Nyamshora Ikengeza vs Wanzita Kibeyo (Miscellaneous Civil Application No o 132 of 2000) [2000] TZHC 531 (31 July 2000)

IN THE HIGH COURT OF TANZANIA AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO o 132 OF 2000 ORIGINATING FROM PC.,APPEAL NOo 101 OF 1994. ORIGINAL MUSOMA DISTRICT COURI' IN CIVIL APPEAL NO. 41 OF 1994 FROM ZANAKI PRIMARY 000.t\1 CJ:VI'w Ct •. 53 NO. 67 OF 1994 NYAMSHORA IKENGEZA 0. •• • • •• •o •• APPLICANT Versus WANZITA KIBEYO •• •• •• •• : •• •• •• RESPONDENT RULJ1\Tn :.:.--··. NCHALLA, Jo 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 Turisdiction Act No. 15/1979 and under Rule 44 of the · Tanzania Cuu-t of Appeal Rules, 1979. The ap_ilication 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 detej 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: 11 5(2) Noi 1rithstanding the provisions of subsection (1) - (a) ~xcept with the leave of the High Court, no . .:-1.ppeal shall lie against - ( i) :·.ny decree or order made by the consent of f;he parties; or ( ii) rmy decree or order as to costs only where the costs are costs in the discretion of the High Court; (b) - (not relevant). ------•."

.... 2 ':i:.'hE< decree in· appeal which the applicari{cwishes to appeal againet in this rintter is not one of. the deees as ar: detailed :in subse- ction (?.) of section 5.. So 9 I would find tha.t this application has been p:r0farred under a wrong ""l'.'0ri,:don of .. the law· That finding however does not vitiate the al)plication, as the wrong citation of a provision of law in filing a matter to the court, · does not render the matter· le 6 ally incompetent unless the court has no jurisdiction . to ent:el,'t:2:f.n the rmtter filed to He I run convinced that this court .. b1l.la !t:rfk·dic-t ion to · entertain this application. I am.· also convi- ... ··· · ncd 'fh;:,;, -1:1,:Ls applfoation .ought -to have been t)roperly filed to - . . . ·' . . th:1-5.:cov.1:•i ,1J1er_ ection 5(2)(c) of the Appellate Jurisdiction Act, '-\·" - ,-·: ·. ·.:·,:,, .. -- ·- 1979 wriwh ;.rov:i.des: . :. H5(2)C:) no appeal shall. 1ie against any decision or order of the High ;:our·t i:r: any proceedings 'under Head ( c) of Part III o! the Mc, !istrates• Co'!L:tE: Act· ·1984, unless the High Court··:· CH·tif: es that a point of JL,.w fa involved in the decision So, i..l'J. pi· bcfple this applfoa.tion is for a certificate of this court that poi t".;s of law are .:...:.:0:..~ d in th-2 intended appeal~ which are wortby of l.1e decision of the Court of Appeal. Indeed, th respondent did not oppose this application. But on a careful st-i;ly of the judgment of this court by DIN' learned brother ,Judge Mn rera (as he then was), coupled with the available evidence in the :rial court record. 9 I find no point of law which :fs yet to bo rlet:erm:_ :.:;;d wi...d whic:n mex,its the decision of the Court of Appealμ Accordin ::t..y, it is my con..sidered view 1 that this application has no ffi(:1rit in lt tf I dismiss it entirely with costs. I order according1yo A pp}icat:io:1 diBmissed" W_,; /, . f!f2.R .MitD., Ni.., JUDGE '2~177'2000

3 ......... '51/7/2000 Coram ~ M.D., Nchalla, J. Applict,nt - present in perscn ReSpOndent - Absent • c .c. Resti tutr Court: AT MWANZA Ruling delivered in open court at M~anza; in the presence ,f the . applicant, and in the absence of the respondent 1 •ho did not attend court to.-day with due iJ.otiiJe of the delivery of this ruling. Thie the 31st day of July, ~000. Right of appeal explained. JUDGE 31/07/2000 ,.. I..