abdallah a karim other vs trustees of sunni muslim jamaat others 2009 tzhc 47 6 august 2009

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 158 OF 2007 ABDALLAH A.KARIM & 3 OTHERS.............. APPELLANT VERSUS THE TRUSTEES OF SUNNI MUSLIM JAMAAT & OTHERS.......... ......................... RESPONDENT Date o f last Order 19/ 08/ 09 Date o f Judgment 5/8/09 RULING MWARIJA, J. This ruling is in respect of the preliminary objection raised by the respondent. In his notice of preliminary objection, the respondent raised five grounds challenging the competence of the application as follows; 1. That the application is incompetent fo r non-citation o f the relevant provisions o f the law under which the court is moved. 2. The copy o f the decree intended to be executed is not attached to the application. 3. The affidavit is defective fo r lack o f signature verifying the same. 4. The affidavit is defective as substitute fo r 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 just to adopt the decision and judgm ent o f the High Court o f Tanganyika in Civil Case No. 30 o f 1927. (b) That time within which to file application fo r execution be extended and or this application be heard out o f time (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 o f 1927 should not be executed. (d) Costs o f this application to be provided f o r . The preliminary objection was argued by way of written submissions. Submitting in support of the first ground, the learned 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 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 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.XLIII 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. Robinson Matoke & Another; Civil Appeal No. 19 of 2001 (CA) (DSM) but unfortunately, he could not attach 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 aood law , that is another matter ....but unless and until that rule is amended or changed it remains part o f the law o f 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 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 Court which are no longer relevant given the present position as set by the Court of Appeal. From the submission by the learned 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 Edward Bachwa & 3 Others v The Attorney General & 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 o f authoritiesfto the effect that wrong citation o f the law, section, sub-sections and/or paragraphs o f the law or non-citation o f 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 the 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 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 the 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 when 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 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 Coles and Ravenshear (1907) 1KB1, rules of procedure are intended to be that of handmaids rather than mistresses. That is, their function is 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 in 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 is 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 entertained. I do not therefore find it necessary to consider the parties submissions on the rest of the prayers in 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. s A.G.MWARIJA JUDGE 6/8/09