Yohani Fortunatus vs Danisl Slimay ((PC) Civil Appeal No. 52 of 1994) [1999] TZHC 91 (26 October 1999)

IN TID:: HIGH COURT OF TAWZAl'IA AT DAR E.:i SALAAM · (PC) CIVIL .APPEAL NOo •• ,." « •••. 52 of 1991+ YOHAJ\rr FORTUN/..TUS ••••••••••• cooo APPELLANT .'ERSU.S I SIIMAY ••••••••••• ~ • • • • • • RSPO!l,'TIENT J t; Tl G M E N T The applic:mt, Daniel Siimay has filed 2. Chamber Sum.mans under Sectio:ii 5(1) of the Appellate Jurisdiction Act No. 15/1979 and_Rules 43, 3(1)(e) of the Tanz,ania Court of Appep.J. Rulcs 1 1979 for orders that:- (a) (b) This onourable court be pleased o grant the applicant leave to appeal to the Court of Appeal of Tanzaniao Costs of this application he deponed in hi,s paregraph 3 that hi;:; :i 1itended appeal. has overwhel.ming chances of succeos as ' his intended appealo He did not mentio:r that point of ].E,w and in the other paragraphs of the affiriavit, frod; ;}::•.r:·agraph number 4 to 9 he was challenging the decision cf.this court 0n points of facts,. He made written submissions in supp0rt of the application and Dr. Lamwai learned counsel made written s1.c'ornissions on behalf of t1·:0. respondento It is concc_edecl by both pa.rtiGs that this is a third _appeal 0 The case commeced at Turiani Prima::.y Court as a civil case No 83/-;i.992., The appellant was not sstisfied by the decision of the Primary Court., He appealed to the Morogoro District Court., The appeal was dismissed and then he appealed to the Hi½h Court were the appeal was dismissed for the second timeo He now wants to reach the apex of the judicial system of this country. Whereas there are no huddles in appealing from the decision of the primary court or the that of the district court to the High Court, such huddles do exist on appealing to the court of Appeal on cases origin 8

ting from primary courts. The Appellate Jurisdiction Act, No. 15 of 1979 for which gives, the right of appeal to the Court of Appeals, makes it not a automatic / procedure in prefering s'..l.ch appeals to- the Court of Appeal on matters

• 2 ... originc-:iting from a primary courtg ;ection 5(2) (c) of the said A•: provides that:- 11 No appeal shall lfo against any decision or order of the High Court in proceedings under hec:cl. (c) of Part III of the Magistrate Courts Act, 1985 unless the High Court certifies that a the.t a point of Lai,; is involvec 1 in the decision or ord-e:z; 11 • Part III (c) of the Magistrate Courts ·Aot, 1985 deals with appeals and rcvisional jurisdictions oi' the High Court on matters originating from in prirrwry courts. 'I'he 8 pplication before me is on a matter originatinG in a primary court, so the setion 5(2)(c) of the • Appellate Jurisdiction Act 1 15/1979 is sgurely in is.sue .. Thus in order that leave is granted to the applicant to appeal to the Court of Appeal against the decision of the High Court, there must be a certificate f:r:om the High Court certif'.ying that tl1ere is a po:,,:,. o:f law involved in the decision,. Appeal, he is now seeking for the sz.i0. ·:srtiffoate that a point of law is involved. I have gone tl:1rougl1 the e.ffirl.avit of the applicant in case I would come across a point of law invoJ.ved in the intended appeal but I hav~ failed to trace.. Paragraph:.:: 1 1- to S of the applicants affidavit deal with points of facts only and in the 3rd })aragraph of affidavit, the applicant had just said th;.-,t there is a point of law involv2,:' in the int ended appeal without ment iord.ng it, either in the affictavi t or in his submissions in supro·~t of the a.ffida''i t." It is the dut·y of the applicant to satisfy this court that there is a point of law dinvolved in the intended appeal. So that the High Court could give leave for appeal to Court of Appealo On granting the leave, the High Court must also pin:r,oint the point of law to be determined by the court of Appealo It is not enough for the applicant just to say that the intended appeal ha.s an overwhelming chances of succet1s as there is a point of law which is involved in the intend_r)d appeal. Even conm1onses dictatf3S that such point of law involved be disclosed to th•? Court in order that the court satisfied itslef of the existence of such point of law;, In the absence of 81.lch ci;i.sclosure, the court will be issuing a certificatG on a speculative way of operation.

• 3 - That is not the intention of Section 5(2)(~) of the Appellate Jurisdiction Act, No., 15/1979. In the absence of a point of law disclosed to this Court for determination, I e.1 of the Considered opinion that no such point of lav1 involved in the intended appeal worth of determination by the· Court of AppEall :F'or that re.ason, the application is dismissed v;j_th costso 26/10/99. Coram: A.Ro Manento - Jude CC: Parties - absent Lai Ao Ro MANEMTO - JUDGfi 26/10/99 ·order: The ruling is read in the absence of the Partieso ' They should be notifiedn I certify that this is a true CC?Y of the original.