20120601 TZHC Dar es Salaam 1

~· IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISCELLAN.EOUS LAND ·APPLICATION NO. 1 OF 2012 ABUBAKAR A. BAN DELLA & 18 OTHERS ......... ·... ~ ..... APPLICANT VERSUS TANZANIA PETROLEUM DEVELOPMENT CORPORATION .......................... RES PON DENT ~ RULING ~0 ~ ~ ~ "'-::5 ~"'.':::1 ~ " ' B.R. MUTUNGI, J. <hN v~~~~·~~~ \. ( ~~ ~ . This preliminary objection raised by the counsel for~ respondent Mr. Malimi is centred on the following point of law:- "that the application brought by the applicant is incompetent for non citation of enabling provisions of the law". At the hearing the applicant was represented by Mr. Ngalo learned counsel. Mr. Malimi learned counsel submitted that the court is not properly moved as the 1 application. brought by applicant is incompetent for non citation of the enabling law. It was contended that the application was filed on 21/1/2012 in which the applicant did not cite any provision of the law in it that is the chamber summons under which it is being made. The learned counsel further submitted that it is trite law that any application which is being brought before the court must cite a specific provision under which the court is being moved to grant the prayers which are being sought. , Mr: Malimi contended that there are a number of authorities which have held that non citation of law renders the application before the court incompetent and the outcome is to struck out the same for being incompetent. The learned counsel referred this court to the case of ALMAS MWINYI VRS NBC and Mrs. MBITA (2000) TLR 83. Where the Court of Appeal held that non citation of the law was fatal. 2 To put the salt to the wound _Mr. Malimi referred this court again to another authority, the case -of CHINA INTERNATIONAL CORPORATION GRELA VRS SALVANT K. A RWEGASIRA (2006) TLR 220 where the Court of Appeal stated that non citation of the provision of the law renders · an application to be struck out. Furthermore Mr. Malimi went at length to submit by inviting again this Court to peruse the case of NICK MUHONGO on behalf of 684 and Others Vrs. TANZANIA SHOE COMPANY LTD AND TANZANIA LEATHER ASSOCIATED . INDUSTRIES CIVIL APPLICATION NO. 3! OF 1993 (Unreported) which held the same. He also cited the case of CITY BANK OF TANZANIA LTD VRS TANZANIA TELECOMUNICATION AND 4 OTHERS CIVIL APPLICATION NO. 64 OF 2003 Court of Appeal of Tanzania held, that non citation of the law renders the application incompetent and is to be struck out. It is Mr. Malimi's is submission that all the above cases of the Court of Appeal struck out the applications which did 3 .f ·- -------------------------- ---- --~--- -~ not cite the provision which the Court 1s to be moved. Reffering the above to the present matter the learned counsel contended that the application before this court is incompetent for failure ·to cite the provisions of the low and prayed that it be struck out with costs. · In reply Mr. Ngolo learned counsel concedes that the chamber application does not cite any provision of low under which it is being brought. However he submits that non citation of the provision of low does not render the application invalid or incompetent. The reason for the some as expressed by Mr.- Ngolo is that the Civil Procedure Code Cop 33 R.E 2002 Order XLIII Rule 2, does not provides that in chamber summons there should citation of the provision of low. It is only the requirements that there should be a chamber summons. The Civil Procedure Code does not provide any provision which requires on application to cite any provisions to rely on or there is no any other low requiring for the some. 4 ' ,. . •• •. - . : -. i .... . ..· . . - . Mr. Ngalo learned Counsel further submitted that he is quite aware and conceedes that· the requiremeht arose out of practice which has now formed a precedent in our legal ·:system. He further argued that he admits the decision are the position of the law. He maintained that dispite the above there has been inconsistence by the Court of Appeal itself with regard to that position. The counsel submitted that he has 1n his mind the decision of the Court of Appeal of a single Judge in FORTUNATAS MASHA NAD ANOTHER (1997) TLR 152 TO 156. He expressed that in that case a notice of appeal wa? filed in the Court of Appeal yet there was no citation of law and the Judge when faced with a challenge from the respondent. Mfalila held that " .. the omission did not affect the validity of the application .. " In the same application, the respondent sought _for a reference and this time around the three Judges sitting in WILUA SHIJA VRS FORTUNATAS SHIJA (1997) TLR 213 to 219, they did not fault Mfalila's findings. So it is clear that there are inconsistencies. 5 { .' " " -: ,. . ••. ,.~ ', . •/~~ :ll .~ ··.-.\:-~. , ' The learned counsel of the applicants further submitted that there is now a change of minds of the court in respect of this matter that the technicalities do not render the applications in competent. He further argued that one examples is in Civil appeal No. 98 of 2008 RALID AHAMED VRS SCANI (T) LTD (Unreported). The respondent filed a preliminary objection and cited rule 100 of the Court of Appeal rules. The three justices stated that they hove not been moved and so they ordered for· rectification of the application under rule 2 of the Court of Appeal which . does not advocate for technicalities. The thinking by the Court of Appeal is found in Civil Appeal No. 86 of 2008 SAMSON MGWAGIDA Vrs. COMMISSIONER GENERAL TRA which held that the court should look at substantive justice and ovoid technicalities. Civil Application No. 54 of 2009 NICOLAUS HUSSEIN AND 1,0l3 OTHERS VRS TANZANIA SHOE COMPANY LTD AND 2 6 . ......... -·. , ... - . . •..._:" ~~?··. :~~~- ··. :·:·: - ·: ..... - ~ . . ...... " ,·· ; .·-: . ·~:.. ·: _.,. (, OTHERS (Unreported)~ Kileo J. stated that even if grounds were not cited but technicalities should not be entertained. In conclusion Mr. Mgalo learned counsel prayed that the court should do away with technicalities and dispose justice by hearing the application on merits. It is his submission that the chamber summons supported with the affidavit does contain sufficient material facts upon which the court can base its decision and the laws under which the application can be entertained. He submitted that the respondent will not be prejudiced at all if the application is heard on merit. Apparently the respondent has already filed a counter affidavit challenging the application. He prayed that costs be in the course. In rejoinder, Mr. Malimi learned counsel reiterated his submission in the preliminary objection. He rejoined that the cases of 1997 TLR by the Court of Appeal are not applicable in the matter at hand. Counsel submitted that in the two 7 • -t cases the issue was not non citation per se. but it was entertained with the issue of jurisdiction so he submitted that in all the cases which followed after this case the ratio decided in this case was not followed. He maintained that all the cases which he cited came after the l997 TLR case. So it is his humble submission that the two cases should not be applicable. Mr. Malimi learned counsel conceed that there has been a change of· altitude particularly in the case of SAMSON cited by the counsel of· the applicant but this change depends from case to case or on a particular case. In a recent case of ELIAS RAYMOND AND ANOTHER VRS TANGAMANO Civil Appeal No. 33 of 2007 Court of Appeal of Tanzania 5/3/2000 had an opportunity of discussing the SAMSON'S case and in the discussion the court of appeal did not carry the wide meaning as purported by the applicants. The Court of Appeal held that an omission which goes to the root of the matter cannot hold even through it is based on a technicality. 8 t • Responding to the cases cited by applicant counsel that of the High Court the counsel maintained that they flow from the SAMSON'S case. Mr. Malimi further contended that non citation in this case causes a miscarriage of justice. This is so as by not citing a particular provision of law, the respondent is disabled to appropriately counter the applicants application. It is his contention that the application by applicant carries two limbs. l. Extension of time and 2. Stay of execution. The counsel· proceeded to state as this was a decisions of a tribunal then stay of execution is to be tried in the tribunal itself. It also follow that another issue of jurisdiction would came 1n. 9 l • I The counsel still maintained that non citation here is not a matter of technicality. 'By virtue of ELIAS RAYMOND AND ANOTHER (Unreported) this omission commits injustice to the respondent and goes to the root of the application itself. He prayed that it is incompetent and should be struck out with costs. In my part, I have meticulously gone through the filed Preliminary Objection and the submission made by the learned counsels in respect of the raised preliminary point of law. The issue before me centres on whether the application brought by applicant is incompetent or not for non citation of the enabling law. It is an obvious fact that in the application at hand the applicants have not cited any prov1s1on of law. This to is conceeded by the applicant's counsel. The question that follows then is what is the fate of the filed application. As was submitted by the applicant's 1 counsel there have been inconsistency in the decisions in 10 ··;;.. . . . . . . ··: -~:·-···; + .... -;r __._ ..-,. •• -:·~~:..- \ ~• . • : •• -:.:~ ~- .... __ regard to the fact of non-citation of the . low and wrong citation of the law. There hove been a school of thought that advocate that the above ·would ultimately render on application incompetent and thus the some should be struck out. The other school of thought is of the feeling that non-citation or wrong citation of the low is not fatal and con be cured. In my settled mind I would go for the second school of thought in that as much as I appreciate that in the present application there is an omission as the applicants have not cited any provision of law but this is_ not fatal or incurable. I strongly advocate the stand that in any matter that is brought before the. court what is paramount is the substantial justice and the courts should not be carried away by technicalities. More so where such failure will not occasion injustice to the respondent. My reasoning also goes hand in hand with the finding of the Court of Appeal in the case of SAMSON NGWALIDE VRS THE COMISSION GENERAL TRA CIVIL APPEAL NO. 86 OF 2008 whereby the 11 -, . court took into account the newly introduced provision of the court of appeal rules which rule underli·nes the principle that in administering the rules the court shall have due regard to the need to do substantive justice in the particular case. I am further persuaded by my brother Judge Karua in his ruling found in Miscellaneous Civil case no. 7 of 2011, Felix Mosha and 2 others Vrs. The capital markets and securities Authorities, and Hon. Attorney General where he adopted the Court of Appeal Case (supra). I am also mindful of the Constitution of the United Republic of Tanzania specifically Article 107 A (2) (e) which calls upon the courts in the country to dispose justice without being tied up with rules leading to technicalities which principle is also to be found in the SAMSON NGWALIDA'S Case (supra). From the foregoing I am inclined to concur with Mr. Nga lo' s submission as I find that the omission is not fatal and 12 ::·' · .. ·. ' , ' • • •• • 1'- '~· ,,.., I ' ' the same is curable. The respondent is not prejudiced in any way.· In conclusion I find that the applicants are to amend their application by citing the enabling ·provision and thereafter the application to proceed on merits. It is so ordered I make no order as to costs. B.R. MUTUN.GI JUDGE 1/6/2012 Read this day of l / 6/2012 Rudi Mwavika holding brief for Ngalo for applicant and Rudi Mwavika for the respondent. B.R. MUTUNGI JUDGE 1/6/2012 13 . . ' . ..... RUDI MAVITA After that ruling we pray for hearing of the application. ORDER 1. Hearing of application on 10/9/2012 2. The applicants to made an amendment in the application by 14/6/2012 and serve the respondents accordingly. B.R~ MUTUNGI JUDGE 1/6/~012 14