20091027 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA TBR CIVIL APPLICATION NO. 1 OF 2007 THE REGISTERED TRUSTEES OF JOY IN THE HARVEST ............................................ APPLICANT VERSUS HAMZA SUNG URA ........................................ RESPONDENT (Application for leave to appeal from the Order of the High Court of Tanzania at Tabora) (Mwita, J.) dated the 20th day of May, 2003 in Misc. Civil Appl. No. 2 of 2002 RULING 23 & 29th October, 2009 MBAROUK, J.A.: This application was aimed at moving the Court to grant the applicant leave to appeal to the Court of Appeal. It was instituted by the notice of motion made under section 5 (1) (c) of the Appellate Jurisdiction Act Cap.141 R.E.2002 and Rules 43(b), 45 and 46 of the Court of Appeal Rules, 1979. When the application was called on for hearing, Mr. Jerome Muna, learned advocate for the respondent raised a preliminary objection to the effect that: "The notice of motion filed by the Applicant is incurably defective for having offended the mandatory provisions of Rule 45(1) of the Court of Appeal Rules, 1979." Mr. Muna, submitted that Rule 45(1) is couched in mandatory terms that all applications to the Court shall be by motion, which shall state the grounds of the application. He said, in the instant application no grounds have been stated, hence that makes the application incompetent. In support of his argument he cited the case of Commissioner General Tanzania revenue Authority versus Parastatal Pensions Fund, Civil Application No. 73 of 2005 (Unreported) and the case of Zuberi Mussa versus Shinyanga Town Council, Civil Application No.100 of 2004 (Mwanza) (unreported) which gave the importance of stating grounds in the notice of motion. With that short and precise submission, Mr. Muna urged the Court to strike out the application with costs. 2 Mr. Kamaliza Kamoga Kayaga, learned advocate for the applicant, forcefully resisted the preliminary objection by submitting that Rule 45(2) of the Court of Appeal Rules, 1979 states that a notice of motion shall be substantially in the Form A in the First Schedule to these Rules, whereas Rule 45(1) requires the applications to be made by notice of motion and state the grounds. However, Mr. Kayaga submitted that when the two Rules are read together it gives the meaning that the notice of motion shall be substantially in Form A and not as a copy of the format found in Form A. He then cited the case of Salum Ndikojeje versus Republic, Criminal Appeal No.238 of 2004 (unreported) which gave the interpretation of the word substantially "as it does not mean exactly like ............ but mainly" or "in most details even if not completely." He further submitted that courts should not restrict themselves to technicalities in its duties of dispensation of justice. In otherwords, he said courts should direct themselves to determine disputes between the parties. In support of his arguments, he cited the case of The Judge i/c High Court Arusha and Attorney General V. Munuo Ng'uni, Civil Appeal No.45 of 1998 (Unreported) where this Court used Article 107A(2) (e) of the Constitution in support of what he has argued. He finally urged the Court to overrule the objection and allow the application to proceed to be heard. 3 In reply to what has been submitted by his learned friend, Mr. Muna maintained his earlier stand. He further submitted that, in the instant case, the issue of not stating the grounds in the notice of motion is not to be taken as a mere technical issue, but a requirement of the law. He said, in the case of Zuberi Mussa (Supra) similar arguments were raised, but at the end of the day, the Court held that Article 107A (2) (e) of the Constitution quoted in Munuo's case (supra): ''Should be taken as a guideline for court action and not as an iron clad rule which bars the courts from taking cognizance of salutary rules of procedure which when properly employed help to enhance the quality of justice delivered." He maintained that Munuo's case is distinguishable from the instant case. He then reiterated his earlier stand that for non compliance of the mandatory requirement of Rule 45(1) of the Court of Appeal Rules, 1979, the notice of motion should be struck out. Indeed as pointed out by Mr. Muna, the current position of the Court is non-compliance of Rule 45(1) of the Court of Appeal Rules, 1979 leads to make the notice of motion incompetent, hence deserves to be struck out. In the case of Commissioner General 4 Tanzania Revenue Authority (Supra) this Court categorically I stated that: 1 "With respect to Mr. Lugaiya, R.45(1) requires ' that grounds be stated. In the same vein, I under R.45(2) a notice of. motion has to be I substantially in the form A in the first I schedule. Form A makes provision for stating the grounds upon which the motion is made. I In this Court's recent, decision it was held that it is mandatory to state the grounds of the application, and that failure to do so renders the application incompetent- See the case of Harish (Supra) and Anthony,' F. Temu v. Iddi Materu -Civil Appli~ation No.8/2001 (Unreported). Thus, this application is also incompetent for the above reaso,n." (Emphasis added) ' I This Court again in the case of Maneno s/ o Abdallah versus I Republic, MZA. Criminal Application, No.2 of 2005 (Unreported), held I that: I I I I I 5 "Lastly, as is glaringly clear for the provisions of rule 45(1), the notice of motion ''shall state the grounds of the application. " "The notice of motion under scrutiny in this application has violated this sub-rule. As reproduced above, it is evident that it does not state, the grounds upon which the application is based This is a fatal omission and renders the notice of motion incur~bly defective. " It is evident that, in the instant notice of motion no grounds of the application have been stated contrary to the mandatory requirements of Rule 45(1) of the Court of Appeal Rules,1979. Time and time again, this Court has emphasized to the compliance of the mandatory provisions of Rule 45(1) of the Rules. In the case of Maneno s/o Abdallah (Supra) this Court has specifically stated that non compliance of Rule 45(1) for not stating the grounds of application is a fatal omission which renders the notice of motion incurably defective. I, too just like Mr. Muna, view the non compliance of Rule 45(1) not as a mere technical issue, but as a requirement of the law to be mandatorily complied with. I am of the considered opinion that Munuo's case on the use of Article 107A (2) (e) of the Constitution is distinguishable from this case. 6 In view of the glaring fatal omission in the notice of motion, the preliminary objection filed by Mr. Muna is hereby upheld. Hence, the application is incompetent and accordingly struck out with costs. It is so ordered. DATED at TABORA this 2ih day of October, 2009. M.S.MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. <?~ ....... :: ·r1 • (J.S. MGETTA) DEPUTY REGISTRAR 7