20160428 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA -...,.,,,; ATARUSHA MISC.CIVIL APPLICATION NO. 60 OF 2016 (Arising from the High court of the united Republic of Tanzania, district registry of Arusha. At Arusha in civil Appeal No 16/2016 and order of the Resident Magistrate court of Arusha at Arusha in · the employment cause No 32 of 2003) JIREYS NESTORY MUTALEMWA.....................................APPLICANT VERSUS NGORONGORO CONSERVATION AREA AUTHORITY' ................................................ RESPONDENT Date of last order 21/04/2016 Date of Ruling 28/04/2016 RULING F.H MASSENGI, J The applicant JIREYS NESTORY MUTALEMWA lodged this application under the provision of Section 5(1) (c) of the Appellate Jurisdiction Act, Cap 141 R.E 2002, Seeking for the following orders:- (a) The applicant be granted Leave from the hon. High court to appeal to the Court of Appeal of Tanzania certifying that there are points of law involved in his appeal to the Court of Appeal of Tanzania against the entire judgment in 1 I I I I the Arusha High court District Registry arising from the high court judgment and decree 1n the Appeal No 16/2015 before her lordship(sic) judge Ms. S.C. Moshi dismissing the appeal challenging preliminary ruling and order of the Arusha Magistrates court in the employment cause No 32/2003. (b) Costs of this application are provided for. The application is supported by the affidavit of the applicant one 1 JIREYS NESTORY MUTALEMWA,In this application the applicant appeared in person unrepresented while the r¢spondent was represented by Mr. Sambo learned advocate.Arguing the application, the applicant prayed for his affidavit to be adopted and form part of his submission, he further submitted that the decision of Hon Moshi, J was based on a law which was not in force, he was not satisfied with!the said decision that is why he filed ' this application for leave to appeal to the Court of Appeal. Replying to the above submission the respondent counsel argued that the applicant has not establish any arguable reason to be granted ' leave to appeal to the Court of Appeal, he said that before Hon. Moshi, J the applicant was heard and the court in its decision did well discuss the applicant's submission which was an alternative to oral submission. Mr. Sambo further submitted that the court's decision in which the applicant is aggrieved with was based on what was decided in the decision of Employment No 32/2003 in the Resident Magistrate Court and since the I '' 2 ' . matter was struck out in the Resident Magistrate court then it was not appealable. I have considered the parties oral submissions to this application, It is trite that section 5 (1) (c) and ( 2) of the Appellate Jurisdiction Act Cap 141 do not provide for conditions to be considered by the court in granting application for leave to the Court of appeal however, essential conditions are laid down by the case laws. In civil application No. 138 of 2004 British Broadcasting Cooperative Vs Sikujua Ng'maryo, the Court of Appeal at page 6 of its ruling held that: "It is within the discretion of the court to grant or refuse leave. The discretion must, however judiciously exercised and on materials before the court 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 prima facie or arguable appeals.... However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical, no leave will be granted" Further it was stated by the Court of Appeal in the case of Gaudensia Mzungu vs. The I.D.M Mzumbe, Civil Application No. 94 of 1999 that; "............ .leave is not granted because there is an arguable appeal. There is always an arguable appeal. What is crucially important is whether there is a prima facie ground meriting an appeal to this court'~ 3 ♦ Having referred to the cases above and the case at hand, I find there are no contentious issues which need an attention of the Court of Appeal, the applicant in his affidavit as well as his submission did not manage to show a prima facie ground meriting an appeal to the Court of appeal. Therefore I hereby dismiss this application with costs. Order accordingly. (SGD) F.H MASSENGI JUDGE 28/04/2016 Ruling delivered in Court this 28th day of April, 2016 in the presence of both parties. (SGD) F.H MASSENGI JUDGE 28/04/2016 I hereby certify this to be a true copy of the original. \ DEPUTY REGISTRAR ARUSHA FHM/SKY 4