Petro Robert Myavilwa vs Zera Myavilwa and Another (Civil Application No.117/06 of 2022) [2023] TZCA 18048 (13 December 2023)

PETRO ROBERT MYAVILWA VS ZERA MYAVILWA & ANOTHER COURT OF APPEAL TANZANIA (CORAM: KAIRO, J.A.) CIVIL APPLICATION NO.117/06 OF 2022 (Application for Extension of time to apply for leave to appeal to Court against the Judgment of the High Court of Tanzania at Mbeya dated the 4th day of May, 2020 in Probate Appeal No. 1 of 2019) Civil appeal – Extension of time – Procedural changes in appeal requirements due to legislative amendments – Leave to appeal no longer required as of December 2023. This application concerned an extension of time to file leave to appeal to the Court of Appeal against a decision of the High Court in Probate Appeal No. 1 of 2019. The applicant sought the extension on grounds including delay in obtaining a correct certificate of delay and a point of law about denial of the right to be heard when the Primary Court appointed a co-administrator of an estate. At the hearing, both parties raised concerns about the impact of recent amendments to section 5 of the Appellate Jurisdiction Act (AJA) by the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023, effective December 1, 2023, which abolished the leave to appeal requirement for appeals from the High Court. The applicant’s counsel argued that both leave to appeal and a certificate on a point of law were necessary prerequisites for appealing decisions originating from the Primary Court. The respondent’s counsel countered that only a certificate on a point of law was required, making the applicant’s leave application misconceived and the current application similarly defective.

The Court analysed the amendment to section 5 of the AJA, concluding that the requirement of leave to appeal from the High Court has been abolished for all civil proceedings, including those exercising original, appellate, or revision jurisdiction. The amendment has retrospective effect and therefore, the present application for extension of time to apply for leave to appeal has been overtaken by the law. Held: (i) The court held that the changes introduced by the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023 rendered the application for leave to appeal redundant, as it abolished the requirement of leave in the context of appeals against any order or decree of the High Court, effective from 1st December 2023. (ii) The court determined that since the matter originated from a Primary Court, the applicant needed a certificate on point of law, not leave to appeal. (iii)Consequently, this procedural amendment retrospectively affected the pending application, rendering it without merit and necessitating its dismissal. The Court struck out the application without costs, holding that pursuing leave to appeal is no longer necessary under the amended law. Further hearing of the application was deemed unnecessary. Statutory Provisions referred to: (i) Section 5 of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 (as amended) (ii) Section 10 of the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023 (iii) Rule 10 of the Tanzania Court of Appeal Rules, 2009