SHANI VRS MAPINDUZI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS CIVIL APPLICATION NO. 12412 OF 2024 CASE REFERENCE NO. 202405281000012412 SHANI BERNARD MTASHOKA.......................................................... .APPLICANT VERSUS MAPINDUZIWAMBURA MWITA...................................................... RESPONDENT RULING OF THE COURT 18/09/2024 & 16/10/2024 Kafanabo, J.: The Applicant herein has moved this court by chamber summons supported by an affidavit praying for this court to certify that there are points of law involved in the Applicant's intended appeal against the whole decision of this Court (Hon. M.L.Komba, J.) in PC Civil Appeal No. 50 of 2023 dated 23/04/2024, meriting the attention of the Court of Appeal. The application was resisted by the Respondent who filed a counter affidavit. A brief background of the matter is that the Respondent herein lodged Civil Case No. 180 of 2021 at Musoma Urban Primary Court (hereinafter the J 'trial court) against the Appellant, and one Bernard Joseph Mtashoka (not a party to this application). The said case was decided in favour of the Respondent, where the trial court ordered that the Respondent be paid a i total of TZS 30,200,000/= by Bernard Joseph Mtashoka who was said to be the Applicant's spouse. The order of the court was not honoured by the said Bernard Joseph Mtashoka and thus the Respondent resorted to the execution process. However, on 09/02/2023 the Applicant filed objection proceedings against the said execution process. The objection proceedings were set for hearing on 25/04/2023, but the Applicant herein (who was the objector) defaulted appearance and the trial court (Hon. P.P. Mkeha) dismissed the objection proceedings under Rule 24 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules, Government Notices No. 310 of 1964 and 119 of 1983. The Applicant being dissatisfied with the dismissal order dated 25/04/2023 applied for restoration of the objection proceedings. However, the said application for restoration was dismissed on 10/05/2023 and the dismissal order of the objection proceedings was upheld. Undeterred, and dissatisfied by the decision of the trial court upholding the dismissal order, the Applicant appealed to the District Court via Civil Appeal No. 19 of 2023. The said appeal was also dismissed for want of merits. The Applicant, being disgruntled, appealed to this court through PC Civil Appeal No. 50/2024 which was heard and determined in favour of the Respondent herein by this Court. The Applicant was also aggrieved by the said decision of this Court and thus lodged a notice of appeal initiating the process of Appeal to the Court of Appeal of Tanzania. Moreover, since the matter commenced at the 2 primary court, the Applicant has made this application for certification of points of law, claiming that there are points of law which the Court of Appeal of Tanzania should determine against the judgment and decree dated 23rd day of April 2024 in PC Civil Appeal No. 50/2024. The proposed points of law in respect of which certification of this Court is sought are; one, whether this court was right in upholding the decision of the District Court which invoked and discussed the law which was not invoked by the trial court/Primary Court, and two whether this court was right in upholding the lower court's decision which denied the Applicant the right to be heard. When the application was called for hearing Ms. Suzana Gibai, Advocate entered an appearance for the Applicant, and the Respondent, Mr.Mapinduzi Wambura Mwita, entered an appearance in person. In support of the application, Ms. Gibai launched her submission by adopting the Applicant's affidavit in support of the application. It was also submitted that the application is brought under section 5(2)(c) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019. The learned counsel submitted that it is the Applicant's prayer that this court be pleased to certify that there are points of law worthy of consideration by the Court of Appeal. It was narrated that, as indicated in the affidavit of the Applicant, this matter commenced at the Primary Court i and was dismissed as explained in paragraph 4 of the affidavit. It was dismissed under rule 24 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules because the Advocate and Applicant did not show 3 up in court. Then Applicant appealed to the District Court where the appeal was dismissed because the District Court invoked the law which was not referred to and determined by the Primary Court in its decision, that is Rule 6(2)(3) of the Kanuniza Waendesha Mashtaka na Mawakilikatika Mahakama za Mwanzo GN. 168 of 2023. After the dismissal of the appeal the Applicant was not satisfied and he appealed to the High Court. The High Court dismissed the Appeal. It was submitted that the decision of the High Court to dismiss the Appeal whilst the District Court invoked the law that was not referred for determination in the Primary Court was improper, and it is a point of law that needs to be determined by the Court of Appeal. Moreover, another point of law that needs certification is that the Applicant was denied the right to be heard contrary to Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 as amended. The learned counsel referred this court to paragraph 4 of the affidavit which indicates that the trial court was notified of the absence of the Applicant and his Advocate but the court dismissed the application without affording the Applicant a right to be heard. It was thus prayed that the court be pleased to find that there are points of law to be certified by this court worthy for determination by the Court of Appeal. The Respondent on his part prayed that the court be pleased to dismiss the application because it is devoid of merit. It was the Respondent's submission that the Primary Court dispensed justice by following the principles of law in the relevant decision. Therefore, according to the Respondent, there is no point of law for certification by this Court for the Applicant to appeal to the Court of Appeal. He also prayed that the counter 4 affidavit he filed be accepted as part of his submissions. He prayed that the court be pleased to render a reasonable decision for the benefit of both parties. After the parties' submissions have been laid bare before the court, this Court is called upon to determine the merits of the application. The application, as alluded herein above, seeks to challenge the decision of this Court in PC Civil Appeal No. 50 of 2023 dated 23/04/2024 by way of appeal to the Court of Appeal because of two major points of law as set forth by the applicant in her affidavit. However, before embarking on the determination of this application, it is vital to categorically state that this court derives its jurisdiction to entertain this kind of application from section 5(2)(c) of the Appellate Jurisdiction Art, [Cap 141 R.E. 2019] which provides as follows: "(c) no appeal shall He against any decision or order of the High Court in anyproceedings under Head (c) ofPart HI ofthe Magistrates'Courts Act unless the High Court certifies that a point oflaw is involvedin the decision or order" See also the cases of Wilson Andrew vs Stanley John Lugwisha & Another (Civil Appeal 226 of 2017) [2020] TZCA 72 (25 March 2020) and Shaban R. Kavitenda vs Yasin S. Kavitenda (Civil Application 252 of 2020) [2022] TZCA 175 (1 April 2022). Reverting to the present application, and in light of the points of law sought to be certified by this court as stated hereinabove, the major complaint is whether the High Court was right in upholding the decision of 5 the District Court which invoked and discussed the law which was, allegedly, not invoked by the trial court. For this court to properly assess whether this Applicant's complaint is valid, the Applicant was supposed, through her affidavit, to place before this court at least all the decisions of the trial court the subject matter of the two appeals, that is appeal to the District Court and this Court. However, the affidavit supporting this application did not attach any of the trial court's decision(s) which is (are) said not to have invoked the provision of Rule 6(2)(3) of the Kanuniza Waendesha Mashtaka na Mawakili katika Mahakama za Mwanzo, G. N. 168 of 2023 referred by the District Court in its decision. This means that this Court will determine this application in the light of the record as presented to it by the Applicant. The reason is simple, this Court will not tread unto the unknown conjecturing which decision of the trial court is relevant to this application, given that in the trial court there seem to be three decisions which have not been availed to this court. One, the decision determining the merits of Civil Case No. 180 of 2021, two, the decision dismissing objection proceedings and three, the decision dismissing the application for restoration of objections proceedings. The record of this application attached the decision of the District Court (1st appellate court) in Civil Appeal No. 19 of 2023 and a decision of the High Court, the 2nd appellate court, in PC Civil Appeal No. 50 of 2023 dated 23/04/2024. On pages 4 to 5 of this court's decision in PC Civil Appeal No. 50 of 2023, it is clearly stated that Rule 6(2)(3) of the Kanuni za Waendesha Mashtaka na Mawakili katika Mahakama za Mwanzo G.N. No. 168 of 2023 was referred by the trial court when dismissing the 6 Application for restoration stating categorically that failure of the advocate to attend the primary court proceedings because he is attending in another court or tribunal would not be a reason for adjournment of a hearing of the matter and proceeded to dismiss the matter under rule 24 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules. For clarity purposes and ease of reference, the provision in question in this matter is Rule 6(2)(3) of the rules regulating the appearance of advocates and public prosecutors in primary courts, properly cited as Kanuni za Waendesha Mashtaka na MawakiU katika Mahakama za Mwanzo GN. 168 of2023 provide in the Kiswahili language that: 2) WakiH au mwendesha mashtaka kuhudhuria katika mahakama nyingine au baraza haitakuwa sababu ya kuahirisha shauri. (3) Endapo wakiti au mwendesha mashtaka ameshindwa kuhudhuria mahakamani kwa sababu ya kuhudhuria kwake katika mahakama nyingine au baraza, mahakama itamtaka mhusika kuendeiea na shauri yeye mwenyewe na akikataa kuendeiea au kama hayupo, mahakama itachukulia kwamba mhusika huyo ameshindwa kuhudhuria mahakamani na madhara ya kutokuhudhuria yatatumika. Paraphrasing the substance of the above rules in the English language, they simply mean that 'An appearance ofan advocate or public prosecutor in another court or tribunal, shall not be a reason/ground for an adjournment of a case, and If an advocate or a public prosecutor falls to enter an appearance in court because ofhis appearance in another court or tribunal, the court shall demand a party to proceed with the case themselves and if 7 they fail to proceed or they are absent, the court shall take it that the said party has failed to enter an appearance in court and consequences offailure to appear in court thereofshall take it's coursd'. The decision of this court in the said PC Civil Appeal No. 50 of 2023 dated 23/04/2024 made it clear that the 'trial court magistrate made reference to the said rules and eventually dismissed the Appellant's claim under Rule 24 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules which provides that: "Where the defendant appears and the claimant does not appear when the only proceeding is called on for hearing, the court shall order that the proceeding be dismissed, unless the defendant admits the claim or any part thereof, in which case the court shall make such order as may be appropriate." In the light of the record of this application before this court, it is indicated, and this court is satisfied that the District Court did not invoke and discuss the law which was not invoked by the trial court. Instead, Rule 6(2)(3) of the rules regulating <the" appearance of advocates and public prosecutors in primary courts properly cited as Kanuni za Waendesha Mashtaka na Mawakiiikatika Mahakama za Mwanzo G.N. 168 of 2023 was well referred to by the trial court as indicated on pages 4-5 of this Court's decision in PC Civil Appeal No. 50 of 2023 dated 23/04/2024. The said rules were also referred to by the District Court (1st appellate court) in Civil Appeal No. 19 of 2023 on pages 3-4 of its decision. 8 Under the circumstances, it is this Court's finding that the District Court (1st appellate court) in Civil Appeal No. 19 of 2023 determined the appeal based on the laws invoked and applied by the trial court. It follows that the decision of this Court dated 23rd April 2024 in upholding the decision of the 1st appellate court did not breach the Applicant's right to be heard as alleged or at all. Therefore, the Applicant has failed to demonstrate that the decision of this court in PC Civil Appeal No. 50 of 2023 dated 23/04/2024 raises any point of law worthy of determination by the Court of Appeal because the Applicant was duly given a chance to be heard but failed to utilize the same according to law. In light of the foregoing, this application is unmeritorious and thus dismissed with no order as to costs. It is so ordered. Dated at Musoma this 16th day of October 2024. Judge 16/10/2024 9 The Ruling was delivered today in the presence of Ms. Suzan Jacob Gibai, Advocate (linked via teleconference) for the Applicant, and in the presence of Mr. Mapinduzi Wambura Mwita, the Respondent (also linked via 10