abdallah omary kilondomala vs joseph paul zenda 2013 tzhc 2236 28 may 2013

IN THE HIGH COURT OF TANZANIA [LAND DIVISION] AT MTWARA MISCELLANEOUS LAND CASE APPLICATION NO. 5 OF 2011 ABDALLAH OMARY KILONDOMALA ................. A P P L IC A N T ^ [The rhe administrator of the e estate of the late Omary Kilondomala] VERSUS A H JOSEPH PAUL ZEN D A .........................................RESPONDENT ' Summary: Application to restore Land Appeal Case No. 12 of 2008 dismissed by this court, on 3 ^ c|ay^of March, 2011 for failure to file Written submissions byjn^applicant. Written submissions is tantamount to hearing and failure to file written submissions as ordered is linked to non-appearance on the date the case is for hearing.1Wrong citation of the law reduces the application to nothing, incompetent an “ass and a scare crow of the law.” Application dismissed. Date of last Order - 01/03/2012 Date of Ruling - 28/05/2013 RULING MIPAWA, J. The applicant Abdallah Omary Kilondomala [the administrator of the estate of late Omary Kilondomala] following the dismissal of the land appeal ase No. 12 of 2008 on 3rd March, 2011 for failure to file Written l Submission has now filed upon being dissatisified; this application, seeking inter - alia to have the dismissal of the appeal in land case No. 12 of 2008 be set aside and the dismissal of the appeal be restored i.e the appeal be restored. The applicaton for restoration of the same is purportedly brought under the provisions of order IX Rule 9 of the Civil Procedure Code c^p.33 R.E 2002 and is supported by the affidavit of the Senior learned Counsel for the applicant Mr. Mlanzi. The Respondent was on the other hand not represented. "-;- As directed and ordered by the court parties argufed their respective submissions in writing. After reading their submissions between the lines, there is a point of law in controversy which* need be addressed and discussed in exabundant cautela [with eyes of caution] i.e whether or not this court is improperly moved because of the wrong citation of the law. Now since the law is firmly rooted^ori the issue, I wish to address it first before embarking on the merit(s) of the application. In support of the point of law raised in the written " submission the respondent argued that the applicant purportedly moves this court by way of chamber application under Order IX Rule 9, order XXXIX Rule 5(1), section 93 and 95 of the Civil IS Procedure Code, Cap.33 R.E 2002 for orders among others to set aside dismissal order of this court in Land Appeal No. 12 of 2008 dated 3/3/2011 andt restore the appeal 1 into court records. The respondent viewed that neitheV of the cited provisions of the law mentioned above deals with the orders sought and that the only relevant provison of the law which the applicant ought to have relied in moving the court is Rule 19 of Order XXXIX2 which provides; 1 Abdallah Omary Kilondomala [the administrator of the late Omary Kassim Kilondomala] Vs. Joseph Paul Zenda 2 Civil Procedure Code Cap.33 R.E 2002 ... where an.appeal is dismissed under rule 11 sub-rule (2) or rule 17 or rule 18 the appellant may apply to the court for the re - admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to the costs or otherwise as it thinks fit...3 The Respondent further argued that, since Written hearing, then rule 19 Order XXXIX of the Civil Procedure Code [Supra] applies to this application. On the other hand the applicant’s counsel vehemently resisted the contention when he argued that the provisions of order XXXIX rule 19 are irrelevant and inapplicable because neither the applicant nor his advocate were absent vyheVtheir appeal was dismissed, that the appeal was not called out for bearing and that the appeal was ordered to be argued by way of writtefrsubmissions, and the appeal was basically dismissed upon the court's finding that the appelant’s written submissions had not beer\ filed as directed and ordered by the court. According to the applicant's Counsel Mr. Mlanzi filling Written submissions does^nto amount to hearing of the appeal in question. With great respect to the Senior leanred Counsel Mr. Mlanzi I don’t share his views because it has been now and then told that filling of written submission's amounts to hearing and therefore failure to file written submission is tantamount to non-appearance on the day when the appeal was called for hearing. It was held in Fredrick A.M Mutafurwa V. CRDB Ltd and others that; 3 Rule 19 Order XXXIX at Cap.33 RJE 2002 3 ... Times out of number this court has held that the practice of filing submissions is tantamount to a hearing, .and therefore failure to file the submissions has been linked to non-appearance or want of prosecution...4 Under those circumstances and surroundings the proper section which could have properly moved the court is order XXXIX Rule 19 of the Civil Procedure Code and not Order IX Rule 9 relied by the aopliW rjl5 It is judiciously noticed that, this court dismissed land appeal No 12 of 2009,6 for want of prosecution as required under Order XXXIX ]F?ule 17(1) of the Civil Procedure Code7 which provides; .....Where bn the day fixed or onany^other day to which the hearing may be adjourned the appellant does not appear when the^apyDeal is called on for hearing, the court may m a k ^ ^ fb rd e r that the appeal be dismissed... Now if the applicant wished to have his dismissed appeal restored he ought to have moved the Couft Under or through Order XXXIX Rule 19 which provides; .....Wt^eNpan appeal is dismissed Under sub-rule (2) of rule 11 or rule 17 or rule 18, the appellant may apply to the court for the re-admission of the appeal ^a h d where it is proved that he was prevented by any Sufficient cause from appearing when the appeal was called for hearing or from depositing the sum for required, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit..... 4 Land Case No.146 of 2004 HC Land Division Dsm unreported 5 Cap.33 R.E 2002 6 Abdallah Omary Kilondomala Vs. Joseph Paul Zenda 7 Cap.33 R.E 2002 4 It is apparent clear therefore that in this case or application there was a wrong citation of the law. I think the law is firmly rooted than non citation or wrong citation of the law renders the application incompetent. The jurisprudence of this"country on the issue is teeming with authorities. It ws held by the Court of Appeal in Robert Leskar Vs. Shibesh Abebe, that; .... It is settled law in this country that a proceeding/V V brought under wrong provisions of law is in c o m p e te n rx * and ought to be struck out...8 \ It should also be understood that non-citation or wrong citation of the law or rule is not by itself a matter of technicality but something that goes to the root of the application see also the holding \n China Henan International Co-operation Group Vs. Salvant K.A Rwegasira in which the Court of Appeal held per Lubuva J.A [as he then Wf sj- (iii).... The omission to cite the proper provision of the rule relating to reference or citing a wrong and inapplicable rule in support of the application is not a technicality falling within the scope and perview of Article/107 A (2)(e) of the Constitution.... \ \ In the end I fopricpthat the present application can not succeed as it is incompetent1before the court for wrong citation of the law, I find also that written submission means hearing and not otherwise. The applicant failed to file^tieir written submission and hence they defaulted appearance. Now the prayers sought in the present application cannot be given any weight or considered because of the reasons I have given in this ruling and that since the appeal sought to be re-admitted has not been re-admitted. For the reasons given supra the prayers of staying the excurtion and the like have AR Civil Application No.4 Of 2006 CAT Arusha [unreported] [2006] TLR 220 no legs to stand. The law is not a pray mate of anyone therefore citing a wrong law or rule is equally [as one distinguished poet said] turning the law an ass and scare crow of the law. In the event and on the foregoing this application is dismissed with costs. I.S. Judge 28/5/2013 Appearaf 1. Applicant: Present and Mr. Mlanzi, Advocate for* the applicant- present 2. Respondent: Present in person. Court: Ruling is read over in the presence of the appearances as above indicated. Further rights of appeal explained. Ilk I.S. Mipaw^J Judge 28/5/2013 6 Mr. Mlanzi, Advocte: We pray for appeal to the Court of Appeal in this case we pray leave undr rule 45(a) which allows us to pray informally that is all my lord. Court: Prayer is granted to appeal to the court of appeal. I.S. Mipawi Judge 28/5/2013, 7