20090805 TZHC Dar es Salaam

> - . ... ..,. •• ✓ • ~. ,,,:r. · •••. IN THE HIGH COURT OF TAN.ZANIA · AT DAR ES SALAAM · CML APPLICATION.NO. 158 OF 2007 ABDALLAH A.KARIM & 3 OTHERS •......... ~~ .... APPELLANT VERSUS THE TRUSTEES OF SUNNI MUSLIM JAMAAT & OTHERS .................................... RESPONDENT Date of last Order 19/ 08/ 09 -·) Date of Judgment 5/ 8/09 RULING MWARIJA, J. This ruling is in respect of the prelimin~ objection raised by the respondent. In his notice of preliminary objection, the respondent raised five grounds challenging the comp~tence of . the application as follows; ) 1. That th.e application is incompetent for non-citation of the relevant provisions of the law under which the court is moved. 2. The copy of the decree intended to be executed· - 1,s· - riot attached to the application. :ti 3. The affidavit lS defective for lack of signature verifying the same. 4'. The affidavit is defective as substitute for oral evidence. 5. The application is legally misconceived: ·.·. The application which was brought under O.XLII r. 2 and S.68 (e) and 95 of the Civil Procedure Code, Cap. 33 R.E 2002 sought for the following orders; (a) That the Honorable court may deem it fit and jusf to . adopt the decision and· judgment of the High Court of Tanganyika in Civil Case No. 30 of 1927. (b) That time within which to file application for execution be extended and or this application be heard out of time 2 . •', . . . .... . ... . ·,. (c) That the · Honourable court may deem it fit, to call upon the respondents to show cause why the said judgment in Civil Case No. 30 of 1927 should not be executed. (d) Costs of this application to be . provided for. The preliminary objection was argued by way of written submissions. Submitting in support of the first ground, the· · 1earned counsel for the respondent argued that since the applicants have not cited any provisions of the law which can move the court to entertain the application for extension of time, such non-citation of an enabling provision vitiates the :_J entire application and hence the application should be struck out. The leaned counsel cited inter alia the case of Citi Bank (T) Ltd, v.Tanzania Telecommunication Co. Ltd. & Others, Civil Application No. 64 of 2003 (CA) (DSM) (unreported) and Yusuf Manji and Others v.Reginald Mengi & 10 Others, Civil Case No. 40 of 2006 (HC) (DSM) (unreported). With regard to the · 3 provisions•cited by the applicants, sections 68 (e) and 95 of the · CPC, the learned counsel for the respondent submitted that the same can not apply where there are specific provisions investing . jurisdiction in the court to exercise a specific power. Responding to the submissions on the first ground of the ·.·. preliminary objection, Mr.Kinguji, learned _counsel for the applicants has argued that since O.XLIP r. 2 · of the CPC was cited, then there is no need for any support from other provisions of the law. He added that the use of the word" shall" in the above named provision implies that " the provision is peremptory and not subject to the choice of the'" parties". It is his submission therefore that by citing that order of the CPC, · the court has been properly moved. He cited an unreported decision in the Case of NBC Holding Corporation v. Ro bins on . I Matoke & Another; Civil Appeal No. 19 of 2001 (CA) (DSM) but . unfortunately, he could not att?-ch a copy of that decision in his written submission's. Part of the judgment relied upon by the learned counsel was however quoted as follows; "whether or not the rule as it currently stands is good law, that is another matter 4 .... but unless and until that r:ule is amended or changed it rema1.ns.part of the law of the land and has to be applied". On the. basis of submission above, the learned counsel strongly argued that wrong citation or non-citation of the provision of the law in the chamber summons is not fatal to the application and the court cannot deny itself the opportunity to determine it. He further cited the cases of Abubakar Mohamed Mlenda v.Juma Mfaume (1989)TLR 145 which held inter alia that non citation of a proper provision of the law is not fatal to -the application and. General Marketing Co.Ltd v. A.A.Shariff · (1980) TLR 61 which reiterated the position of the Court of . Appeal of East Africa on the aspect that the rules of procedure being handmaidens of justice should not be used · to defeat justice. He added that as he has cited S.95 of the CPC, the court can use its inherent powers because such inherent powers are not controlled by any provisions of the code. In rejoinder, the learned counsel for the respondents submitted that the provisions cited by the learned counsel for the applicants are not specific enabling provisions for moving 5 the court to entertain the application. On the authorities cited · in support of the applicant's submissions, he said that such are the decisions of the High c·ourt which are no longer relevant given the present position as set by the Court of Appeal. From the submission by the l<?arned counsel for the parties, it is clear that the learned counsel for the applicants did not cite an enabling provision- in moving the court to entertain an application for extension of time for execution of the decree in Civil Case No. 30 of 1927. Mr Kinguji learned Counsel has submitted that it was sufficient to cite O.XLIII r.2 of the CPC. With due respect, that provision provides only on how an application shall be brought; that is by way of chamber summons supported by an affidavit Within that chamber. summons, the applicant must then cite a specific provision· under which he intends to move the court. For that matter • therefore s. 95 of the CPC being not a specific provision in moving the court to extend the time is, as submitted by the learned counsel for the respondents, not applicable. Apart from the · decisions of the Court of Appeal cited by the learned Counsel for the respondents another decision in the case of 6 . · Edward Bachwa & 3 Others v The Attorney Genera.I & Another; Civil Application No. 128 . of 2006 . (CA) (DSM) . (unreported) was more elaborate of the fate of an application for which an enabling provision was not cited. After asking itself about the fate of such an application, the court said; "The answer is found in unbroken chain of authoritiesrto the effect that wrong citation of the law, section, sub-sections· and/ or paragraphs of the law or npn-citation of the law will not move the court to do what it is asked and renders the application incompetent. " The court then listed seven other cases included Citi Bank Case (supra) which was· cited by the learned Counsel · for the respondents. On tbe submission by the learned Counsel for the ·applicants that the rules of procedure being handmaidens of justice should not be used to defeat justice, I agree within him in principle but I am of the view that in the present application what is at issue is not a matter of procedural rules but a 7 specific enabling provision of the law which has to move the court to do what has been. asked. In the case of Zuberi Mussa v Shinyanga Town Council,_Civil Application No .. 100 of 2004 (CA) (MZA) (unreported), the notice of motion had a defective jurat of attestation. The learned counsel for the applicant relied on the substance of t,he Statement of Biron, J as quoted by Mr. Kinguji, learned counsel. After considering the submissions on that point and the provisions of Art. 107 A (2) (e) of the Constitution of the United Republic of Tanzania, the court said; " The courts are enjoined by it- to administer justice according. to the law only without being unduly constrained by rules of procedure and/ or technical requirements ... One cannot "be said to be acting wrongfully or unreasonably wheri he is executing the dictates of the law''. The court went on the .quote the case of China Henan ____ International Cooporation Group v Salvand K.A Rwegasira, Civil reference No. 22 of 2005 (unreported). Regarding the 8 . . · principle that justice should not be defeated by procedural rules the court in that case held inter alia that; "As stated by Collins, MR in Re Co_les and Ravenshear (1907) · 1KB 1, . rules of procedure are ·intended to be that of ·.·- handmaids rather than mistresses. That 1s, their function 1s to ·facilitate the administration of justice. Here, the ommission in citing the proper provision of the rule relating to a reference and worse still the error in citing a wrong and inapplicable rule 1n support of the application is not in our view a technicality ..... .It is the matter ·which goes to the root of the matter .... " On the basis of the above therefore, since extension of time . 1s a precondition for considering other prayers and since the applicants have failed to cite a proper provision of the law to move the court, it is clear that the application is incompetent. Without extension of time, none of the other prayers can be 9 . entertained. I do riot therefore find it necessary to consider "the . parties submissions . on the rest ·or the prayers 1n the application. As the application has been found to be incompetent, the same is hereby struck out with costs. A.G.MWARIJA JUDGE 5/8/09 Date: 6-8-2009 Coram: A.G.Mwarija, J. For the Applicants - Mr.Kinguji For the Respondent: Absent CC: Yasintha. Ruling delivered. Respondents to be notified of the ruling. \ q,µv1 . A.G:MWARIJA JUDGE 6/8/09