20100511 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MSOFFE, J.A, MBAROUK, J.A, And BWANA, J.A.) MZA CIVIL APPLICATION NO. 1 OF 2008 DICKSON RUBINGWA . ■■ ■■ •• ■■ •••••• ••.• ••••••••••••••••••••••• I •• ■■■■■■ ••• APPLICANT VERSUS PAULO LAZARO .............................................................. RESPONDENT (Application for Revision of the Ruling of the High Court of Tanzania at Mwanza) (Mackanja, l.) dated the 05th day of November, 2007 in (PC) Civil Appeal No. 69 of 2002 RULING OF THE COURT 8th & 11th May, 2010 MSOFFE, l.A.: From the record before us it is evident that the applicant was successfully sued by the respondent before the Mwanza Urban Primary Court in a claim of a sum of shs. 1.406, 300/= as damagegs. He made a first appeal to the District Court at Mwanza. He lost. Undauntedly, he made a second appeal to the High Court at Mwanza where in a Judgment signed by Masanche, J. on 16/02/2006 he also lost. On 12/06/2006 he lodged a notice of appeal against the decision of the High Court. A look at the record shows that the notice of 1 appeal is still intact in that it has not been struck out todate. In the meantime, on 28/07/2006 the applicant filed an application in the High Court seeking "leave" to appeal to this Court. In a Ruling signed on· 5/11/2007 and delivered on 12/12/2007 the High Court (Mackanja, J.) dismissed the application. The applicant has now come to this Court in this application for revision. According to the citation in the notice of motion it is apparent that the applicant wants us to revise the Ruling of Mackanja, J. dated 5/11/007. However, in the body of the notice of motion it is also apparent that he wants us to revise both the Ruling of Mackanja, J. and the Judgment of Masanche, J. dated 16/2/2006. As it is, it is not clear to us as to which decision exactly the applicant wants us to revise! On this point alone, we could strike out the application on the ground that the Court has not been properly moved. However, in the interests of justice we will proceed further and show other shortcomings in the application. 2 At the hearing of this application the applicant told us that his interest is to have the decision of Masanche, J. revised. That may well be so. But, the applicant should remember that he has already lodged a notice of appeal against that decision. That being the case, he cannot pursue an appeal and revision at the same time. While we are on this point we wish to add one other point. The point is as follows. The general rule is that where there is a right of appeal there is no right of a revision. In Transport Equipment Ltd v. Devram Valambhia, Civil Application No. of 1994 ( unreported) this Court started:- "..... .If there is a right of appeal then that has to be pursued and, except for sufficient reason amounting to exceptional circumstances, there cannot be resort to the revsional Jurisdiction of this Court (see also: Moses J. Mwakibete v (i) The Editor- Uhuru; (i) Shirika la Magazeti ya Chama Ltd. (iii) National Printing Co. Ltd. {1995} TLR 34). 3 See also D.P Shapriya and Company Ltd v Bish International B.V, Civil Application No. 71 of 2003 (unreported). This brings us to the final point. As already demonstrated, this matter originated from the Primary Court. Under Section 5 (2) (c) of the Appellate Jurisdiction Act, (CAP 141 R.E. 2002), no appeal lies to this Court in proceedings originating from a Primary Court unless the High Court certifies that a point of law is involved in the decision or order. In this regard, even the application before Mackanja, J. was incompetent in that essentially it was for leave under Section 5 (1) ( c) of the above Act. With respect, the applicant ought to have applied for a certificate and not leave. There is a difference between leave and a certificate. An application for leave is made under Section 5 (1) (c) while an application for a certificates bought under Section 5 (2) ( c). For the foregoing reasons, this application is incompetent. We hereby strike it out with costs. 4 DATED at MWANZA, this 8th day of May, 2010. J. H. MSOFFE JUSTICE OF APPEAL M.S.MBAROUK JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ (J.S~G~ -\J DEPUTY REGISTRA 5