Nyamshora Ikengeza vs Wanzita Kibeyo (Misc. Civil Application 132 of 2000) [2000] TZHC 30 (31 July 2000)

O THE HIGH COURT OF TANZANIA AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO. 132 OF 2000 ORIGINATING FROM PC .APPEAL NO. 101 OF 199^. ORIGINAL MUSOMA DISTRICT COURT IN CIVIL APPEAL NO. M OF 1991 * FROM ZANAKI PRIMARY COUnT CIVIL CASE NO. 67 OF 199^ NYAMSHORA I K E N G E Z A .................... APPLICANT Versus WANZITA KIBEYO ## .. ## w *• •« .. RESPONDENT R U I T " T G NCHALLA, J o This is an application cited as an application for leave of this cour; to appeal to the Court of Appeal of Tanzania. The application purports to have been made under section 5(2) of the Appellate "Jurisdiction Act No. 15/^979 smd under Rule Mf of the Tanzania Ccurt of Appeal Rules, 1979« The ap>lication is supported by the applicant’s affidavit which he elt:ted to adopt at the hearing of this application because the 'espondent did not seek to oppose the application# In dete;- nining this application I have first considered whether reall ' this application can lie to this court under section 5(2) (•„ the Appellate Jurisdiction Act No# 15/79# That section provicos: ”5(2) Noi withstanding the provisions of subsection ( 1 ) - (a) sxcept with the leave of the High Court, no appeal shall lie against - (i) r . n y decree or order made by the consent of ■ : h e parties; or (ii) rjny decree or order as to costs only where the costs are costs in the discretion of the High Court; (b) (not relevant), --------

2 'The decree in appeal which tl:o applicant wishes to appeal against in this r.a t: ter is not one of the decrees as are detailed in subse ction ( ? ) of section 5* 3oy I would find that this application has been pr-ferred undur a ’ vronc --^on of the law* That finding however- does not vitiate the application, as the wrong citation of a provision of lav/ in filing a nat:er to the court, does not render the matter legally incompetent unLess the court has no jurisdiction to^ "enteric in the matter filed tc r t e I am convinced that this court has' jvrisch ch -ion to ’ -entertain thi.s application. I am also convi nced i r . n l 5y 3 c,ppl f . c c . v l o z . .~c have been properly filed to .'this *court j rider section 5(2) (c) of the Appellate Jurisdiction Act, *I9?9 which c-rovidecs

• l 5v.2K?) no appeal shall lie against any decision or order of the Pi.£h vourt in any proceedings under Head (c) of Part III of the > k ’ istrates* Courts Act* 198^,' unless the High Court c:trtlf.cs that a point of a p w is Involved in the decision- -- or o.cde v J So, in pi T .~c i.ple this application is for a certificate of this court: t h L . t poi .ts of lav are in the intended appeal, which are worthy of i s decision of the Court of Appeal* ‘ ijadosa, th respondent did not oppose this application. But on a careful sttly of the judgment of this court by my learned brother Judge Ml r a r a . (a£ he tier, was), coupled with the available evidence in the : . r i a l L court records T find no point of law which is yet to ui- do Tiers..-d arid whic^ merits the decision of the Court of Appeal „ Ac cord in ; . ; y, it is m 3 - considered view that this application has n c i-orit in It n, I d:.smiss it entirely with costs* I order accordingly*, / JUD3E 2 V 7 :720Q0 ••*/ 3 »

3 3V7/2000 Coram s M.D, Nchalla, J* Appliesnt - present in persen Respondent — Absent C C • Restitut-f Court: Ruling delivered in open court at Mwanza^ in the presence Df the applicant, and in the absence of the !espond©nt vho did not attend court to-day with due notice of the delivery of this ruling. This the 31 et day of July, 2000 Right of appeal explained 31 / 07/2000