Shamsa Salim Hamduni vs Administrator General and Another (Civil Application No 360/01 of 2020) [2022] TZCA 3117 (13 September 2022)

SHAMSA SALIM HAMDUNI VS. THE ADMINISTRATOR GENERAL & ANOTHER COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: NDIKA, FIKIRINI AND KIHWELO JJ. A) CIVIL APPLICATION NO 360/01 OF 2020 (Application for leave to appeal arising from Miscellaneous Application No. 506 of 2019) Civil Procedure and Practice- Application for leave to appeal- grounds upon which leave to appeal may be granted? Civil Procedure and Practice- Appeal to the Court of Appeal- What grounds can be litigated at the Court of Appeal on first appeal? Civil Procedure and Practice- Application for second bite leave- Powers of the Court of Appeal to entertain second bite application for leave? The dispute arose on 16th September, 2014, when the High Court of Tanzania at Dar es Salaam (Mwakipesile, J.) in Probate and Administration Cause No. 8 of 2010 appointed the applicant and the 1st respondent as co-administrators to join the 2nd respondent in administering the estate of the late Salim Hamdun Said. Subsequently, the 1st respondent filed Miscellaneous Civil Application No. 671 of 2018 seeking to revoke the appointment of the applicant and the 2nd respondent, so that the 1st respondent could remain the sole administrator. The application was heard ex parte, and Mgonya, J. granted the relief sought.

Aggrieved by that decision, the applicant filed Miscellaneous Civil Application No. 506 of 2019 seeking to have the ruling and order set aside. The High Court (Mgonya, J.) dismissed the application for want of merits. Dissatisfied, the applicant lodged a notice of appeal and filed an application for leave to appeal, which was unsuccessful. This gave rise to the present second-bite application for leave to appeal. Held: (i) The Court reinstated the principle enunciated in the case of Harban Haji Moshi and Another v. Omari Hilal Seif and Another [2001] TLR 409 and British Broadcasting Corporation v. Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004 (unreported) where it was stated that “As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal”. (ii) As the general rule first appeal could be predicated on issues of law or fact or both law and fact. (iii) The power of the Court of Appeal to entertain application for leave as second bite is vested under provision of Section 5(1)(c) of the Appellate Jurisdiction Act, [Cap 141 R.E 2022]. Application was granted. Statutory provision referred to: (i) The Appellate Jurisdiction Act, [Cap 141 R.E 2022], Section 5(1)(c). Case laws referred to: (i) Harban Haji Moshi and Another v. Omari Hilal Seif and Another [2001] TLR 409. (ii) British Broadcasting Corporation v. Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004 (unreported).