19921104 TZCA Dar es Salaam

1 ~ IN THE COURT OF APPEAL OF T~"'lZANIA Ki DAR EB S4LU,ti CIVIL APPLICATION HO. 32 OF 1992 In the Natter of an I.ntended ~ BLTtm~lJ MOIIJJfaD li.DINANI • • • .. ' ' • J.PPLI~'r 110II.ll.l iliJ>. ~El'WJI.. - • • • • • , • • • RESPONDII:Wr ,- (1:..ppl'ioat ion :for te«v-e t<,. ~ .flJOtll. the Judgement of the Irigh COUI:t;. -of · Tanzania at Dar es Salaam) (Rubama, J ,) dated the' 6th day of Ma.}" 1 1992 ·...,,. _.T in (PC) Civil 4,ppeal llfo'-86 of 1~1 RULING ;rn this .a.pplice.tion, the .appli.oan~ ~o.b.amed. ~ sought to mov~ this Court for an order that he be granted leave tq. appeal to the Court of Appeal against the. whole decision o~ th.e High Cow::~ of Tanzania in Civil Appeal Ho. 80 ot· ~~1,. ~n. the grou11dJ3 t11at points of law of general publi~ 1nte.rest a.re involved, namely, whether the proceedings .of the Prima.r.y CQurt not tal:en under oath were 11ot bad in lavtij whethel' the w,enduct of th.e -~rial Gou.rt d.ecyi.ng him th~ l'ight t1l call his .witnesses was not bad in law or imjuclioial and whetlle,J: bQth the trial Court and the High Court did not err in. law in acting 011 eVidene& ~ot tendered before the said Courts and .ag,ajJ1st ·;;b.e weight of evicl.enca ~ be.tcn,e them-, The original dispute or su:i;i; between the applicant· and the respondent was commenced in the Primary Co~ at . t .. jl~eni, in th-9 oi.%'01.\l:!lJitil~ t~_.i,»ooma'2.f~a and.. deoj_siol\ ... ; .,i 2 of the High Court against which the appeal to this Court is sought were tu1der Head (c) of Part III of the iViagistrates 1 Courts Act. The appeal against that decis'ibil to this Court is t.!.iere:f'ore governed by the provisions and conditions in Section 5 (2) (o) of the Appella:'ce Jurisdiction ii.ct 1979,: Under these provisions, the applicant applied to the High Court for Jeave to u,pp-ea'.!. to this Court against the decision of Rubama$ J.o dated 6th Ha.v, 1992 and a certificate that a point of law is involved in ·'tihe decision. That application was heard and rejected by Bahati, J~ on 11/9/92, the learned judge holding after considering all thr:: :,:,elevant points 8 "There is really nothing to go before the Court of L.ppeal in Il\Y considered opin5.on and nothing to certify as a point of 1aw.. 11 In other words the IIigh Court r.c.:fused to issue a cerlifica·be under .Section 5 (2) (c) of the ,appellate J"1risdiction /:..c-':, that a point of law is involved in the decision., The applicant in the p.resent applica.tion is virtually appealing ci.gainst the decision of Dahati, J • The question therefore is whether this Court on an application before a single judge has the power to issue a certificate referred to under Section 5 (2) (c) of the Appellate Jurisdiction tat ► This Section proVid.es~ "5(2) Notwithstanding the provisions of sub-section (1) g (c) no appeal shall lie against any decision or order of the ITigh Court in any proceedings under Ticad (c) of Pa.rt III of the Magistrates' Cou1,..~s i..ct 1963 1 v.n!-.,~2 the High Court certifies tl1a,t U.Qint .£f. law is involved in the decision or ordG.t', 11 Under these provisions the Iiigh Court is the basic ce:..- .. ..:. ....ying authority, with the result that if an a.pplicc>.,nt feels aggrieved by the decision of the High Cour-i; 1~efusing to certify ·iihat a point of 1.a.~·: i l'l invol Ved, his remedy is to appeal to this Court., He cannot proceed b;y Iiling another 3 application to this Court. There is no co:·',>. rr.cnt jurisdiction. 1 For these reasons, this application is incompetent and it is dismissed. • Delivered in C~1aJI1bers a:c Wi.R BB SJ,Li:..bM ·~.his 4th day o:f November, 1992, I certify that this is a true copy of the original-, Jzf;K_J~-✓ ( !uj!;~ ICit~.::CCCL·.:·~~ . . SENIOR DEPUTY RiJX}ISTRt.R _ _ ._.,.,...........- . •...~----- <,..a•~-:e-.,._~.? ...-. .t ... ..._..,_....... ~ .. ~..•• \