Rehema Ally Kaduduye v Adamu Ally Lwazionda JGT

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 000005727 OF 2024 REHEMA AHMAD KADUDUYR .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ADAMU ALLY LWAZIONDA .............................. RESPONDENT / DEFENDANT RULING P. R. KAHYOZA, J, The Applicant, Rehema Ahmad Kaduduye is seeking to move this court to certify that there is a point of law worth to be considered by the Court of Appeal. The Applicant intends to challenge the decision of this court in PC Probate Appeal No. 01 of 2023 issued on 09th February, 2024. The application has been made under Rules 45(a) and 46(1) of the Court of Appeal Rules, 2009. On the other hand, the application is resisted by the Respondent who has filed a counter affidavit to that effect. A brief background shows that it all started when the Respondent was appointed as an administrator of the estate of the late Zainabu Rutungulu, who passed away some time in 2020. Following that death, the Respondent was appointed administrator of the estate of the late Zainabu Rutungulu by the Ujiji Primary Court in Probate Cause No.43 of 2020. It would appear the Applicant was not comfortable with this appointment. He unsuccessfully challenged it before the District Court of Kigoma in Probate Appeal No. 11 of 2022). Still dissatisfied, he appealed to this court in PC Probate Appeal No. 01 of 2023. But he once again lost the appeal. He now wishes to appeal to the Court of Appeal subject to this court certifying that there is a point of law meriting consideration by the Court. At the hearing, both the Applicant and the Respondent were very brief, probably because they were unrepresented. On his part, the Applicant through Mr. Kahambi Shimiye, holding power of attorney, submitted that it was important for the application to be granted because the administrator was appointed contrary to law. On the other hand, the Respondent prayed that the application be dismissed as there was nothing to fault as far as the decision of this court was concerned. But before I address myself on the merit or otherwise of the application before me, I found it pertinent to make one vital observation relating to the competency of the application. According to my observation, the affidavit supporting the chamber summons is fatally defective for containing extraneous matters including arguments and conclusions. Page. 1 As I pointed above, almost all the paragraphs of the affidavit supporting the application contain arguments and conclusions contrary to the law governing affidavits, notably, Order XIX Rule 3 (1). May be paragraph four of the said affidavit can illustrate this by painting the picture itself: “That, in the court of first instance, the Applicant, dispute of bringing basic arguments that, why did the respondent and his witnesses fail to bring supporting documents? If indeed they sent the meeting invitation of the appointment of the administrator of the estate of the applicant and the Applicant refused? If the Respondent and his group had good intentions, why should the house be sold by someone else who is not the administrator (the Respondent)? Why should the money be given to someone who is not the administrator? Why is the court until today not informed of the amount of money sold for the house? Why, since the house has been sold and the distribution has been made the inheritance has not been closed? If there are funds rejected by the heir No.1 (the Applicant) why were they not taken to court or opened in a bank account? Are the Respondent and his group legally still righteous for such action? The Applicant saw that the Primary Court not want to provide solutions to these arguments.” I think the above excerpt says it all and I believe the Applicant sees the wrings on the wall. It contains arguments and conclusions thus offending the law governing affidavits. According to the law, affidavits must be confined to facts and must be free from extraneous matters. See Jacquiline Ntuyabaliwe Mengi & Others vs Abdiel Reginarld Mengi & Others (Civil Application 332 of 2021) [2021] TZCA 748 (1 December 2022). Based on the excerpt above, it is apparent that the supporting affidavit is defective, thus rendering the application incompetent. As a matter of practice, offensive paragraphs in an affidavit can be expunged leaving the substantive parts of the affidavit for the court to consider. See. Jacquiline Ntuyabaliwe Mengi & Others vs Abdiel Reginarld Mengi & Others (Supra) and Chavda & Company Advocates vs Arunaben Chaggan Chhita Mistry and 2 Others (Civil Application No. 25 of 2013) [2017] TZCA 154 (22 May 2017). But in the matter at hand, almost all the paragraphs contain extraneous matters. This means if they are expunged out, the entire affidavit will almost be gone thereby leaving the application with no legs upon which to stand. In such circumstances the sole remedy is for the court to strike out the application. In the same manner, and given what I have explained above it goes without saying that this application is incompetent and is bound to be struck out. Although the above ground suffices to dispose of the matter, I find it proper and for the sake of completeness, to also test whether the application has merit or otherwise. The points for consideration and certification are set out in paragraph 14 of the supporting affidavit. They are reproduced here below: 1. That, the Primary Court, District Court as well as the High Court erred in law and fact of favoring the respondent by believing very weak evidence by the respondent with his witnesses in which they claimed to invite the Applicant to attend the family meeting without giving any document to confirm this invitation as required by law doctrine. 2. That, whether in law and in fact, the doctrine of the invitations of family meeting to appoint the administrator/administratrix is unnecessarily to invite the heir chief considering that there are only two heirs. Page. 2 3. That, the Hon. Judge erred in law and in fact by continuing to bless the administration the one who lied to the court because, the signs are clear, since the Respondent has been given the administration in 2020, there is no record that shows the allocation nor closing the inheritance, until today, the Respondent hidden the amount of money the house was sold for, even the court does not know. In addition, the Respondent to claiming that, the one who sold the house and deposited the money is another person, but still did not name that person and neither was the buyer named. 4. That, the Hon Judge erred in law and fact by remaining silent on the ground for the Applicant’s appeal, his right to peruse the file before he appealed and was denied, rejection of the representation of Kahambi Idd Shimiye by the District magistrate. 5. That, the other details will be explained more when the appeal is heard. As it turns out to be and as far as the record can bear me out, points number 1, 3 and 4 are to say the least the intended grounds of appeal. Over and above, they are solely based on factual matters. They present no legal points worth certification by the Court of Appeal. As such, this court cannot certify on such matters. As for the second point, I wish to point out that there is no such doctrine known as the doctrine of the invitations of the family meeting. But even assuming that there was such a doctrine, yet there is nothing to certify about this point because the Applicant’s complaint on this point is based on facts. His major complaint on this point is that there was no evidence to show that he was invited to the family meeting but he refused. This is reflected in paragraph 4 of the Applicant’s affidavit. As such, this this too cannot be certified as a point of law by this court. At this juncture, I wish to point out that the legislature purposely put in place these checks to ensure that certain litigation comes to an end within given levels unless some legal points are certified for consideration by higher tiers. For matters originating from primary courts the high court is the final court unless it certifies to the Court of Appeal that there are legal points for its consideration. The Court of Appeal has times without number emphasized the importance of taking seriously matters involving certification on points of law, especially when such matters involve delicate cases such as land cases, and if I may add, even probate cases such as the present one. In Dorina N. Mkumwa vs Edwin David Hamis (Civil Appeal No. 53 of 2017) [2018] TZCA 221 (11 October 2018), reported at Tanzlii, the Court of Appeal clearly stated; “When High Court receives applications to certify point of law, we expect Rulings showing serious evaluation of the question whether what is proposed as a point of law, is worth to be certified to the 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 point of law to be perfunctorily forwarded to the Court as point of law”. (Emphasis supplied). Now, as I stated earlier, all the points proposed by the Applicant to be certified by this court as points of law, are not issues of law at all. They are all based on factual matters. As such they cannot be certified as points of law to the Court of Appeal. Doing so would amount to reducing this court into uncritical conduit allowing whatever is proposed by the Applicant to be forwarded to the Court of Appeal without critical scrutiny. Page. 3 It is from the foregoing I find and hold that the Applicant has not raised any point this court can certify as a point of law worth consideration by the Court of Appeal. Consequently therefore, this application is bound to be dismissed and I proceed to dismissed it with costs to the Respondent. I so order. Dated at KIGOMA ZONE this 22nd of October 2024. P. R. KAHYOZA, J JUDGE OF THE HIGH COURT Page. 4