.: This is an application for a certificate on a point of law made by the applicant, Maseng’wa Lifa. It has been made under section 5(2)(c) of the Appellate Jurisdiction Act, and is brought by way of chamber summons and is supported by the affidavit of Mr. Frank Samwel, advocate for the applicant. The applicant has brought this application being aggrieved with the judgment of this court, Hon. Mahimbali, J, in PC. Civil Appeal No. 59 of 2023 and now seeks audience of the Court of Appeal. The respondent, in an effort to resist the application, filed a counter affidavit sworn by himself. However, the order of the court 1 granting leave to file the counter affidavit was that the same was to be filed on or before 04.03.2024 and in defiance of the order the respondent filed his counter affidavit on 06.03.2024. Thus, the same was struck out from the records of the court and the application, therefore, stood uncontested. The myriad of events leading to the present application are that, the respondent was the husband of one Holo d/o Madito who passed away intestate, the applicant, the son of the deceased, was then appointed administrator of the estate by the Isung’anholo Primary Court (Probate Cause No. 4 of 2013). This led the respondent to appeal to the Shinyanga District Court (Probate Appeal No. 4 of 2014) which was decided ex parte in favour of the respondent and the District Court appointed him as the administrator of the estate of the late Holo d/o Madito, thus nullifying the appointment of the applicant as administrator of the estate of the late Holo d/o Madito. The decision of the Shinyanga District Court was then challenged by the applicant through Misc. Civil Application No. 2 of 2015 filed at the Kishapu District Court, the applicant attempting to set aside the ex parte judgment. The Kishapu Disctrict Court decided in favour of the applicant, thereby setting aside the ex parte judgment of 15.07.2015. 2 Probate Appeal No. 4 of 2014 having been restored (at the Kishapu District Court) was erroneously registered as Probate Administration Cause No. 1 of 2015 and was decided on 5.01.2016 in favour of the respondent. It nullified the appointment of the applicant as the administrator of the estate of the late Holo d/o Madito and appointed the respondent as the administrator and went further to divide the deceased’s estate. Following the decision of the District Court of Kishapu at Kishapu in Probate Administration Cause No. 1 of 2015, the respondent filed revision proceedings through Misc. Civil Application No. 19 of 2021 in the High Court (Shinyanga District Registry) seeking the High Court to declare Probate Cause No.1 of 2015 res judicata and to restore Probate Appeal No. 4 of 2014 of the Shinyanga District Court that appointed him as the administrator of the estate of the late Holo d/o Madito. The High Court decided that, if the respondent was aggrieved with Probate Administration No. 1 of 2015 decided by the Kishapu District Court, then the most he could do was to challenge it through appeal, thus dismissing the application for revision. Undeterred, the respondent filed PC. Civil Appeal No. 59 of 2023 at the High Court (Shinyanga District Registry). The High Court nullified Misc. Civil Application No. 2 of 2015 filed at the Kishapu District Court 3 and also nullified Probate Cause No. 1 of 2015 also filed at the Kishapu District Court. The ex parte judgment in Probate Appeal No. 4 of 2014 by the Shinyanga District Court was thereby restored. The decision of this court in PC. Civil Appeal No. 59 of 2023 is what has prompted the applicant to apply for a certificate on a point of law in order to appeal to the Court of Appeal. On the date set for hearing, the applicant was represented by learned advocate Frank Samwel, while the respondent appeared in person, unrepresented, but as alluded earlier, the respondent having filed his counter affidavit out of time without leave of the court meant that the hearing proceeded uncontested. Mr. Samwel, after making a prayer that his affidavit in support of the application be adopted and form part of the record, submitted that the points made in paragraph 5 of his affidavit, save for the fourth point which he prayed to abandon, be certified as points of law for determination by the Court of Appeal. For ease of reference I shall reproduce paragraph 5 of his affidavit: “That, the applicant in this application is intending to appeal to the court of appeal to challenge the judgment for PC. CIVIL APPEAL No. 59 of 2023 on the points of law as follows: - 4 i. That, the learned Judge erred in law to entertain Msc. Civil Application No. 2/2023 for extension of time to file an appeal against Probate and Administration Cause No. 1 of 2015 of Kishapu District Court while the respondent had filed Revision No. 19/2021 against the same case before the same court on merit. ii. That, the learned Judge erred in law to entertain Msc. Civil Application No. 2/2023 for extension of time to file an appeal against Probate and Administration Cause No. 1 of 2015 of Kishapu District Court while the respondent had filed Revision No. 19/2021 which was denied by the same court on merit before Kurita, J. and the respondent had filed the notice of appeal to appeal to the Court of Appeal which is tantamount to saying that the High Court of Tanzania had no jurisdiction to entertain the application. iii. That, the learned Judge erred in law to entertain PC. Civil Appeal No. 59 of 2023 while the court had no jurisdiction to entertain the same due to the notice of appeal to the court of appeal which was in existence. iv. That, the learned Judge erred in law and facts for holding that the appeal before the Kishapu District Court was filed by the appellant but subsequent appeal thereafter was preferred by the respondent, contrary to the records of the court and therefore the judgment violated the rules of natural justice.” As stated, the learned counsel for the applicant withdrew paragraph 5(iv), thus the gist of the applicant’s application is restricted to paragraph 5 (i) – (iii). This matter having originated in the Primary Court (Isung’anholo Primary Court) the dictates of the law as per section 5(2)(c) of the Appellate Jurisdiction Act is that this court must certify that there is a 5 point(s) of law involved which needs determination by the Court of Appeal. The practice being for this court to frame such point(s) or to approve and adopt ones framed by the applicant (see: Harban Haji Mosi and Another v. Omari Hilal Seif and Another [2001] T.L.R. 409). Having gone through the records and the submission of the applicant, I have failed to see any point of law worthy of determination by the Court of Appeal. I find so due to the following: First, in Misc. Civil Application No. 19 of 2021 (referred to by the applicant as Revision No. 19 of 2021) the High Court decided that, if the respondent was aggrieved with Probate Administration No. 1 of 2015 decided by the Kishapu District Court, then he should challenge it through an appeal and not by revision. This prompted the respondent, as he was already out of time to file an appeal, to file Misc. Civil Application No. 2 of 2023 for extension of time. There is nothing un-procedural from the respondent’s approach. Second; the ruling in Revision No. 19 of 2021 was delivered on 17.08.2022, the ruling in Misc. Civil Application No. 2 of 2023 was delivered on 20.07.2023, and the judgment in PC Civil Appeal No. 59 of 2023 was delivered on 13.11.2023 while the notice of appeal was lodged on 11.12.2023. Thus, in that chronology the notice of appeal was the latest in time. It is unpalatable when the applicant’s advocate, 6 on oath, states that the said applications and appeal were entertained while there was a notice of appeal to the Court of Appeal in existence. The averments made in paragraph 5 (ii) and (iii) of the affidavit of learned advocate Frank Samwel, in support of this application, are untruthful and I am tempted to conclude that they are aimed at misleading this court and pervert justice. Therefore, I find that the proposed points of law contained in paragraph 5 of the applicant’s affidavit do not qualify to be points of law and neither do I find anything, in this matter, to suggest that there is a point of law to be framed by this court for consideration by the Court of Appeal. In light of the above, this application is dismissed. Considering the respondent’s conduct, I make no order as to costs. It is so ordered. N.L. MWAKAHESYA JUDGE 09/08/2024 7