africa energy limited v ben samson 2023 tzhclandd 17213 19 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CLAND DIVISION)

AT PAR ES SALAAM MISC. LAND CASE APPLICATION N0.569 OF 2023 (Arising from Land Case Appiication No. 336 of2021)

AFRICA ENERGY LIMITED APPLICANT

VERSUS 1. BEN SAMSON ...RESPONDENT

RULING Date ofLast Order: 19.09.2023 Date ofRuling: 19.10.2023 T. N. MWENEGOHA,J. This Application was brought under Section 11(1) of the Appellate Jurisdiction Act, Cap 141, R. E. 2019, Section 14(1) of Law of Limitation Act, Cap 89 R. E. 2019,Order IX Rule 6 and section 95 of the Civil Procedure Act, Cap 33 R. E.

2019. The applicant sought among others, for the following orders; - 1. That, the Honourable Court be pleased to extend the time within which to make an Application for setting aside dismissal order of the Misc. Land Application No. 336 of 2021, dated 09*^*" November 2021.

2. That,In the event the Honourable Court extends the time In prayer-number 1 above,the Honourable Court set aside the dismissal order of Misc. Land Application No. 336 of 2021, dated 9/11/2021.

3. That, in the event the Honourable Court sets aside the dismissal order in prayer number 2 above, the Misc. Land Application no. 336/2021, be restored and proceed to its conclusion. The respondent on the other hand, objected the Application for being omnibus and on the fact that the affidavit contains a defective verification ciause. This Court then ordered the Objection and the Appiication to be heard simuitaneousiy, by way of written submissions. As the rules direct, the Preiiminary Objection was disposed first. Mr. Samwei Shadrack Ntabaiila, appeared for the respondent. His submissions in favour of the Objection were that, the Appiication is omnibus because the Chamber Summons contain three different prayers, whiie being supported by a singie affidavit. Therefore, the Appiication is incompetent before this Court as stated in Mohamed Salimin versus Omary Mapesa, Civil Appiication No.103/2014, Court of Appeal of Tanzania (unreported). He went on to argue further on the 2"" Objection that, the verification ciause in the appiicant's affidavit is defective owing to the reasons that, the verifier did not state the source of information stated under paragraphs 17,18, 22,23 and 25. In repiy, Mr. James Bwana, for the respondent insisted that, the respondent's counsei faiied to provide any legai basis for his Objection regarding an omnibus Appiication. Therefore, the same is not

based on any point of iaw. That, the case of Mohamed Salimin versus Omary Mapesa,(Supra) is distinguishabie to this case, as the prayers were not interrelated. That, in this Appiication, the prayers are interreiated as stated in Mic Tanzania Limited versus Minister for Labour and Youth development. Civil Appeal No. 103/2004, Court of Appeal, Dar es salaam, as quoted in Msafiri Omary versus Ally Mbega,(PC) Civil Appeal No. 72 of 2017(unreported). It was his view that, the Objection Is therefore, devoid of merits. He had the same view to the 2"^ objection on defective verification dause. That, the requirements of stating the source of information by the deponent was met and the Objection Is on pure facts, not on point of law. Having heard the submissions of the counsel for the parties with regard to the Objections raised, I now have to determine whether the same have merits or not. If the objections are found to be meritious, this Application will meet its end Immediately, and if the objection are overruled, then we will go into discussion of the merits or otherwise of the present Application. It is a settled principle of law that, two or more Independent matters cannot go together in one Application, unless they are Interrelated and can conveniently be jointly determined by the Court, see Daudi Lengiyeu versus Dr. David E. Shungu, Civil Application. No. 28 of 2015, Court of

Appeal of Tanzania, at Arusha, and Bibie Named Khaiid versus Mohamed Enterprises Ltd and Two others. Civil Appl. No.6 of 2011,(both unreported). The question in need of an answer in the Application at hand Is whether the prayers listed in the applicant's Chamber Summons are interrelated and if the same can conveniently be determined together. The answer in my view is the negative. In his first prayer, the applicant is seeking for an extension of time, to enable her to make another Application for setting aside dismissal order given in Misc. Land Application No. 336 of 2021, dated 09^ November 2021. That is to say, the applicant Is barred by time to seek any remedy regarding her case, unless that barrier Is lifted. Hence, the Application to extend the time for further actions is independent and separate from an Application to set aside the dismissal order (prayer number 2 in the Chamber Summons) and the restoration of Misc. Land Application No. 336 of 2021, dated 09^ November 2021(prayer number 3). In Ally Abbas Hamis versus Najma Hassan Ally Kanji, Misc. Land Application No. 140 of 2017, High Court Land Division at Dar es Salaam (unreported), it was observed that "..Jumping ofseveral prayers in a single Application which those prayersare also different:and the considerations to be taken into accountare different, the conclusion is nothard to find, butto conclude thatthe

Application isomnibusandfrom the same reason I have no other option than to struck out with costs the omnibus Application" So, the only test for an omnibus Application to be entertained in Court is that the prayers contained in the Chamber Summons should be interrelated and capable of being joined. As noted above, the Application for extension of time comes first before any other Application. It paves the way for further actions, including filing an Application for setting aside a dismissal order and restoration of Misc. Land Application No. 336 of 2021, dated 09^^ November 2021. It goes without saying therefore, that the Court in the instant Application has been improperly moved. As stated by Msofe 3.A in Mohamed Salimin versus Jumanne Omary Mapesa, Civil Application No.l03 of 2014, Court of Appeal of Tanzania, at Dodoma,(unreported), that " As it is, the Appiication is omnibus for combining two or more unreiated Appiications. As this Court has heid for time(s) without number, an omnibus Appiication renders the Appiication incompetent and iiabie to struck out". Guided by the authorities cited above, I sustain the objection and proceed to declare this Application to be incompetently filed before this Court. Further, these findings are in my view, capable of disposing the entire Application. In that case, I will not bother to discuss the remaining objection. Eventually, the Application is hereby struck out with costs. Ordered according. 013WT T. N.i*4WENEG0HA ❖ JUDGE o 19/10/2023 as ★ ★ o