OCR 29141ALLY MOHAMED ALIDINA MISC

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (TEMEKE HIGH COURT SUB - REGISTRY) (ONE STOP JUDICIAL CENTRE) AT TEMEKE MISC. CIVIL APPLICATION NO. 29141 OF 2024 (Originating from the judgement and decree of Temeke High Court Registry One Stop Judicial Centre in PC Civil Appeal No. 17416 of2024). SARA MOHAMED ALIDINA.................................................. 1st APPLICANT BADRUDIN MOHAMED ALIDINA......................................... 2nd APPLICANT VERSUS ALLY MOHAMED ALIDINA (As the administrator of the estate of the Late Sheikh Mohamed Alidina)...................................................... RESPONDENT RULING 13/02/2025 & 25/02/2025 M.MNYUKWA, J. Before me is an application for certification that points of law are involved in the decision of this court for this court to certify points of law worth for determination by the Court of Appeal. The decision for which the certification on points of law is sought to be granted was from PC. Civil Appeal No. 17416 of 2024 arising from Civil Appeal No. 1280 of 2024 at Temeke District Court One Stop Judicial Centre originated from Probate and Administration Cause No. 60 of 2019 at Kariakoo Primary Court. The applicant moved this court by way of chamber summons accompanied by the joint affidavit sworn by the applicants. It was through the application instituted in this court under section 5(2)(c) of the Appellate Jurisdiction Act Cap. 141 R.E 2019, where the applicants preferred the present application. The respondent opposed the application by filling a sworn counter affidavit and the applicant got an opportunity to reply thereto. Through the parties' prayer and by leave of this court, the application was argued by way of written submissions. On their chamber application, the applicants sought the grant of the following prayers: - i. That this honourable court may be pleased to grant a certificate on the point of law to the applicant in the present application in order to appeal to the Court of Appeal of Tanzania , challenging the decision of this Court in PC Civil Appeal No. 17416 of2024 delivered by Hon. G. N. Barthy, J on 11th October 2024 (sic) ii. Any other re/ief(s) which this honourable court may deem fit andjust to grant. During the hearing, the applicants were represented by Mr. Alex Enock learned counsel while the respondent enjoyed the legal services of Mr. Archad Masika. By leave of this court, hearing was conducted by way of written submission. While seeking to adopt the contents of the applicants' affidavit to form part of his submissions, Mr. Enock explained on a settled position of law that it is the requirement for applicant to establish that there is point of law involved on the decision of this court originated from the primary court. In his submissions, the counsel for the applicants faulted the decision of this court for what he claimed that it granted the relief which was not prayed for in the trial court and there is no evidence proving the same. It was his submission that, it was wrong for the two appellate courts to declare the respondent as the owner of the landed property as there was no prayer on the ownership of land. He said that the act of the two appellate courts to legalize sale alleged to be done by the respondent is wrong since disposition of registered land is proved by the certificate of title, and therefore, it was wrong for the appellate courts to validate sale purported to be done by the respondent. He was of the view that, there is a point of law in that aspect which need to be certified for determination by the Court of Appeal. Submitting on the second point of law that need to be certified by this court, it was his submission that the second appellate court failed to consider appellants' submissions since it did not analyse and evaluate them and it failed to give reasons for refusing or accepting parties' arguments which lead to unjust decision, hence miscarriage of justice. He added that the second appellate court did not consider the applicants' amended petition. And, it also misplaced parties' representation. j a With respect to the third point which needs to be certified by this court it was submitted that, it was wrong for the second appellate court to uphold an order for revocation while it made a finding that the issue of Will left by the deceased is not res-judicata. He said that the second appellate court erred for it's failure to direct the two courts below to determine the issue of Will which created Wakf. In regards to the last point which is the fourth point, it was his submissions that the second appellate court upheld the decision of the first appellate court while there was no proof that sale was conducted. He contended that the second appellate court upheld the decision of the first appellate court on the record which was not part of the court record. He thus prayed this court to certify four points of law for them to be determined by the Court of Appeal. Submitting in rebuttal, Mr. Masika adopted the contents of the respondent's counter affidavit to form part of his submissions. He vehemently challenged the applicants' submissions for what he claimed that there is no point of law worth to be certified by this court since the purported points of law raised by the applicants are matters of facts that were already decided by this court. Arguing against the first point of law sought to be certified, it was Mr. Masika's contention that the issue of validity of sale was well determined by the appellate courts and more so, it need evidence to prove the same and therefore, the same fall short of the point of law worth to be determined by the Court of Appeal. Disputing on the second point of certification, it was Mr. Masika's submission that the same is pure factual matters which call for analysis of evidence. He added that, the analysis and evaluation of evidence were well done by the second appellate court. And, it was correct for the second appellate court to refuse to determine new grounds of appeal since the same were not determined by the first appellate court. On the issue of misplacing names of the advocate who represented the parties, he said that the same is a mere error where this court can rectify it on its motion or upon the application of the parties as it is provided for under section 96 of the Civil Procedure Code, Cap 33 R.E 2019. Contesting on the third and fourth points of law that need to be certified by this court, it was the respondent's counsel argument that the issue of Will was well decided since the applicants' submissions based on mere personal opinion. On the otherhand he submitted that the findings of the two appellate courts were based on the pleadings and ■ M parties' submissions. Therefore, there is nothing to be certified to the Court of Appeal as points of law. He thus prayed the application to be dismissed with costs for lack of merit. In his short rejoinder, Mr. Enock reiterates what he had submitted in his submission in chief and prays this court to certify the points of law as presented by the applicants in their affidavit. I have given careful consideration to the arguments for and against the application herein advanced by both parties, and the central issue for determination and consideration is whether there are contentious points of law raised in this application that need to be certified for the same to be determined by the Court of Appeal. I have considered the applicant's grounds in support of the certification and the pertinent questions that they seek the Court of Appeal of Tanzania to determine. In determining this application this court is mandated under section 5 (2) (c) of the Appellate Jurisdiction Act, 1979 which state that:- "No appeal shall He against any decision or order of the High Court in any proceedings under Heading (c) of Part III of the Magistrates’ Courts Act, 1963 unless the High Court certified that a point of law is involved in the decision or order." . It is crystal clear from the wording of the section that the question of whether or not a point of law is involved in the decision or order sought to be appealed against is the responsibility of this court. However, this court is only required to certify it and not to look into the correctness or otherwise of the impugned decision sought to be challenged. Regrettably, in his submissions, at some point the applicant's counsel submitted as if he is arguing the appeal before the Court of Appeal and cited some cases to support her argument. Since, the same is not part of my task, I did not reproduce them. Considering what the applicants deposed in their affidavit in respect of the points of law worth for the determination by the Court of Appeal, and considering the fact that this court is not allowed to examine on the meritious or otherwise of the intended appeal, I have the view that the issue of analysis and evaluation of the evidence, failure to consider applicants' submissions and to give reasons of accepting or refusing parties arguments are matters of facts that will be dealt with during the determination of appeal and the same does not qualify to be pure point of law for this court to certify. Now, upon going through the affidavits of the applicants, the point of law which are certified by this court are; v ' I 1. Whether it was proper for the second appellate court to validate the sale of the deceased's property. 2. Whether it was correct for the second appellate court to uphold the revocation of the respondent while it made a finding that the issue of the deceased's Will was not res judicata. 3. Whether the second appellate court dismissed the applicant's appeal by relying on the record which was not part of the court record. In the upshot, the application for certification on point of law is hereby granted since there are points of law raised by the applicants which attract the attention of the Court of Appeal of Tanzania. No order as to costs since the dispute originated from the Probate Proceedings where the parties are related. Order accordingly. x ') JUDGE 25/02/2025 Court: Ruling delivered on 25th day of February, 2025 in the presence of the counsel for both parties andd(he 1st applicant in person. M.MNYUKWA JUDGE 25/02/2025