national bank of commerce vs lushoto trading agency ltd 1996 tzca 20 11 july 1996

IN THE COURT OP APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM* MAKAME, J.A.,, MNZAVAS, J.A. . And LUBUVA, J.A.) CIVIL APPLICATION NO. 21 OF 1995 In the Matter of an Intended Appeal BETWEEN NATIONAL BANK OF COMMERCE............ APPLICANT AND LUSHQTO TRADING AGENCY LTD . . = . . . RESPONDENT (Application for satisfying itself as to the correctness from the Ruling of the High Court of Tanzania at Dar es Salaam) (KyandOt J J dated the 4th day of May, 1995 in Civil Case No. 27 of 1992 R U L I N G LUBUVA. J.A. : At the cojwnencement of the hearing of this application, Mr. Semgalawe, learned counsel for the respondent raised a preliminary objection. This follows from the notice of Preliminary Objection which he had filed on behalf of the respondent on 6£5.1996. The Preliminary Objection raised was that the in application was not properly/.the Court. Arguing on the preliminary objection, Mr. Semgalawe relied on the authority of the decision of this Court in Halais Pro- Chemie Industries Ltd. V Wella AG, Civil Application No. 19 of 1995 (unreported). In that case this Court in clear terms set out four circumstances in which the Court can invoke its revisional powers as provided under sub-section (3) of Section 4 Of the Appellate Jurisdiction Act, 1979 as amended by Section 2 .../ 2 of the Appellate Jurisdiction (Amendment) Act, 1993 — No. 17 of 1993. The following are the circumstances: 1. The Court may, on its own motion and at any time, invoke its revisional jurisdiction in respect of proceedings in the High Courts 2. Except under exceptional circumstances, a party to proceedings in the High Court cannot invoice the revisional jurisdiction of the Court as an alternative to the appellate jurisdiction of the Court; 3. A party to proceedings in the High Court way invoke the revisional jurisdiction of the Court in matters which are not appellable with or without leave; 4» A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court where the appellate process has been blocked by judicial process. It was Mr. Semgalawe's submission that as none of these four •c±rewmstar*ces -w-^r-e applicable to the instant case* the application was incompetent, it should be dismissed. Elaborating further on this point, Mr. Semgalawe stated that this was a matter in which if the applicant were disetisfied with the decision of the High Court (Kyando, J.) rejecting the application for review, an appeal should have been filed. Instead, Mr. Semgalawe stressed, the applicant has come to this Court as an alternative to appeal. This, Mr. Semgalawe urged should not be allowed. For the applicant. Miss Mutabuzi learned counsel relied on circumstance 2 set out above in the Halais Pro-Chemie Industries Ltd. case. That there were ti .-ciai circumstance that would 3 warrant the Court's exercise e>t Its revist©ftal powers. Asked what the special circumstance* vere, she stated that the learned judge erred in the decision complained against and that the councel from the Tanzania Legot Corporation who handled the case at the trial had left tha C*rror«tion XTLC), On the basis T3f "Htis, she maintained* tha application was competent. We have given anxious e«n»ideration to these submissions. The* only lssus here is w-Ha****$■ *pplic#*ton is prcpejrly before this Court. As we stated in Civil Application No. 46 of 1994 Transport Equipment Ltd. V Devram P. Valambhia brought up under Section 2 (2) and (3) of Act No, 17 of 1993 - Appellate Jurisdiction Act £Amenaro«n%> -not merant to be used as an to •fctte appel-lnte this Court, If as stated by Miss Mutabuzi, learned counsel that it was felt that the learned judge had erred in the decision complained against then clearly in our view there was every justification for lodging an appeal. This was not done, instead the Court is b^ing »Ave<l to «rx«rcise it* revisions! jurisdiction. Furthermoret Miss Mutabuzi would wart us to accept that the counsel who handled the case at the trial having left the TLC as special circumstance. With great respect, we cannot accept this as a special circumstance set out in the Halais Pro-Chemie Industries Ltd. case. Consequently, in the circumstances of the case we are satisfied that none of the situations set out in the Halais Pro-Chemie Industries Ltd. case apply in the instant case. There being no circumstance to warrant this Court's exercise of its revisioral jurisdiction, the matter is, in our considered .../ 4 k view, not pr#pely before us# With respect, Mr* Semgalawe’s preliminary objection is sustained* In the event, the application is struck out with costs. At any rate, glancing through the record, even if the matter went further on its merits, the legal position on summary procedure was so elaborately considered by the trial judge that we are doubtful if the appeal would succeed* DATED AT DAB ES SALAAM THIS 'HTH DAY OF JULY, 1996* L.M, MAKAME JUSTICE OF APPEAL N.fl. MNZAVAS JUSTICE OF APPEAL D.Z. LUEUVA JUSTICE OF APPEAL I certify that this is a true copy of the original,