20040716 TZCA Mwanza3

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IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: RAMADHANI, J.A., MUNUO, J.A. And MSOFFE, J.A.) MWANZA CIVIL APPLICATION NO. 8 OF 2002

BETWEEN JUMA FUNGAMTAMA ....................................................... APPLICANT AND PETRO ALPHONCE ....................................................... RESPONDENT {Application for Revision from the Order of the High Court of Tanzania at Mwanza) {Masanche, J.) dated the 8 th day of July, 2002 in HC Misc. Civil Application No. 99 of 2002

RULING MSOFFE, J.A.: The record before this Court shows that the applicant lost in (PC) Civil Appeal No. 48/1996 of the High Court of Tanzania at Mwanza. In a Judgment dated 31/10/1996, the said Court (Masanche, J.) held that the applicant could not be paid special · damages for performing customary rituals to "appease spirits" for his ancestors' damaged graveyards, before incurring any expenses. Apparently, in that Judgment the respondent herein was cited as the appellant when in fact it was the applicant herein who had preferred the appeal to the High Court. Anyhow, it appears the respondent herein harboured some dissatisfaction with that decision and accordingly filed a Notice of Appeal on 11.11.1996. We may pause here and say that that Notice of Appeal was never pursued todate. 2 In the meantime, on 2.12.1996 the respondent filed an application in the High Court seeking review. In the chamber application filed to that effect it was clearly shown that the review sought was to have the said respondent cited as the respondent in the judgment in (PC) Civil Appeal No. 48/1996, instead of him being cited as the appellant. in an order dated 16.2.1999, Masanche, J. granted the application and ordered correction of the parties' names accordingly. A few months later i.e. on 25.6.1999, the applicant filed a Notice of Appeal against Masanche, J'.s decision of 31.10.1996. Having done

so, it appears he subsequently realized that he was time barred in appealing. So, on 16.2.2001 he filed an application for enlargement of time to appeal. That application was apparently accompanied with another Notice of Appeal dated on the same date (16.2.2001). On 21.2.2002 Nchalla, J. granted the application mainly because it was not opposed. Then, a few months later i.e. on 7.6.2002, the applicant filed an application for leave to appeal against the decision of 31.10.1996. In the affidavit in support of the chamber application it was clear that the said application was predicated, or rather based, on two grounds:- (i) That the Court of Appeal should be given the opportunity to clear the "confusion" in the mix up of names in (PC) Civil Appeal No. 48/1996; and (ii) That there was a point of law fit for consideration and decision by the Court of Appeal. On 8.7.2002 Masanche, J. dismissed the application after he was satisfied that there were no good grounds for granting the certificate. 3 Dissatisfied, on 27.9.2002 the applicant filed this application for "revision" of the above order i.e. the one dated 8.7.2002. At the hearing of the application the parties appeared in person(s). Bearing in mind that they are lay men we took a lot of time, effort and trouble in trying to understand them. In the process, we understood that further to the contents of the affidavit in support of

the chamber application, the applicant was also dissatisfied by the above mentioned citation of parties; and he also wondered why the respondent filed the Notice of Appeal after Masanche, J'.s decision of 31.10.1996. We have given very careful thought to the application. In the end, we are satisfied that it has no merit for two reasons:- One, the alleged "confusion" on the mix up of names was adequately taken care of by Masanche, J. in his order dated 16.2.1999 .. Two, as Masanche, J. opined in his order dated 8.7.2002, the applicant has all along not come up with the point of law, he thinks, is involved in the matter. Indeed, in his affidavit. in support of the chamber application to this Court and also in his oral submission to us, he never disclosed what that point of law could possibly be! Surely, in the absence of such disclosure, we cannot speculate in his favour. For the above reasons, we are of the considered view that there is nothing upon which this Court could exercise its discretionary power of revision in favour of the applicant. The application is dismissed VJith costs .. DAT.ED at MWANZA this 16th day of July, 2Q04 .. · A. S.L. RAMADHANI.

JUSTICE OF APPEAL ,. ~/ E. N. MUNUO ·

JUSTICE OF APPEAL ·. . . "<· . . . . . . ~ ]; H~ MSOFFE . . JUSTICE OF APPEAL . .·: . , ·, . ·' ... : ·.·· ..· . . . . .' . . . .· I certify thatthis is a true copy of the9ri~in·a1.. . ; I. I / : // I.