19810901 TZHC Dar es Salaam

... HT .THE HIGH OUOTIT OF TDTZANIL LT D.{:]1 :8S SJ'J.,!JJvi CIVIL KPI'Ii.LL j,-o. 2 OF 1982 DI}~f;S'i:~ l~ • ICIIBT 111 • ti • Q o o o o •• o • o • o • o • e •••• • o .1.'.I ;:•ELIJ~lTT Versus Li: V_~JJ 11 • I<::-:i-:I;J'l' Ill The Registrar of Buildir\:;s ••••••••••••••• RESi'OtiJ)EHT RULriG Buhati, Ag. J.- This is <'.n oral application /or lecve to nppeal to the Court of Appeal. This applicc.tion was opposed by Mr. · JP,kha for the respondent on the grounds thc.t 2. second appeal can only lie on n point of law. r,Ir. Lo.lc..½a went on to argue that the only point of law wns res judic2:tn which had not been argued in the High Court. The other points were questions of fact which the Court of Appeal does not deal with on n second nppenl. Since there was no point of lc.w it would be wrong to grant leave becnuse an appeal does not lie. In reply~ Mr. Keso.ria fo:c the applic 8 nt said that the points before the High Court were on the definition of 11 tenancy". He submitted that it would be in·the public interest if this nntter went up to the Court of 1,ppeal. The kppelh,te Jurisdiction Act provides thnt with leave of the High Court or the Court of Appeo.l any other judgnent decree or order fron the Righ Court nay be appealed against to the Court of Appeal (s.4(c)). There is no provision in this section that only o.PJ?Cc.ls on n point of lo.w lie to the Court of li.ppeal. Hovv- ever decided·c2.ses have shovm thD.t second appeals to the Court of Appeo.l are on a point of lc.w or r;iixed law and fact. But it is not every uppcal that is on a question of law or mixed law and fnct which goes to the Court of Lppeo.l. Otherwise the Court of appeal would be flooded with appec.ls. Who.t~ therefore, is the • criterion of granting leave to ap1):::al to the Court of Appeal? Iara of the view tho.t there is no hard and feet rule. Much depends on the wisdom and objectivity of the Judge granting leave who should grant leave only when sc,tisfied that it is in the interest of justice to do so. It 11ay be argued 1 · like in this case, that souetiL1es the Judc;e w:w is to grant leave is a judge in his own cause in thct if he has dealt with the appeal c.nd refuses leave it would 8.pJear us if he: has decided that his judgment is infallible. But sv.ch ,an argument should not deter a judge from refusinr leave to appeal whenever he deens ) it fit to do so. It appears that the trinl Court did not .explnin to the appellant the Deaning of the 1:iaintenance order for he wants·. •to know, in his ground of appeal, why the trial Court fined him the shs.300/= per month. The record is silent on the facts thnt the trial court took into considerc.tion in o.ssessing the 3mount of the maintenance order. Therefore apart from saying that the Daking of a no.intennnce order was within the jurisdiction of the trial Court, I ca.'1!lot go further to say that the amotmt was fair or not. In nny case this kind of order is reviewnble by the trial court. The appellnnt is therefore at liberty to apply to the same court for review of its order. The appeal is for the o.bove reo.soi'lS dismissed with costs. M. P~ K. KIMICHA JUDGE Dar es Sala8.fil 1/9/81 I hereby certify that the foregoing is a true and correct copy of the original. I df' /'" - ,.-, _}J f:;,,.:v-...4w-,/JI) I h1 REGISTRJill _,i. / Dar es 3nlnon D.h.TE: •. , , •• ·•• • ••• • • • •••••••••• •