20150619 TZHC Iringa3

IN THE HIGH COURT OF TANZANIA [LAND DIVISION] AT IRINGA MISCELLANEOUS LAND CASE APPLICATION NO.29 OF 2012 (Original Land Application No. 1.4 of 2008 of Njombe District Land and Housing Tribunal) BATOROMEO NYIGU .......................... APPLICANT ' VERSUS MANAGER, PRIDE (T) LTD. MAKAMBAKO BRANCH .................. RESPONDENT 24/3/2015 & 19/6/2015 RULING MADAM SHANGALI, J. The applicant, Batoromeo Nyigu has filed this application seeking for two prayers, namely the extension of time for applying for leave to appeal to the Court of Appeal and for the leave to appeal to the Court of Appeal against the decision of the High Court of Tanzania at I·ringa. The application was filed under Section 11 of Appellate 1 Jurisdiction Act, Cap. 141 (R.E.. 2002) and Section 95 of the . Civil Procedure Code Cap. 33 (R.E. 2002) and Section 14 of the Law of Limitation Act, Cap. 89 (R.E. 2002). The application has been duly supported by an affidavit deponed by one Mashaka Mfala said to be ·the applicant's.advocate. Briefly, this application originates from the original Land Application No. 14 of 2008 before Njombe District Land and Housing Tribunal where the applicant sued the respondent for the declaration that the respondent's publication for sale of the house in dispute has no legal justification and asked for permanent injunction to restrain the respondent and his agents from ?elling ' .. the suit premises. That matter was heard and determined in favour of the applicant. The present respondent was riot satisfied with that decision. He appealed to this court. The first appeal was heard and determined in , favour of the respondent. Aggrieved · by that decision, the applicant is now intending to challenge that decision to the Court of Appeal of Tanzania hence this application seeking for leave of this court. In the conduct of this application the applicant was represented by Mr. Augusti_no Mtaki assisted by Mr. Ipyana Jendela, learned advocates while the respondent was 2 ·represented. by· Ms; Caroline Kivuy·o, learned advocate. . . ' ··Following a . request from both parties, on 4 th December, ..2014 this cou.rt allowed them· to argue the application by way of' writteri submission·s. Accordingly both sides have . ' complied with the scheduled order of this court for filing written submissions. In ·his written submission the applicant has decided to withdraw his first prayer in the chamber summons namely, application for extension of time for applying for leave to appeal to the Court of Appeal arguing that the application was filed within the prescribed time and in compliance with Rule 45 (a) of the Tanzania Court of Appeal Rules, 2009. ! • On his second prayer, the applicant· submitted to the effect that he is seeking for leave to appeal to the Supreme · court of ·the land, the Court of Appeal . of Tanzania as · require·d - by the law that any appeal to it must be accompanied by leave to appeal from subordinate court as provided under Rule 83 (1) of the Tanzania Court of Appeal Rules, 2009. The applicant i'nsisted that his appeal has strong reasons capable to· convince the Supreme Court because there are matters which were not adequately determined and resolved by the High Court. He also prayed for an order for stay of execution of the High Court decision 3 . pending the hearing and determination of the intended appeal. In response, the respondent found it necessary to begin with a point of law which. cropped up following the decision of the applicant to withdraw the first prayer. Respondent submitted to the effect that the court has not been properly moved to entertain the application for leave to appeal because the chamber summons contains no provision of law moving the court to that effect. He • contended that the cited prov!?ions of the law relates to the .. abandoned prayer. applying· for exten?ion of time within which to seek leave to appeal. He insisted that non-citation of the law which empowers the court to exercise its jurisdiction is a fatal irregularity which goes to the root of the whole application. The respondent argued that the application is incompetent for failure to cite the enabling provisions of the law. In support of his lega~ proposition, the respondent cited the· decisions in the cases of Abdul Aziz Suleman Vs. Nyaki Farmers Cooperation Ltd. & Another (1966) E.A., 409; Civil Application No. 20 of 1997 National Bank of Commerce Vs. S~drudin Meghji (unreported); Civil Application No. 88/ 1998 Almas Iddie Mwinyi Vs. National Bank of · Commerce & ·4 . ' .. / •,! ., . I', . It . Another (unrep9rted) and Civil Application No. 64 of 2003 Citibank Tanzania Ltd. Vs. Tanzania Telecommunications Co. Ltd.· & 4 others (unreported). ,, • • r ' ,. 11 ~ : ~ t .. t · -: - .•, The· respondent· is absolutely correct. It is now settled principl~ o( law that ~n application should be based or filed under the proper enabling .provision of the law. Non-citation . . • 't s • f ' • • • • • ' of enabling· ·provi'sioris renders the application incompetent; \. . . . . . . such an error goes to the robt _of the matter qecause the court is not vested with jurisdiction to determine the matter. All the' cases . cited by the respondent emphasize the requireme·nt of stating not only an enabling provision of the law but a'lso the particular sub-section of the law moving the c·ourt: In the present application, the court has been moved _ i t _._ -~- • ,... ., r under Section 11 of the Appellate JurisdJction Act, Cap. 141 ' . . . R.E.,. 2002 and Section 95 of the Civil Procedure Code Cap. 33 · R. E. ·2002. ~nd · Se.ction 14 of the Law of Limitation Act, Cap. 89 R.E. 2002 which are not proper· because they relate to the already abandoned prayer. ' I • ~ • The point raised by the respondent is a point of jurisdiction~ . It is a settled principle of law that points of jurisdiction can be raised at any stage of the proceeding 5 before judgement and even if parties do not raise it, the court is required to satisfy itself whether or not it has the requisite jurisdiction to entertain the matter•. See the cases of Bagamoyo District Council Vs. Noremco & Another •', , {unreported) and Zanzibar Insurance Corporation Ltd. Vs. Rudolf Temba (unreported). . ·Inherent powers of the court under Section 95 of the . Civil Procedure Act do not confer jurisdiction to the court where there is existing and specific provision of the law to move. the court. Inherent powers of the court relates to . ' matters of procedure for ends. of justice and to prevent an abuse of court process .. See the case of Tanzania - China Friendship Textile Co. Limited Vs. Our Lady of Usambara Sisters (2006)TLR, 70. To that extent, I am convinced that this application is misconceived and incompeten~ f~r non-citation of the . ' enabling provision of the law. It is hereby struck out with costs. M. S. SHANGALI JUDGE 19/6/2015 6 . Ii · ·Rulin·g delivered today In" the presence of -Mr. Rwazo, lear_ned :advocate. for the respondent, also holding brief for Mr. Mashaka Mfala, :a•dvot'ate'· for the applicant. Applicant 'present in.pef~on. , ... ·, t ·,. ,:t ' i M. S. SHANGALI . '., ' JUDGE 19/6/2015 • ''' .,_ ~ I 7