Nyamshora Ikengeza vs Wanzita Kibeyo (Miscellaneous Civil Application No. 132 of 2000) [2000] TZHC 100 (31 July 2000)

IN THE HIGH COURT OF TANZANIA AT MWANZA MISCELLANIDUS CIVJL APPLICA',rION NO. 132 OF 2000 ORIGINATING FROM PC.,APPEAL NO. 101 OF 1994. ORIGINAL MUSOMA DISTRICT COURI' IN CIVIL APPEAL NO. 41 OF 1994 FROM ZANAKI J?RIMARY CO'JR:r CIVIL CASE NO• 67 OF 1994 NYAMSHORA IKENGEZA o e •• ·1• • •• •• •• APPLICANT Versus WANZITA KIBEYO .~ •• "~ :, i •·· f ·i • • ~, RESPONDENT . , : 1 NCHA.LLA 2 J., This is an application cited as an application for leave of this cour 0 : to appeal to the Court of Appeal of Tanzania. The aPPlicatfon purports to have been made under section 5(2) of the Appellate Turisdiction Act No. 15/1979 and under Rule 44 of the Tanzania Ccurt of Appeal Rules, 1979. The apllication is supported by the applicant's affidavit which he elE: :,ted to adopt at the hearing of this application because the ·espondent did not seek to oppose the application. In dete)t1ining 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 provi<'ns: n5(2) Noi Hith,standing the provisions of subsection (1) - (a) 3xcept with the leave of the High Court, no :1.ppeal shall lie against - ( i) -:.ny decree or order made by the consent of the parties; or (ii) nny decree or order as to costs only where the costs are costs .in the discretion of the High Court; (b) - (not relevant)n -:-----•"

2 - The. decree i.n appeal which t:he applicant wishes to appeal against in th:ts rrntter is not one of the decrees as are detailed in subse- ction (?.) of section 5,. ;3o 9 I would find that this application has been pr•,,fE,rred und8r a wrong -~·".'cnr"'e:-ion of the law. That finding howe-v·e1• does not vitiate the ;J.Ppl:i..cation, as the wrong citation of a provision of law in f ili.ng a matter to the court, does not render the .. ;.. .. .::. ~::.: matter· 1E\1ally incompetent unless the court ·has no jurisdiction · to'·'antet:-i:,,::Ln tha ma.tter filed tc it 6 I run convinced that this court ' ' has·· j(risdic !::ion to 1::~nte:l'."tain this n:ppl:foation. I am also convi- • • ,.- ~ 6 •• • • , • ... • • • <) ,. • ,.. ' • this ·crn.:;;rt ·,1.;.---.der section 5t..2) 1 ,c) of the Appellate Jurisdiction Act, 'i979 v,h:foh .:-,:r.ov:Ldccg 1 •5(2):' ::) no appeal shall 1ie aga:i,nst any decision or order of the E:igh -:ouVi'.: :'!~1 any proceedings under· Head (c) of Part III of certif:, es '!:;hat a point of :LE.;w is involved in the decision···· or orde•} 1 Sos ir1 pr: '...ncJ.ple this appli.cation is for a certificate of this court trw.t poi rts of law are __;,;o:;..-0Li in the intended appeal, which are worthy of -: 1e decision of the Court of Appeal. Inde ➔ d, th respondent did not oppose this application. But on a careful stu ly of the judgment of this court by mu learned brotheT· J\10.ge Mn rera ( as he then was) 1 coupled with the available evidence in the ::r:-iru. court: reccffc. I fjnd no point of law which :ie yet to 0G d.ef;f:rm. :.2-d and wn1.c:l mer•its the dee is ion of the Court of Appeal(, Accordin ::i.y, it is my considered view that this application has no me:r:it in ln, I dismiss it entirely with costs. I order accordi:nglyc Appjicat:Lon d.{smissed" , ,, ... \ ' w~~vu)luiQ& .!.0,. NIA JUD3E 21ift72000

3 31/7/2000 Coram~ M.Do Nchalla, J. Applicent - present in perecn Respondent - Absent C .c • Res ti tu tr AT MWANZA Ruling deliver'ed in open court at Mwanza4 in the presence :if the applict, tmd in the abeee of the re~ondent irho did not attend court to-day with due notice of the delivery of this ruling. This the 31st da.;y of July, lOOO. Right of appeal explained. JUDGE 3'1/07/2000