crdb bank plc vs intersystem holdings ltd another 2011 tzhccomd 2057 26 may 2011

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 107 OF 2009 CRDB BANK PLC.................................................................................. PLAINTIFF VERSUS INTERSYSTEM HOLDINGS LTD..................................................... 1st DEFENDANT YESY NYAMSONGORO................................................................ 2nd DEFENDANT RULING MrumaJ. The plaintiff in this case, CRDB bank having instituted the main suit , brought an application under Order XXXVII Rules 1(a) and 2, Sections 68(e) and 95 of the Civil Procedure Code, 1966 and any other enabling provision of the laws, seeking for orders that a) An ex-parte interim order be issued restraining the respondents/defendants, their agents, and /or servants from receiving and or obtaining any money payable in relation to a purported PERFORMANCE ADVANCE PAYMENT BANK GUARANTEE NO. BIG/110/2007 by the Applicant/plaintiff Page 1 of 6 addressed to DAR ES SALAAM CITY COUNCIL in favour of the respondents/defendants pending hearing of this application interparties. b) An order for temporary injunction restraining the Respondents either by themselves or by their agents, servants, workmen and or whomsoever is acting on their instructions and or directions from operating or withdrawing from account No. 01J1065221101 at HOLLAND CRDB BRANCH an account which was used to receive fraudulent proceed from the account of a Municipal Director-Kinondoni Municipal Council c) That an order that the respondents pays the applicants7 costs for the pursuit of this application and d) That any other temporary relief as the honorable court shall deem fit and just in the circumstances. This application has been certified by learned counsel Ngiloi to be of extreme urgency on the reasons that the respondents were pressurizing the plaintiff to release the monies holden in the said account and withheld by the defendant at its Holland Branch. Against this application the Respondents through the services of Mr. Muganyizi learned counsel mounted a total of four preliminary Page 2 of 6 objections. However, at the hearing, he dropped three and proceeded to argue one, that is; a) That the applicant's application is incompetent for wrong citation of the provisions of the law. On this ground alone he prayed that the application be dismissed with costs. Supporting his objection Mr. Muganyizi stated that the application for injunction cannot be brought under rules 1 and 2 of the Order XXVII, but rather it has to be brought either under rule 1 or 2 but not both. In essence the counsel contends that a specific provision of the law must be cited for an application to be properly before the court. To back up his submissions he referred me to the decisions of the Court of Appeal in the cases of Richard Kajima Muzo versus Arusha Municipal Council Miscellaneous Civil Revision no. 6 of 2005 and Civil application no.142 between China Henan International Corporation and Salvand K.A Rwegasira (CAT). He concluded that citing rule 2 is too general and confusing and therefore prays that the application be dismissed. On the other hand Mr. Mkonyi submitted for the applicant that by citing rule 1(a) it was a correct and specific because the prayer is to Page 3 of 6 restrain the respondent from withdrawing money from a bank account which is operated by the plaintiff. He said that the provision cited is the enabling law in the circumstances. The learned counsel concedes however that the cited rule 2 is not proper because it is not applicable but puts it that since they have been specific by citing rule 1(a) of order XXXVII and sections 68(e) and 95, the application is proper before the court. To support his submission he referred me to the case of Abubakari Mohamed Malenda versus Juma Mfaume [1989] TLR 145 where it was held the citing of improper provision of the law in chamber summons is not fatal. For this reasons he prayed that the preliminary objection be dismissed. I have carefully gone through the counsels' submissions and the position of the law as it stands. I must state at the outset that both counsels are right in their own turn and interpretation of the law. The authorities they have cited to me are also rightly cited in view of their diametrically opposed views. Mr. Muganyizi has argued the preliminary objection to the effect that the application is incompetent for citing wrong provision of the law. Indeed a chain of authorities abounds to that effect. But one particular overlook that the learned counsel committed is the differences between citing and pegging an application on a wrong provision of the Page 4 of 6 law, and that of citing an improper provision of the law as being one of the enabling provisions of the law. In the former, the application will be held incompetent. In the latter the improperly cited law can only be expunged or simply ignored and the application survives. It would be wrong in present case to base the application solely on rule 2 of the said Order while rule 1(a) is also cited. As said earlier it is improper to cite a provision which is inapplicable, but that alone cannot be the base for impeachment of the application in total disregard of the correct provisions cited. That is what is prohibited by the Constitution of the United Republic of Tanzania under Article 107(A) (2) in the name of the interest of justice, and this court as its custodian cannot abrogate from its noble call. That is why, I think, in the case of China Henan International Corporation (Supra) their lordships were of the view that not every incorrect citation of the provision of the law automatically renders an application incompetent however innocuous the error. I fully subscribe myself to that view. In the instant case, the befitting provisions and particularly that of rule 1(a) of Order XXXVII of the Civil Procedure Code, has been cited, and counsel for the respondents did not fault it. What else? Is the citing of inapplicable provisions along with correct provision a big sin? Page 5 of 6 This, in my considered view cannot be fatal to the application and to the ends of justice. In fine therefore, the preliminary objection is without any merit and it is hereby overruled. Costs shall be in the cause. Order accordingly. A.R. MRU MA JUDGE Date: 26/5/2011 925 Words Page 6 of 6