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 D 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. E

-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. F

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 G

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. H

No case referred to.

Rwebangira for the applicant. I

1983 TLR p30

KISANGA JA

[zJDz]Judgment

Kisanga, J.A. read the following order of the court: This is an application for the A

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 B 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 D 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 E 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 F 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 G 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

1983 TLR p31

KISANGA JA

construe section 4 (2) (c) otherwise would clearly make that provision superfluous in

A 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 C 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 D 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

F 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 G 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. H

Application struck out.

1983 TLR p32

A