Semu

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY)

AT BUKOBA MISC. CIVIL APPLICATION NO. 54 OF 2023 (Arising from the High Court in (PC) Probate Appeal No. 10 of 2023 and Probate and Administration Appeal No. 4 of 2022 at Bukoba District Court and original Probate Cause No. 12 of 2022 at Bukoba Urban Primary Court) SEMU MUBELWA KAGISA..................................................APPLICANT

VERSUS GENEROZA GOTFRID BYABUSHA (Administrator of the estate of the late SIMON MWIJAGE KAGISA)....................................... Ist RESPONDENT CYRUS SIMON KAGISA (Administrator of the estate of the late SIMON MWIJAGE KAGISA)............. ......................... 2nd RESPONDENT

RULING 19th August & 20th September 2024 F. H. KIWONDE, J. The applicant, Semu Mubelwa Kagisa filed an application by way of chamber summons supported by an affidavit of the learned counsel for the applicant, Mathias Rweyemamu predicated under section 5(2) (c) of the Appellate Jurisdiction Act, Cap 141 (R. E 2019) and Rule 46 (1) of the i Court of Appeal Rules, 2009 praying for certification on points of law as follows: i) Whether it was proper for the Courts to entertain the new opened Probate and Administration Cause No. 12 of 2022 while the probate and administration of estate of the deceased person Simon Mwijage Kagisa Probate Cause No. 80 of 1995 had already being heard and closed by the same Primary Court. ii) Whether the Probate and Administration Cause No. 15 of 2019 and Probate Cause No. 12 of 2022 created multiplicity to the Probate Cause No. 80 of 1995 of the same deceased Simon Mwijage Kagisa. iii) Whether Administration Cause No. 15 of 2019 and Administration Cause No. 12 of 2022 were not filed out of time from the deceased Simon Mwijage Kagisa. iv) Whether the High Court Judge and District Magistrate in- charge were empowered by law statute to nullify such subsequent proceedings to cure multiplicity of the proceedings on the same subject matter and determine 2 whether the trial court had jurisdiction to determine the matter in the circumstances. v) Whether the

Probate and Administration Cause No. 15 of 2019 could have been saved a nullity of its in competence in respect of all illegalities and procedural irregularities in administration of justice of the estate of the deceased Simon Mwijage Kagisa conducted throughout by Mr. L.K. Anthony (RM) and being filed out of time. vi) Whether it was proper for the learned Magistrate Z. R. Nyahende (RM) to deny the appellant's clan members who were ordered by L.K. Anthony learned Magistrate to convene clan members meeting to appoint any quality person the file a fresh suit for probate and administration cause Simon Mwijage Kagisa on the same powers of withdraw their matter initiated by clan members and the appellant. vii) Whether an application for withdrawal of probate and administration cause was not properly applied by the advocate for the applicant. viii) Whether the trial learned Magistrate Z. R. Nyahende (RM) after had dismissed the objections for appointment of the applicant as legal representative of the deceased person 3 SIMON MWIJAGE KAGISA and dismissed the prayer of being appointed as legal representative of the 2nd respondent and another by pronouncing the division to all the parties in open court for their unsuitability it was illegal and in breach of the doctrine of functus officio. ix) Whether the High Court of Tanzania at Bukoba hearing the Probate and Administration Appeal No.

10 of 2023 ignored to take a judicial notice of the existence parallel running proceedings of the Probate and Administration Cause No. 80 of 1995 and No. 15 of 2019. x) That the appellant had submitted and supplied the decision of the court by Hon. Banzi J. in June 2023 concerning the continuation of the issues of unsettled administration of the estates of the deceased person SIMON MWIJAGE KAGISA by the same court. xi) Whether the trial court in the circumstances could appoint the 2nd respondent suo moto after it had dismissed his prayer of being appointed as administrator of the estates of the deceased person. xii) Whether the High Court in administration of justice of hearing the appeal could not do it without calling upon all original 4 records and perusing them to cure procedural irregularities and illegalities and lower court in regard of the procedural impropriety in the administration of justice. xiii) Whether the judgment of the High Court of Tanzania at Bukoba in Probate and Administration Appeal No. 10 of 2023 which saved illegalities and procedural irregularities can stand in the face of the law of this country. xiv) And any other point of law this court can discover to be so important to have been resolved by the Court of Appeal. The respondents filed counter affidavits refuting some facts deponed by the counsel for the applicant and so, the matter became ripe for

hearing. By leave of this court, the application was argued by way of filing written submissions and the parties complied with the scheduling order. In his written submissions regarding the (i), (ii), (vi), (vii) and (ix) points of law Mr. Mathias Rweyemamu submitted that Mr. Jasson M. Kagisa was appointed as administrator of the estate of the late Simon Mwijage Kagisa in 1995. He performed his duties as administrator by distributing the deceased estate among the heirs and later filed inventory before the court in 1996. However, later on in 2019, Helmelinda Benedicto Kahatano and Cyrus Simon Kagisa filed Probate and Administration Cause No. 15 of 2019 5 before Bukoba Urban Primary Court praying the court to revoke the appointment of Mr. Jasson M. Kagisa and Honourable L. K. Anthony (RM) revoked it and nullified the proceedings in Probate and Administration Cause No. 80 of 1995. The Magistrate directed the clan members to appoint another administrator who can administer the estate of the late Simon Mwijage Kagisa. The counsel submitted that the said order was illegal and amounts to abuse of court process. Apart from that, the learned counsel submitted that when this matter came for appeal purpose in this court, Honourable Judge Otaru after calling for records in Probate and Administration Cause No. 80 of 1995 and the Probate and Administration Cause No. 15 of 2019 upheld

the decision of both the trial court and District court which ordered that the clan members to sit and appoint another reputable person and file a fresh case within 30 days. According to him, this is misconception and inapplicable. He further submitted that Probate and Administration Cause No. 15 of 2019 and Probate Cause No. 12 of 2022 were filed after the close of Probate and Administration Cause No. 80 of 1995 on 13th of March 1996. Thus, the subsequent proceedings are illegal and created multiplicity to Probate Cause No. 80 of 1995 of the same deceased Simon Mwijage Kagisa. To 6 support this point, he cited the case of Ahmed Mohamed Al laamar Versus Fatuma Bakari and Asha Bakari, Civil Appeal No. 71 of 2012, Court of Appeal of Tanzania at Tanga. As to the (iii) and (iv) points of law, the learned counsel submitted that under rule 5 of the Customary Law (Limitation of Proceedings) Rules G.N No. 311 of 1963 states that where any proceedings is brought for the enforcement of a claim under customary law for which no period of limitation is prescribed by these rules, the court may reject the claim with the opinion that there has been unwarranted delay in bringing the proceedings and that the just determination of the claim may have been prejudiced by that delay. The counsel said that by virtue of the records on Probate and Administration Cause No. 80 of 1995 the deceased

person Simon Mwijage Kagisa died on 10th June 1994 then if the respondents had interest to administer his estates were required to file probate case before the probate court. But from June 1994 to 2019 when Helmelinda Benedicto and Cyrus Simon Kagisa filed a Probate and Administration Cause No. 15 of 2019, almost 25 years had lapsed. According to him, such proceedings are unwarrantable delay which could not be tolerated by any competent court to proceed with the matters which were out of time. To support this point, 7 he cited the case of Ahmed Mohamed Al Laamar vs Fatuma Bakari & Asha Bakari Civil Appeal NO.71 of 2012. Concerning the (viii) and (xi) points of law, the learned counsel submitted that it was not proper for the courts to entertain the new opened Probate and Administration Cause No. 12 of 2022 while Probate and Administration Cause No.80 of 1995 was determined and closed. The counsel prayed this court to certify that there is point of law worthy to be determined by the Court of Appeal of Tanzania. In reply, the counsel for the respondents raised a sort of objection. He argued that the present application is incompetent for being grounded by defective notice of appeal. He submitted that the said notice of appeal does not comply with form D of the first schedule of the Tanzania Court of Appeal Rules. He said it has been filed without a valid notice of appeal as per

Rule 46(1) and 83(1) and (6) of the Tanzania Court of Appel Rules and so, it renders the application incompetent., he cited the case of Mechanical Installation and Engineering Co. LTD Versus Abubakar Ndeza Maporo & Another [1987] T. L. R 44 and the case of Henry Muyaga Versus Tanzania Telecommunication Company LTD, BK Civil Application No. 8 of 2011. 8 Apart from that they submitted that the application is also defective for being supported with an affidavit which contain defective verification clause and did not state which matters are from his knowledge or obtained from his client in n contravention of rule 3(1) of Order XIX of the Civil Procedure Code. He referred to the case of Lalago Cotton Ginnery and Oil Mills Company LTD Versus The Loans and Advance Realization Trust (LART), Civil Application No. 80 of 2002 and Tanzania Breweries LTD Versus Herman Bildad Minja, Civil Application No. 11/18 of 2019 (Both are decisions of the Court of Appeal of Tanzania). Leave that alone, the respondents submitted that this application is defective for inclusion of two respondents in the introductory part without indicating who among them is the first respondent and the second respondent. They were of the view that with such an error the whole proceedings become defective leading to striking out of the application. Furthermore, the respondents argued that this application ought to be made

under section 5(1) (c) of the Appellate Jurisdiction Act. They submitted that since the applicant want to appeal to the Court of Appeal then he is required to seek leave first. Short of that the application is unmaintainable for want of leave and therefore it should be struck out. The respondents argued that the impugned decision does not require 9 certification on point of law and therefore this application is unmaintainable and it should be struck out citing the cases of Sadiki Abdallah Alawi Versus Zulekha Suleman Alawi & Another [1999] T. L. R and Nasser E. Mwakamboja Versus Arthur Alfred Mambete, Civil Appeal No. 47 of 2008. On the issue of time limitation, the respondents submitted that this does not qualify to be the point of law as it is a point of fact which was already determined by the High Court. They were of the view that the said points of law are not apparent on the face of record and that it will take the long- drawn process of this court to find out or identify the alleged points of law. To support this point, he cited the case of Mwaka Musa Versus Simon Abed Simchimba, Civil Appeal No. 45 of 1994 and Masanja Luponya Versus Elias Lubinza Mshili, (PC) Probate Appeal No. 1 of 2020.. The respondents further submitted that the alleged points of law have ever been dealt with by the first appellate court in (PC) Probate Appeal No. 10 of 2023 and the applicant failed

to establish neither issues of general importance nor novel points of law worthy to be considered by the Court of Appeal. To buttress the position, he cited the cases of Alivuai Al Versus Suwed Mzee Suwed [2004] TLR 110, Mohamed io Mohamed & Another Versus Omari Khatib, Civil Appeal No. 68 of 2011 and the case of Magiga Nyamoyo Kisinja vs Merania Mapambo Machiwa Civil Appeal No. 87 of 2018. They prayed the application be dismissed with costs for being incompetent and bad in law for being incomprehensible and failure to be specific to the point at issue and being a total mix up. In his rejoinder submissions, Mr. Mathias Rweyemamu submitted that where the appeal originates from primary court then certification on point of law is a mandatory requirement. With regard to the issue of notice of appeal being defective, the learned counsel submitted that this is misconception on the part of the respondents since nowhere in the counter affidavit nor in the written submissions they raised notice of preliminary objection regarding to Notice of Appeal in order to determine its competence as per rule 89 of the Court of Appeal Rules 2009.and to support this point, he cited the case of Cleophace Kaiza vs Potence Mugumila, Civil Appeal No. 378 of 2021 Court of Appeal of Tanzania and Mechanical Installation & Engnering Co. ltd vs Abbubakari Ndeza Maporo & Another [1987] T. L. R 44. li He argued

that the issue of affidavit, the same is sworn that all he stated are true to the best of his knowledge and the numbering of the respondents, all the respondents are named by their own names. On the issue of leave requirement, the counsel said there is no requirement to apply for leave to appeal to the Court of Appeal and for the matters originating from primary court only certification on point of law is the legal requirement and that this court can certify any other points of law according to the decision in the case of Therod Fredrick vs Abdul Samadu Salimu Misc. Land Case Application No. 47 of 2012. He therefore prayed for this application to be allowed. From the pleadings and written submissions, the issue for determination is whether the application has been merited or otherwise. Before embarking to the main issue, it is imperative to state that the objections need be raised at the earliest possible opportunity. This is lest to take the other party by surprise.in this application, the respondents challenged the competence of the application by saying the affidavit is defective for failure to specify which facts are from the deponent's own knowledge and those obtained from the information of other medium and defective notice of appeal to the Court of Appeal. When I went through the affidavit supporting this application, I was satisfied that the same is 12 duly verified

showing that all paragraphs are true to the best of his knowledge. The respondents confused it with the proposed points of law in the chamber summons. Thus, these arguments are vague. Also, this court is duty bound to certify only points of law. It does not go beyond that. The issue of leave requirement to appeal to the Court of Appeal of Tanzania, indeed, it is no longer a legal requirement per amendments made via the Legal Sector Laws (Miscellaneous Amendments) Act, No. 11 of 2023 which came into effect from December 2023. This was also stated in Petro Robert Myavilwa versus Zera Myavilwa and another, Civil Application No. 117/06 of 2022 [2023] TZCA 17947 (13th December 2023) that leave to appeal is no longer the legal requirement and in so far it is a procedural aspect, it applies retrospectively. The amendments did not do away with certification on the point of law for matters originating from primary courts. Reverting to main issue, in law, the High Court has to certify only pure points of law which require intervention by the Court of Appeal of Tanzania. This entails that matters of facts have to end up to the High Court. In Dorina N. Mkumwa Versus Edwin David Hamis, Civil Appeal No. 53 of 2017 [2018] TZCA 221 (11th October 2018) and Agness 13 Severini V. Mussa Mdoe [1989] T. L. R 164 it was dearly held that matters of facts will end up to the High Court which will only

certify point or points of law to the Court of Appeal. Also, in Magige Nyamoyo kisinja vs Merania Mapambano Machiwa, Civil Appeal No. 87 of 2018 where it was insisted that a point of law to be certified by the High Court must be that of legal nature and significant to warrant the decision of the Court. It is not enough for a party to simply think the lower court is wrong in its decision to have his case heard by the Court of Appeal. Matters of law which the court is called upon to determine must transcend the interest of the immediate parties in the appeal. In this application, the proposed points of law under items (ii), (vii), (x), (xii) and (xiv), indeed, are not pure points of law. This is because they are to the effect that whether Probate and Administration Cause No. 15 of 2019 and No. 12 of 2022 created multiplicity for the same deceased person Simon Mwijage Kagisa, whether the withdrawal application made by the counsel was not properly applied by the counsel for the applicant, submission and supply by the counsel of the decision of the court to the Honourable Judge on the continuation and unsettled administration of the deceased properties, that whether the High Court could do justice without 14 calling for lower courts records and any other points of law this court may find necessary to certify, are matters of facts and not pure points of law. For that matter, they are

rejected. As to the (iii), and (iv) points of law that is whether Probate and Administration Cause No. 15 of 2019 and Probate Cause No. 12 of 2022 were time barred. The records on Probate and Administration Cause No. 15 of 2019 show that the applicant only filed application for revocation of letter of administration granted to Mr. Jasson M. Kagisa on the ground that the administrator failed to perform his duties since his appointment whereas, Probate and Administration Cause No. 12 of 2022 is all about appointing new administrators after the revocation of Mr. Jasson Kagisa. Matters concerning revocation of the administrator of the deceased estate can be done at any time before close of the probate cause. Therefore, issue of limitation period cannot arise. This covers the alleged point of law in item (v). For the reason, these cannot be a points of law worthy to be determined by the Court of Appeal and they are hereby refused. The point of law sought to be certified under item (vi) does not qualify to be so called since the clan members were not party to the matter in court, thus, they could not withdraw the same. This point too is not certified. 15 Coming to the suggested point of law in item (i), it is averred that the probate cause No. 80 of 1995 had been close, so, it was improper to re­ open other subsequent probate causes. However, the records indicate that the previous

appointed administrator had not performed his duties that is why he was revoked. Therefore, this was a matter of evidence before the trial court to ascertain if the administration was completed after filing inventory and submitting the final accounts and statement of the deceased estates. It is true that re-opening closed probate proceedings is illegal, but this point is mixed with facts, thus, does not qualify to be pure point of law. The proposed points of law in items (viii) and (ix) are to the effect that whether it was proper to entertain the new opened Probate and Administration Cause No. 12 of 2022 while Probate and Administration Cause No. 80 of 1995 was already determined and closed. The counsel for the applicant said it is against the doctrine of functus officio and failure to take judicial notice by the High court of the parallel proceedings with probate and Administration Cause No. 80 of 1995. Upon going through the records only to find out that in Probate and Administration Cause No. 12 of 2022 before Bukoba Urban Primary Court, Mr. Semu Mubelwa Kagisa and Jeneroza Gotfrid Byabusha were appointed as administrators of the 16 estate of the late Simon Mwijage Kagisa after the revocation of Mr. Jasson M. Kagisa in Probate and Administration Cause No. 15 of 2019. The learned Magistrate followed the orders as per the judgment in Probate and Administration Cause No. 15 of

2019. The revocation was based on reason that the applicant did not perform his duty as administrator for 26 years and the probate cause has never been closed. Therefore, the issue of functus officio cannot arise. When the High Court dealt with Probate and Administration Appeal No. 10 of 2023, concentrated on the grounds of appeal before it. To that end, these points are points of law worthy to be put to the attention of the Court of Appeal and they are rejected. Finally, the points of law sought to be certified in items (xi) and (xiii), in law, the Magistrate presiding over probate matter can appoint any interested person it thinks fit to administer the deceased estates either, on application or on its own motion. Also, just as I have pointed out above, the High Court confined itself determining the grounds of appeal in Appeal No. 10 of 2023. The counsel for the applicant said it saved illegalities and procedural irregularities, then he asked whether it can stand. This again, is mixed with facts and it depends on the evidence. So, it is not a pure point of law. For the foregoing reasons, the points in items (xi) and (xiii) 17 cannot be certified as points of law to be determined by the Court of Appeal. In view of the above, this application lacks merits and it is hereby dismissed with cost. Dated at Bukoba this 20th September 2024. F.H. KIWONDE

JUDGE 20.09.2024 Court: Ruling is delivered in chamber in the presence of Mr. Mathias Rweyemamu, the learned counsel for the applicant, the applicant, the first respondent and Grace Mutoka (RMA) but in the absence of the second respondent this 20th September 2024. 20.09.2024 18