20080625 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA ATTANGA TAG, CIVIL APPLICATION NO. 7 OF 2005 BAKARI KIJANGWA ...............................................................APPLICANT VERSUS THERESIA ATHUMANI. ........................................_............. REPONDENT (An Application for leave to appeal against the decision of the High Court at Tanga) (Shangali,J.) dated 2nd September, ?OOS in· Misc. Civil Application No. 92 (A) of 2003. RULING 24th & 25th June 2008 KIMARO, J.A. By a notice of motion filed under an unspecified provision of the Appellate Jurisdiction Act, 1979 the applicant is seeking for an order by the Court to reverse the decision of the High Court which refused to certify a point of law for the determination of the Court. 1 Apparently, both parties in the application are laymen and the applicant was not aware of the nature of the application which he brought before the Court. The applicant sued the respondent for ownership of land in a case which started at Mlalo Primary Court. He lost the case in all courts in the ladder up to the High Court. In his application to the High Court under section S(l)(c ) of the Appellate Jurisdiction Act, 1979, and Rules 43 (a) and 44 the High Court refused to certify that there was any point of law for the determination of the Court of Appeal. In refusing the application the learned High Court Judge (Shangali, J.) said: 'In short there is nothing substantial raised by the applicant to show that there is any matter of fact-or law left lingering and unuttered by the lower courts or the High Court in this matter." 2 . ... . ·. ..;-_. ....... • ., . The applicant was not satisfied with the decision of the High Court. He bought this motion asking the Court to make an order reversing the decision of the -High Court. I must at the outset say that the application is misconceived. First, the application in the High Court was wrongly filed under section S(l)(c) of the Appellate Jurisdiction Act, 1979. Second, the relevant provision which deals with such applications is section 5(2)( c ). Third, if the High Court, rightly or wrongly refuses to certify that there is a point of law for the determination of the Court the decision becomes final. It is not open for challenge in the Court of Appeal. Because of the foregoing reasons, the application by the applicant is incompetent. It is struck out under rule 3(2)(b) of the Court of Appeal Rules, 1979. There is no order for costs. DATED at TANGA this 25th day of June, 2008. N.P.KIMARO JUSTICE OF APPEAL 3 (W.&°'.A) DEPUTY REGISTRAR 4