20131023 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KILEO, J.A., MASSATI,J.A., And MANDIA,J.A.) CIVIL APPEAL NO. 91 OF 2010 SHAHA SALEHE MWINYIHIJA ....................................APPELLANT VERSUS STAMILi SALEH E•••••••••••••••••••••••••••••• ••••••••••••••••••••• RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (Muruke, J. ) Dated the 28th day of November, 2008 in PC Civil Appeal No. 70 of 2008 JUDGMENT OF THE COURT 21 st & 23 October, 2013 MASSATI, J.A: The parties to this appeal ·are siblings. The appeal originates from a decision of Magomeni Primary Court in Probate and Administration Case I No.113 of 2002 dated 6.9.2007. There, it was ordered that a house on Plot ! I I // no 4 Block V Kagera - Kimamba, Magomeni, Dar es salaam, belonging to I I the estate of their deceased mother, HALIMA MOHAMED ZEGE, of which / / / / they are joint administrators, be valued and sold and the proceeds be distributed between the three beneficiaries, namely the parties herein, and their brother JUMA SALEHE, who is since late. Although that application was made by the appellant, he was not happy with the decision, and so, decided to oppose it by appealing to the District Court at Kinondoni. There, he argued principally that, since their brother JUMA had already sold his shares to the property to him, it was wrong to include him again in the distribution of proceeds of the proposed sale. The District Court did not buy the argument. His appeal was dismissed. He appealed again to the High Court where his appeal was also dismissed. The present appeal is therefore an attempt at a third appeal. The issue is whether the appeal is competently before us. When we posed that issue to the parties, both seemed to be completely confused. The appellant argued that he had applied for leave and obtained it from the High Court. The respondent went completely off point and addressed us on the origin of their dispute. As the issue was one of law, and the parties were lay persons, we were not surprised by that. Appeals to this Court are governed by the Constitution of the United Republic of Tanzania, Cap 2 - RE 2002, the Appellate Jurisdiction Act, Cap 141 RE 2002, and the Court of Appeal Rules 2009. Third appeals in civil 2 proceedings, are governed by section 5(2)(c)of the Appellate Jurisdiction Act, which provides:- 5(2)(c) No appeal shall lie against any decision or order of the High Court in any proceedings under Head (c) Part Ill of the Magistrates Courts Act unless the High Court certifies that a point of law is involved in the decision or order". As hinted above, the present proceedings originate in a primary court. So it falls under Head( c) part III of the Magistrates' Courts Act, cap II RE 2002. So section 5 (2)(c) of the Appellate Jurisdictions Act was applicable. But, instead of applying for a certificate, the appellant applied for leave to appeal under Section 5(1) (c) of the Appellate jurisdiction Act, and that is what the High Court granted. Needless to say, a certificate on a point of law and leave to appeal are two different creatures bred under two different provisions of (but) the same law. (See DICKSON RUBINGWA v PAULO LAZARO (Civil Application No. 1 of 2008 (unreported) A third appeal to this Court cannot be instituted without that certificate. In the absence of such a certificate on a point of law, the appeal before us is incompetent. It is accordingly struck out, but as this is a family dispute we make no order as to costs. 3 • . DATED at DAR ES SALAAM this 23 rd day of October, 2013 E. A. KILEO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL at this is a true cop of the original. MALE M.A D PUTY REGI I COURT OF AP I 4