mwajuma abdallah ngwallah 8 others vs kelvin mutatina administrator of the estate of the late athumani bashir 2023 tzhc 22756 10 november 2023

Page 1 of 6 IN THE HIGH COURT OF TANZANIA MWANZA SUB-REGISTRY AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO. 98 OF 2023 (Arising from Civii Appeal No. 86 o f2022 in the High Court o f Tanzania at Mwanza, originating from PC Probate Cause No. 23 o f2020 in the District Court o f Nyamagana: Originating from Probate Case No. 34 o f1993 in the Primary Court o f Mwanza Urban) MWAJUMA ABDALLAH NG'WALLAH......................... 1st APPLICANT MARIAMU ATHUMANI BASHIR............................... 2nd APPLICANT ZULEKHA ATHUMANI BASHIR................................ 3rd APPLICANT BASHIRAIN ATHUMANI BASHIR.............................4th APPLICANT YUSUFU ATHUMANI BASHIR.................................. 5th APPLICANT LIYUTHA ATHUMANI BASHIR................................. 6th APPLICANT ABDALLAH ATHUMANI BASHIR.............................. 7thAPPLICANT ABDULRAHMAN HUSSEIN SALUM............................8thAPPLICANT SAID ADAM ATHUMANI BASHIR..............................9thAPPLICANT VERSUS KELVIN MUTATINA {administrator of the estate of the late ATHUMANI BASHIR).................... RESPONDENT RULING Date of last order: 7th November 2023 Date of Ruling: 10th November 2023 MTEMBWA, J.: Under section 5(2) (c) o f the Appellate Jurisdiction Act, Cap 141, [RE 20197, the Applicants are seeking for a certificate on point of law against the decision of this Honourable Court (Hon. Kilekamajenga, J) in PC Civil Appeal No. 86 of 2022 dated 24th May Page 2 o f 6 2023. The Application has been supported by an affidavit of Mr. Emmanuel John, learned advocate for the Applicants. From the facts, the Primary Court of Mwanza urban in Probate Cause No. 34 of 1993 appointed the Respondent to be the administrator of the estate of the late Athumani Bushiri. The Applicants, it could appear, were not pleased with such appointment as such, they objected through PC Probate Appeal No. 23 of 2020 in the District Court of Nyamagana. On 20th August 2021, the appointment was confirmed and the appeal was dismissed for lack of merits. Through PC Civil Appeal No. 86 of 2022, the Applicants filed an appeal to this Court. It could appear also that the appeal was adjourned several times. From the records, parties appeared for the first time before Hon. Deputy Registrar on 29th November 2022. The matter then proceeded to be presided over by Hon. Kilekamajenga, J and it was called for before him for five times. When it was called for before him for the sixth time on 24th May 2023, it was dismissed for want of prosecution. The appeal therefore was not heard on merit. When I was composing the Ruling, I noted that the Applicants are seeking for a certificate on point of law on the dismissal order of this Court dated 24th May 2023 where the said Appeal was dismissed for want of prosecution. Consequently, I called the parties to appear and address this Court on whether this Court has jurisdiction to grant what has been requested for. Page 3 o f 6 Addressing me on the issue, Mr. Emmanuel John, Advocate for the Applicants, submitted that the Application has been so brought because it is a requirement under section 5(2) (c) o f the Appellate Jurisdiction Act (supra) that no decision shall lie against the order of the High court of any proceedings under head (c) of Part III of the Magistrate Court Act unless a certificate on point of law has been thought first. He was of the views that this Court has mandate and jurisdiction to entertain the Application. On his part, Mr. Mutatina submitted that the subject matter of this Application is the dismissal order of Hon. Kilekamajenga, J. dated 24th May 2023 and that since the matter was not heard on merit, this Application is misconceived. He prayed that the Application be dismissed. Having heard the rival arguments by the parties, it is pertinent that I determine whether this Court has jurisdiction to issue the requested orders. Section 5(2)(c) o f the Appellate Jurisdiction Act provides as follows; (2) Notwithstanding the provisions o f subsection (1) (a)N/A (b)N/A (c) no appeal shall He against any decision or order o f the High Court in any proceedings under Head (c) o f Part III o f the Magistrates' Courts Act unless the High Court certifies that a point o f law is involved in the decision or order; (d)N/A From the above quotation, I agree with Mr. Emmanuel that 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 Page 4 o f 6 unless this Honourable Court certifies that a point of law is involved. Head (c) o f Part III o f the Magistrate Court Act provides for appellate and revisional jurisdiction of the High Court in relation to matters originating from primary courts. It is applied therefore when the High Court is in exercise of its appellate or revisional jurisdiction. According to section 25 (b) o f the Magistrate Courts Act, if a party is aggrieved by the decision or order of a district court in the exercise of its appellate or revisional jurisdiction may, within thirty days after the date of the decision or order, appeal there from to the High Court; and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired. Having filed the appeal, section 29 (a), (b) and (c) o f the Act is of helpful. It provides for powers of the High Court in exercise of its appellate jurisdiction. In a simple way of explaining it, the High Court has powers on appeals to order other courts below to certify additional evidence, reverse, confirm, amend or vary any decision appealed against, substitute conviction or sentence, quash any proceedings and to make any order that might have been made by the Court of first instance. Section 32(2) o f the Act provideds for general directions to the High Court having determined the appeal or revision. It provides that; Where the High Court determines any appeal or revises any proceedings under this Part, it shall certify its decision or order to the primary court in which the proceedings originated through the district court, and the primary court Page 5 of 6 shall thereupon make such orders as are conformable to the decision or order o f the High Court and, if necessary, the records shall be amended in accordance therewith. From the above quotation, it is evident that the Court, having heard the appeal (in its appellate powers), it shall then certify its decision or order to the Primary Court which the proceedings originated through the District Court and the Primary Court shall make order confirming the decision of the of the High Court. In view of the above, the question would be whether by dismissing the Appeal on 24th May 2023, the High Court exercised its appellate powers. In my considered opinion the Court did not apply any of the appellate powers under the Act. In such circumstances, in may conviction, the High Court was the Court of first instance in respect to the dismissal order dated 24th May 2023. I say this because, the dismissal order has never been tested by the Courts below. This Court therefore has nothing to certify to the Court of Appeal Tanzania. It must be noted that, a certificate of point of law was meant to allow the Court of appeal of Tanzania to test what has been tested unsuccessfully by the lower courts including the primary court. The High Court therefore must be in exercise of its appellate or revisional jurisdiction. In Eustace Kubalyenda v. Venancia Daud, Civil Application No. 70 o f 2011, the Court said, But it is the High Court only which has been granted exclusive jurisdiction to certify to this Court that a point or Page 6 of 6 points o f taw is or are involved in the impugned decision or order in respect o f proceedings failing under Head (c) of Part III o f the Magistrates' Courts Act, Cap. 11 R.E. 2002 (the MCA). The said provisions o f the MCA deal with the appellate and revisional jurisdiction o f the High Court in matters originating from primary courts. This Court also faced the same situation in Robert Maziba V. Emil Maziba @ Erasto Maziba, Misc. Civil Application No. 102 o f 2023, H C at Mwanza. The court noted that, Much as this application originates from Misc. Civil Application No. 135 o f 2022 and not from the appeal or revision which originates from the primary court, the application is misconceived. I strike it out with costs. Since this Application originates from a dismissal order in PC Civil Appeal Case No. 86 o f 2022 which has never been tested by the lower courts including the District Court of Nyamagana in PC Probate Appeal No. 23 o f 2020 anti Primary Court of Mwanza urban in Probate Cause No. 34 o f 1993, this Application is misplaced. I therefore proceed to strike it out. Since the litigants are related, I make no order as costs. I order accordingly. Right of Appeal fully explained. DATED at MWANZA this 10th November, 2023.