mubezi jonathan kandaga vs hamis mohamed said 2023 tzhc 23699 19 december 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 436 OF 2023 {Arising from the High Court of Tanzania, Dar es Salaam District Registry, in the (DC) Civil Appeal No. 107 of2022} MUBEZI JONATHAN KAN DAG A............................................................APPLICANT VERSUS HAMIS MOHAMED SAID ................................................................RESPONDENT RULING 19h December, 2023 BWEGOGE,J. The applicant herein above named, has filed an application praying for leave to appeal to court of appeal after being aggrieved by the decision of this court in (DC) Civil Appeal No. 107 of 2022. This application is brought under s. 5(l)(c) of the Appellate Jurisdiction Act [Cap 141 R. E. 2019] and supported by the affidavit of the applicant herein. The background of the matter as entailed by the affidavit supporting the application herein is as follows: The applicant was the defendant in Civil i । Case No. 106 of 2020 instituted in Hala District Court by the respondent herein. The court decided in favour of the respondent herein. The applicant was aggrieved by the decision of the trial court and appealed to this court vide (DC) Civil Appeal No. 107 of 2022. This court upheld the trial court decision. Hence, this application. The respondent was represented by Mr. Godian Mugusi, learned advocate whereas the respondent fended for himself. The matter was heard by written submissions. Before I composed the ruling, I became aware of the amendment of section 5 of the Appellate Jurisdiction Act [Cap. 141] brought by section 10 of the Legal Sector Laws (Mise. Amendment) Act No. 11 of 2023 which came into force on the 01st December, 2023 which in substance has done away the requirement of leave to appeal to the court of appeal. As the applicant herein is a layman, I called upon the respondents counsel to address this court on tenability of this matter before this court. The respondents' counsel had acknowledged to have gone through the amendment and subscribed to the fact that the amendment has done away with the requirement to appeal. That the commencement date of the amended law is 01st December, 2023 with retrospective effect. The counsel 2 opined that this matter is no longer tenable before this court. The applicant had nothing to comment and prayed for directives of this court. The recent amendment of section 5 of the Appellate Jurisdiction Act [Cap. 141] brought by section 10 of the Legal Sector Laws (Mise. Amendment) Act No. 11 of 2023 which came into force on the 01st December, 2023 provides thus: "Section 10: The principal Act is amended in section 5 (a) By deleting subsection (1) and substituting for it the following: (1) In civil proceedings, except where any other written law provides otherwise, an appeal shall He to the Court ofAppeal against every order or decree, including an ex-parte or preliminary decree made by the High Court, in the exercise of its original, appellate orrevisiona!jurisdiction." The apposite interpretation of the afore revisited provision was made in the recent case of the Apex Court in Petro Robert Myavilwa vs. Zera Myavilwa & Another (Civil Application 117 of 2022) [2023] TZCA 17947 whereas the Court expounded: ", the changes have done away with leave requirement for one to appeal to Court against the decision of the High Court regardless of whether the impugned decision is an order, decree, an ex-parte decree or a preliminary decree when exercising its original, appellate or revisiona! jurisdiction. In 3 other words, obtaining leave has ceased to be a requisite before one can appeal to Court effective the 1st December, 2023." Further, the court observed: "The changes, being procedural law which its applicability has retrospective effect, has a bearing to the application at hand in my view. As such, this application has been overtaken by event and the only remedy is to strike it out as I hereby do." Based on the above guidance, I likewise, find the application herein for leave to appeal to the Court of Appeal against the decision of this court superfluous. It is patently obvious that the matter herein has been taken by event. In view of the foregoing, I hereby find the matter herein untenable in this court. Consequently, I hereby strike out the matter herein. Each party herein to shoulder his own costs. So ordered. DATED at DAR ES SALAAM this 19th day of December, 2023. 4