20010330 TZCA Mbeya

THE COURT OF APPEJAL OF TL I CIVIL APPLICATION I'BY M42D OF 498 ETEN N:D3ENI PPLICiNT ND * SiWSONiI3INDI •...s.i..,eeeo.e,èo...,..e RSPODENT (Application from the decision of the High Court of Tanzania at IV.beye) Dated L.th ust, 1998 in (PC)Civil ea1Nof 1224 U L I Np J. This is an application for leave to appa1 to tk Court 4 terms of rule 43 (b) of the Court Rules, 1979, The appli&aat L moves Wilson wanibeni, by Botice of rationLthe Court for an order that Leave be granted to appeal to the Court of Appeal of Tanzania on point of law. The application is supported by an affidavit sworn y th applicant. In the affidavit, the applicant avers that there is a point of law involved worth consideration of the Court. He also seeks to fault the learned judge for hearing the application for leave to atpeal to the Court fr'm a decision against which it is intended to appeal. He further states that another judge couid have heard the application. ... ./2 2 The applicant was unrepresented. When the application was called on for hearing, the applicFnti apart from raising issues which would arpropriately e raised on appeal, he had nothing more of substance to support the application. He kept on insisting that it was the respondent who was responsible for the loss of his property while he was held in custody. When the Court reminded him of the fact that notice of appeal had not been filed, he had nothing to say. The respondent was also not represented byccunsel. He opposed the application. He said, the decision of the High Court (Iwipopo, J.) was correct in dismissing the application for leave to appeal1 According to the applicant, the respondent has no legal point to be considered on appeal. Furthermore, he urged the COULt to dismiss the application because the applicant is resorting to the application as a delaying tactic. Consequently, the respondent said he has incurred a lot of expenses since 1994. To start with, this application suffers from one legal defect. That is, there is no nOtice of intention to appeal filed in respect of the High Court decision of 29.5.1997, against which the applicant intends to appeal On 3.6.1999, when the same matter came before my Brother Samatta, J.A. (as he then was) now the Chief Justice, the hearing was adjourned in order to enable the applicant to regularize the position in this regard. To date, now in 2001, the position still remains the same. It is conceivable that, perhaps this is so because the applicant is a layman. All the same, legal requirements, have to be conlied with. In the circumstance, in the absence of notice of appeal 3 - filed, even if I was Irfinde io grant the appiication this wou'd, at the end of the day, serve no useful purpose. There would be no basis upon which this appeal would come to this Court. There is yet another aspect which in my view, is equally of fundamental irortance D As seen from the notice of motion and the supporting affidavit, the applicant seeks leave to appeal because there is a legal point involved for consideration of the Court It is to be observed that the intended apeal to the Court would be a third appeal. This, it is trite law, requires certification of a point of law by the High Court. The High Court dismissed the application on the ground that no point of law worth consideration of the Court was involved. The High Court having refused to certify the point of law, the applicant cannot come to this Court for certification of a poiit of law. Under section 5 (2) (c) of the Appellate Jurisdiction Act, 1979 7 it is the High Court alone which has jurisdiction to entertain an application for a certificate on a point of law on a matter originating from Primary Courts to the Court. In the case of Omar Yusufu V. Mwajuma Yusufu 4I9837kthe Court dealt with this point. As regards the point that it was an error for the learned judge to hear on application for leave to appeal against a decision in which he was involved, this is entirely without merit. I dismiss this ground. For these reasons, the application is dismissed with costs. 4 - DThD at 3EYA this 30th day of 1"ierch, 2001. D. Z. Lubuva >)i JU3TICE OF APPEAL I certify that this is a true copy of the original. ( A. GIwarija ) DEPUTY REGISTRAR