Omari Yusufu v Mwajuma Yusufu and Another 1983 TLR 29 (CA)

OMARI YUSUFU v MWAJUMA YUSUFU AND ANOTHER 1983 TLR 29 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mwakasendo JJA, Makame JJA and Kisanga JJA

28 November 1983

CIVIL APPLICATION 3 OF 1983

Flynote

Civil Practice and Procedure - Appeal originating from Primary Court - Whether decision of the High Court in matters originating from the Primary Court appealable - Appellate Jurisdiction Act, 1979. Civil Practice and Procedure - Appeal originating from Primary Court - Certification of point of law - Whether Court of Appeal has jurisdiction - Rule 46 (3) Court of Appeal Rules.

-Headnote

The applicant applied for extension of time to file an application for leave to appeal and for leave to appeal to the Court of Appeal. An application to the High Court by the applicant for a certificate that a point of law was involved had been refused.

Held: 

(i) Under s.4(2) (c) of the Appellate Jurisdiction Act, it is the High Court alone which has jurisdiction to entertain an application for a certificate that a point of law is involved so that matters originating from the Primary Court can go to the Court of Appeal;

(ii) rule 46(3) Court of Appeal Rules is ultra vires the Appellate Jurisdiction Act in so far as it envisages a further application for the certificate to the Court of Appeal following a refusal by the High Court to grant the certificate.

Case Information

Application struck out.

No case referred to.

Rwebangira for the applicant.

[zJDz]Judgment

Kisanga, J.A. read the following order of the court: This is an application for the extension of time to file an application for leave to appeal and for leave to appeal to this Court.

We have to point out at once that the application is somewhat confused and completely misconceived. The proceedings leading to the application relate to a matter originating from the Primary Court going to the District Court and then to the High Court. An appeal in such a matter therefore is governed by the provisions of section 4 (2) (c) of the Appellate Jurisdiction Act, 1979 which provides: (2) Notwithstanding the provisions of subsection (1) C

(a) ...

(b) ...

(c) No appeal shall lie against any decision or order of the High Court in any proceedings under Head (c) of Part III of the Magistrates' Court Act, 1963, unless the High Court certifies that a point of law is involved in the decision or order.

The record shows that an application under this provision was made to the High Court for a certificate that a point of law was involved, but the application was refused. Mrs. Rwebangira appearing for the applicant before us stated in effect that she was now asking this Court to grant such a certificate, adding that she was relying for that application on the same provisions of section 4 (2) (c) quoted above.

On a true understanding of the provisions of section 4(2) (c) of the Appellate Jurisdiction Act, we think that it is the High Court alone which has jurisdiction to entertain an application for a certificate that a point of law is involved. The Court of Appeal has no concurrent jurisdiction over such an application. It is to be noted that section 4(2) (c) curtails or restricts the broad power conferred by section 4(1) (c).

This latter provision confers broad powers on the High Court and the Court of Appeal alike to grant leave to appeal to the court of Appeal in certain matters. But section 4(2) (c) clearly seeks to H restrict that power to the High Court alone. In other words, had section 4 (2) (c) not been enacted, then both the High Court and the Court of Appeal would have jurisdiction to entertain the application for a certificate that a point of law is involved. But the enactment of this provision was clearly intended to confer on the High Court alone the I jurisdiction to entertain such application. To construe section 4 (2) (c) otherwise would clearly make that provision superfluous in view of section 4 (1) (c) which confers on both the High Court and the Court of Appeal broad powers to grant leave to appeal to the Court of Appeal. It may very well be that where, as here, the High Court refuses to grant a certificate that a point of law is involved, the matter may probably be brought before the Court of Appeal by way of B appeal against the order refusing to grant such application, but we are of the settled view that the matter could not be brought here by way of application or further application.

In holding this view we are aware of the provisions of rule 46(3) of the Tanzania Court of Appeal Rules which appear to suggest that a matter such as this one could be brought to this Court by way of an application. The said Rules are made under the Appellate Jurisdiction Act 1979 and rule 46(3) provides that:

(3) Every application for leave to appeal shall be accompanied by a copy of the decision against which it is desired to appeal and, where application had been made to the High Court for a certificate that a point of law is involved or for leave to appeal and the application has been refused, by a copy of the High Court refusing that application. E

This sub-rule clearly envisages that where the High Court has refused to grant a certificate that a point of law is involved, the aggrieved party can seek redress by way of a further application to the Court of Appeal. But this contravenes the provisions of section 4 (2) (c) of the Appellate Jurisdiction Act set out earlier which, as has been shown, confers on the High court alone jurisdiction to entertain such application.

Thus to the extent that the sub-rule envisages further application to the Court of Appeal following a refusal by the High Court to grant the certificate, the sub-rule is ultra vires the parent Act, in which case the latter prevails.

In the result we are satisfied that this application is incompetent and is accordingly struck out. We make no order for costs as the respondent did not appear.

Application struck out.

1983 TLR p32

A