mwingo vs mapande 2005 tzca 13 23 february 200
The respondent failed to obtain a certificate on a point of law, an essential step required for the appeal, thus justifying the striking out of the notice of appeal.
Source-derived case information.
- Citation
- mwingo vs mapande 2005 tzca 13 23 february 200
- Parties
- Applicant: Said Omary Mwingo; Respondent: Yusufu Omary Mapande
- Court
- TZCA
- Jurisdiction
- Tanzania
- Judgment Date
- 1 January 2005
- Procedural Posture
- Civil Application / Application for Striking Out Notice of Appeal
- Outcome
- application granted
- Legal Topics
- Striking Out Notice of Appeal, Certificate on Point of Law, Failure to Take Essential Step
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Omary Mwingo
Applicant
Yusufu Omary Mapande
Respondent
Procedural Posture
Civil Application / Application for Striking Out Notice of Appeal
Legal Issues
- 1 Whether the respondent failed to take an essential step in prosecuting the appeal by not obtaining a certificate on a point of law as required by law
Ratio Decidendi
The respondent failed to obtain a certificate on a point of law, an essential step required for the appeal, thus justifying the striking out of the notice of appeal.
Court Disposition
application granted
Orders
- Notice of Appeal filed on 19/6/2001 is struck out with costs
Full Case Text
Judgment text and source record
1 paragraphs
IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 105 OF 2002 In the Matter of an Intended Appeal BETWEEN SAID OMARY MWINGO………………………………………. APPLICANT AND YUSUFU OMARY MAPANDE………………………………. RESPONDENT (Application for striking out Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Ihema, J.) dated the 8th day of June, 2001 in (PC) Civil Appeal No. 135 of 1999 ------------ RULING MSOFFE, J.A.: This is an application for striking out a Notice of Appeal lodged on 19/6/2001 against the decision of the High Court, Ihema, J. in (PC) Civil Appeal No. 135/99. At the hearing of the application the applicant chose not to address the court at length. All he said was that he was relying on the contents of the affidavit filed in support of the application. On the other hand the respondent, at first, appeared to be opposing the application. On reflection, he changed his 2 mind and submitted that he was no longer opposing it. The record shows that the judgment in (PC) Civil Appeal No. 135/99 was given on 8/6/2001. The notice of appeal was lodged on 19/6/2001 i.e. within time. The record is also clear that the respondent applied for copies of proceedings and judgment on 12/6/2001. On 11/3/2002 the District Registrar informed him that the above documents were ready for collection on payment of the necessary court fees. Thereafter, the respondent did not take any further action. An appeal against the above mentioned judgment requires a certificate on a point of law in line with the express provisions of S. 5 (2) (c) of The Appellate Jurisdiction Act, 1979. Todate, no such certificate was ever applied for and granted. Thus, an essential step envisaged under Rule 82 has not been taken. Due to the respondent’s failure to take an essential step, it will follow that the application has merit and it is accordingly granted. The Notice of Appeal filed on 19/6/2001 is struck out with costs. DATED at DAR ES SALAAM this 23 rd day of February, 2005. 3 JUSTICE OF APPEAL