paschal bayonaadminitrator of the estate of the late bayona mlatwa vs faustin kyaruzi 2021 tzhc 5950 31 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA DISTRICT REGISTRY AT BUKOBA LAND APPLICATION NO. 33 OF 2019 (Arising from Miscellaneous Civil Application No. 2 of 2017, and Civil Application No. 8 of 2016, Civil Appeal No 116 of 1987 of Bukoba District Court, Original Matrimonial (PC) Civil case No.l of 1987 of Ibwera Primary Court) PASCAL BAYONA (Administrator of the Estate of the Late Bayona Mlatwa)................. APPLICANT VERSUS FAUSTIN KYARUZI.......................................... RESPONDENT RULING 05 & 20 /08/2021 & 31/08 /2021 NGIGWANA, J The applicant lodged the application seeking for certification of a point of law so as to appeal to the Court of Appeal of Tanzania. The application was made by way of chamber summons under section 5(2) (c) of the Appellate Jurisdiction Act, Cap 141 R: E 2019. The application is accompanied with the affidavit deposed by the applicant. In the application paragraph 5 of the applicant's affidavit carries two points of law in which the applicant urged to certify and were coached as follows; i (a) Whether there were sufficient and good cause and the High Court exercised its powers judiciously in denying the applicant extension of time to file an appeal. (b) Whether the points of illegalities of the decision of the courts below raised by the applicant did not justify extension of time to file an appeal. The chamber summons and affidavit were drawn and filed by Mr. Joseph Bitakatwe, learned advocate therefore, he was fully aware of how the points of law for certification are ought to appear. The respondent upon being served with the chamber summons, filed the courter affidavit opposing the application. The decision giving raise to this application arose from Civil Application No. 2 of 2017 and Civil Application No. 8 of 2016 both of the High Court Bukoba Registry. In Application No. 8 of 2016, the applicant sought extension of time to file an appeal against the judgment of Bukoba District Court Civil Appeal No. 116 of 1987 delivered on 20th day of November, 2014. The said application was dismissed because the court (Matogolo J) found that the applicant has failed to demonstrate reasons which were beyond his control which hindered him to appear before the first appellate court on the date of hearing as well as on the date of judgment and for him to fail to appeal in time. The applicant was aggrieved by that decision whereas on 13/12/2016 he lodged a notice of Appeal to the High Court. From there the applicant applied and obtained extension of time to file an application for certificate on point of law to be determined by the Court of Appeal, hence this application. 2 As a general rule matter originating in primary courts end in the High Court. See section 5 (2) (c) of the Appellate Jurisdiction Act Cap 141 R:E 2019. If a litigant wishes to appeal to the Court of Appeal, the High Court must certify that there is a point of law. The reason behind was given in the case of Vuai Ali Vuai versus Suwedi Mzee Suwedi [2004] TLR 110 where the Court of Appeal held that "The purpose of a certificate for the class of appeals originating in the primary courts was to ensure that deserving cases only reached the Court of Appeal. The exercise is therefore a screening process which would leave for the attention of the court only those matters of legal importance and public importancd'. See also the cases of Eustace Kubalyenda versus Venancia Daud, Civil Appeal No. 70 of 2011 and Elly Peter Sanya versus Ester Nelson, Civil Application No. 3 of 2015 When the application was called for hearing, the applicant was represented by the learned advocate Mr. Joseph Bitakatwe, while the respondent appeared in person and unrepresented. Mr. Bitakatwe adopted the affidavit and relied under the provision under which this application was brought insisting that the matter originated in the primary court and the applicant wishes to appeal to the Court of Appeal therefore, the High Court must certify that there is a point of law. Section 5 (2) (c) of the Appellate Jurisdiction Act, Cap 141 R: E 2019 provides; "Notwithstanding the provisions of subsection (1)- 3 (c) no appeal shall He 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." Having seen that legal requirement, the issue now is to determine whether under the circumstances of this application, certification on point of law was the remedy available to the applicant. The provisions under which this application was brought covers the party who wants to go for the third appeal, meaning the matter was decided on merit in the primary court, then appealed to the district court and eventually in the High court. In this application, the situation is different because Civil Application No.8/2016 was brought in this court in the first instance. The same was dismissed for failure to demonstrate sufficient cause. It has to be very clear that in that application the High Court was not exercising appellate or revisional jurisdiction over the merit on the decision of Bukoba District Court in respect of Civil Appeal No. 116 of 1987 originating from Matrimonial (PC) Civil Case No. 1 of 1987, but rather it was a new application to the High Court. The said application for extension of time was not originating under Part III Head (c) of the Magistrates' Courts Act Cap 11 R: E 2019 which provides; "Appellate and Revisional Jurisdiction of the High Court in Relation to Matters Originating in Primary Courts" In that premise, the provision of section 5 (2) (c) which require certification on point of law is irrelevant and uncalled for. The applicant ought to have 4 applied for leave to appeal to the court of the appeal. See the case of Haruna Kahinga versus Editha Peter, Misc. Civil Application No.42 of 2020 Bukoba HC (Unreported) In the event, the application is hereby struck for being incompetent. I make no order as to costs. It is so ordered Dated at Bukoba this 31st day of August, 2021. Ruling delivered this 31st day of August, 2021 in the presence of both applicant and respondent and in the presence of Mr. E.M. Kamaleki, 5