20061103 TZHC Moshi2

IN THE HIGH COURT OF TANZANIA ATMOSHI MISC. CIVIL APPL. NO. 43 OF 2004 FROM (PC) CIVIL APPEAL NO. 13 OF 2~05 -.. C/F DC MOSHI CIVIL APPEAL NO. 78 OF 2002 COSMAS SA TORE MBORO ............ APPELLANT VERSUS NURU SALEHE ................................. RESPONDENT RULING MWAIKUGILE, J. COSMAS SA TORE MBORO, the applicant, filed an application before this court for leave to appeal to the Court of Appeal of Tanzania against Judgment/Order in (PC) Civil Appeal No.13 of 2003. The background to the application may briefly be stated as follows. The appellant instituted a suit in the Primary Court of Kindi, Moshi District within Kilimanjaro Region vide Civil Case No.23 of 2001. The suit was based on a disputed transaction concerning a piece of land measuring 47 - 26 paces worth Shs.200, 000/=. The appellant sought the trial comi to declare him the lawful owner of the land in dispute purporting that it was validly sold to him by the respondent. After full hearing, the trial court entered judgment for the (plaintiff) appellant. The respondent was aggrieved by the trial court decision. He lodged an appeal to the District court of Moshi at Moshi where the trial court decision was reversed and allowed the appeal. The appellant was dissatisfied with the th decision and lodged an appeal to this court. On the 24 of July, 2003, this court dismissed the appeal with costs and upheld the District court decision. Aggrieved by the dismissal, the appellant filed an application for leave to appeal to the Court of Appeal of Tanzania on the 23 rd of June, 2004. 1 I,\ The Chamber Summons were made under Rules 43 and 46 of the Court of Appeal Rules, 1979 and section 5 of the Appellate Jurisdiction Act, 1979 as amended by Act No.16 of 1984, duly supported by an affidavit sworn by Cosmas S. Mboro, the applicant. The respondent was duly served with a copy of the Chamber summons plus its supporting affidavit and filed a counter affidavit containing a Preliminary Objection on points of law. (i) That the applicant does not in his affidavit raise the points of law involved for the attention of the Court of Appeal of Tanzania. (ii) That the applicant does not show a question of law which can properly be certified for the opinion of this court. Both parties in the application appeared in person unrepresented. At the hearing, for the interest of justice the court advised the parties to proceed to hearing by way of Written Submission. With full support of both parties, hearing of the Preliminary Objection proceeded by way of Written Submissions. The respondent was to file his Written Submission on or before 5/10/2005. Reply by the Applicant was to be filed on or before 19 th October, 2005 and rejoinder if any was filed on 2nd November, 2005 and set the case for a mention on 8th February, 2006. When the court convened for mention of the case on 8/2/2006, the respondent dutifully complied with the Court Order by filing his Written Submission on 8/2/2006. The applicant failed to file his Reply on 2/3/2006 as ordered by this comi and he has not done so todate. This court did on the 1st June, 2006 find out from the appellant why he had not complied with the court order. The applicant had no answer and just kept quiet He gave no reasons. Following from that, the court proceeded to set a date for delivery of the Ruling. After hearing the parties and having gone through the grounds advanced in the supporting affidavit and before I draw the attention of this court to the submissions made on the Preliminary Objection, let us first examine the application itself. This is an application for leave to appeal to the Court of Appeal of Tanzania. The case originates from a Primary Court and it being an 2 . application for leave this court in S.K. Daniel V. M.M. Nyang'anyi [1989) TLR n.64 held: "In an application for leave to the court of appeal the applicant must demonstrate that there is a point of law for the attention of the court of appeal ... " In the light of the preceding case law authority, it is my humble considered view that the applicant in this application should at least have listed the points of law fit to be considered by the court of appeal of Tanzania. The list of the said points should have been annexed to his supporting affidavit to the application. This court, upon studying them would then proceed to certify them for the opinion of the Court Appeal of Tanzania. After a careful examination of the grounds in the supporting affidavit, I observed that the applicant in paragraph 13 states, quote: , "That an appeal to the court of appeal of Tanzania for cases originating from lower courts that the High Court lies with leave of this Honourable Court certifying presence of points law, mixed law or fact for the intended appeal, the leave which I hereby seek it accordingly." The applicant in this application did not go further to point out the points of law that which he is calling upon this court to certify for the opinion of the Court of Appeal of Tanzania. A mere mention that there are points of law fit to be considered by the Court of Appeal of Tanzania, that in my view is not enough. The alleged point of law must be specifically listed down so as to afford opportunity to this court to see and assess them and if satisfied that they deserve court of appeal attention, then the same may be certified for the opinion of the said court. In the case at hand, there is no specific list of the said points of law which have been framed by the applicant. Failure to do so makes the application for leave as in the case at hand, incompetent and liable to be struck out. 3 N. AIKUGILE, UDGE 3/11/2006 red in the presence of the Applicant in person and the Respondent rd in person this 3 day of Nov 006. - . MW AIKUGILE, GE 3/11/2006 4