20060321 TZCA Dar es Salaam 2

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, J.A., LUBUVA, J.A. AND MROSO, J.A.) CIVIL REFERENCE NO. 22 OF 2005 CHINA HENAN INTERNATIONAL CO-OPERATION GROUP ............................................. APPLICANT VERSUS SALVAND K.A. RWEGASIRA .................................... RESPONDENT ((Appeal from the decision of the Court of Appeal of Tanzania at Dar es Salaam) {Nsekela, J.A.) dated the 9 th day of September, 2005 in Civil Application No. 11.4 of 2004 RULING OF THE COURT LUBUVA, J.A. This is a reference from the decision of a single Judge of this Court (Nsekela, J.A.) striking out the notice of appeal in Civil Application No. 114 of 2005. Under the provisions of rule 100 of the Court Rules, 1979 Mr.· Kamugisha, learned counsel for the respondent, had given notice of preliminary objection against the reference. The objection raised is that the reference is incompetent, it should be struck out due to:- \ 2 The applicants' failure to move the Court properly under the law in that the application for reference has been brought under the wrong citation of a provision of the law. In support of the preliminary objection, Mr. Kamugisha submitted that the application for reference by letter of 14 September, 2005 addressed to the Registrar, Court of Appeal was made under rule 119(1), (2) and (3) of the Court Rules, 1979. He said the application should have been made under rule 57(1) instead of rule 119(1), (2) and (3) which deals with reference on taxation matters. Under the provisions of rule 119, counsel went on, a person who is dissatisfied with the decision of the Registrar in his capacity as taxing officer, may apply for reference to a Judge of this Court. The application having been made under wrong citation of the rule is rendered incompetent, it should be struck out, Mr. Kamugisha urged. In support of this submission he referred to the decision of this Court in Aloyce Mselle v The Consolidated Holding Corporation, Civil Appeal No. 11 of 2002 (unreported); M/S Ilabila Industries Ltd. and Two Others v Tanzania Investment Bank 3 And Another, Civil Application No. 159 of 2004 (unreported) and Naibu Katibu Mkuu (CCM) v Mohamed Ibrahim Versi And Sons, ZNZ Civil Application No. 3 of 2003 (unreported). On his part, Mr. Ndyanabo, learned counsel for the applicant, conceded that in the letter to the Registrar, Court of Appeal applying for reference, rule 119(1), (2) and (3) was wrongly cited. Rule 57(1) was the proper rule, he said. However, he was quick to observe that the error did not render the application for reference incompetent because the defect is curable. In his view, application for reference under rule 57(1) was not envisaged under the provisions of rule 45. For this reason, Mr. Ndyanabo maintained, there is no particular procedure laid down to be followed in application for reference. In this light, counsel went on, rule 57(1) gives the option for any one dissatisfied with the decision of a single Judge to apply informally to the Judge at the time when the decision is given or by writing to the Registrar. Mr. Ndyanabo also submitted that the error in citing a wrong rule in this case did not fatally affect the application because it does not go to the root of the matter. He urged the Court to take a 4 liberal interpretation of the rules in order to avoid denying justice to the parties on grounds of technicalities. For this proposition, Mr. Ndyanabo relied on the decision of the Court in Sadik Abdallah Alawi v Zulekha Suleman Alawi and Another, Civil Reference No. 29 of 1997, (not yet reported), D.T. Dobie {Tanzania) Limited v Phantom Modern Transport {1985) Ltd., Civil Application No. 141 of 2001, (unreported) and Article 107A (2) (e) of the Constitution of the United Republic of Tanzania 1977 as amended. The central issue in this case revolves around the fact that the application for reference was made under a wrong citation of the rule. On this, both Mr. Ndyanabo and Mr. Kamugisha, learned counsel for the applicant and the respondent, respectively, are generally agreed. However, the learned counsel are not at one with each other with regard to the consequences of wrong citation of the rule under which the application was made. While Mr. Kamugisha is firmly of the view that the application was rendered incompetent, on the other hand, Mr. Ndyanabo vigorously opposed this view. 5 We need not be delayed in this aspect. It is now settled that wrong citation of a provision of law or rule under which the application is made renders the application incompetent. It is common ground that in this case there was an application made by way of letter Ref. JC/875/CHICO/9 of 14.9.2005 addressed to the Registrar, Court of Appeal. In the letter, the applicants notified the Registrar that the Court was being moved to vary or reverse the decision of the single Judge. The letter was copied to the respondent in order to make the respondent aware that a reference was being preferred. Being an application it is our view that it was necessary to cite the applicable rule under which it was made. In the instant case, not only was the proper rule 57(1) not cited, but an inapplicable rule 119(1), (2) and (3) was instead cited. It is elementary that this rule has no relevance at all to the subject matter in hand. It deals with reference on matters relating to taxation where, any person who is dissatisfied with a decision of the Registrar in his capacity as taxing officer, may refer the matter to a 6 Judge of the Court. This is different from the reference envisaged under rule 57(1). As already observed, in numerous cases, this Court has held that wrong citation of the law or rule, renders the application incompetent. See for instance, Aloyce Mselle v The Consolidated Holding Corporation, Civil Application No. 11 of 2002, M/S Ilabila Industries Ltd. & 2 Others v Tanzania Investment Bank & Another, Civil Application No. 159 of 2004 and Naibu Katibu Mkuu (CCM) v Mohamed Ibrahim Versi & Son, Civil Application No. 3 of 2003 (all three unreported). In Aloyce Mselle, among other grounds of appeal, the complaint was that the High Court was not properly moved when leave to appeal was granted. In the chamber application section 5(2) (c) was cited instead of section 5(1) (c). The Court inter alia stated: --- there is an unbroken chain of authorities of this Court to the effect that wrong citation of a provision of law under which an application is made renders that application incompetent. Such decisions include: NBC v Sadrudin 7 Meghji, Civil Application No. 20 of 1997, Rukwa Autoparts Ltd v Jestina G. Mwakyoma, Civil Application No. 45 of 2000; and Citibank {T) ltd. v TIC & Others, Civil Application No. 65 of 2003. So, Mchome, J. should not have granted leave to appeal. In this case, as indicated earlier, Mr. Ndyanabo strenuously urged that these cases do not apply because this is a reference in which there is no laid down procedure for filing the same. With respect, we agree that as yet there is no statutory or judge made rule regarding the procedure to be followed in filing a reference. Nonetheless, there is no denying the fact that there is rule 57(1) of the Court Rules, 1979 which specifically provides for the Court to be moved on a reference to reverse or vary the decision of a single Judge. This is the rule which should have been cited in the application for a reference by way of a letter. As correctly submitted by Mr. Ndyanabo, rule 57(1) gives the option for an application for a reference to be made to a Judge informally at the time the decision is given or by writing to the Registrar. Once the option is made to apply for a reference by writing a letter we think it is imperative to 8 cite the correct provision of the rule, namely rule 57( 1) in this case. We do not accept Mr. Ndyanabo's contention that the error was technical which does not go to the root of the matter. On the contrary, we are of the settled view that this is a fundamental matter which goes to the root of the matter. Rule 57(1) is the foundation upon which application for reference to the Court is made. Once the application is based on wrong legal foundation, it is bound to collapse. Mr. Ndyanabo sought to rely on the decision of this Court in Sadik Abdallah Alawi (supra) to support his assertion that the application was not rendered incompetent for failure to cite the appropriate rule. In our view, this case is distinguishable. In Sadik Abdallah Alawi, the application for reference was brought by way of a Notice of Motion supported by affidavit which did not contain a statement of fact. Rule 57(1) was cited as the rule under which the application was made. Preliminary objection was raised that the application was incompetent because the affidavit did not contain a statement of fact. The Court overruled the preliminary objection on 9 the ground that even if the affidavit was ignored the letter of notification to the Registrar in which rule 57(1) was cited was sufficient. In the instant case, not only was rule 57( 1) not cited, but a wrong, inapplicable rule 119(1), (2) and (3) was cited. The two cases are in our considered opinion, widely different. Finally, we wish to touch briefly on the point raised by Mr. Ndyanabo that the application for reference should not be rendered incompetent on account of citing a wrong provision of the rule because that would be contrary to the provisions of Article 107A (2)(e) of the Constitution of the United Republic of Tanzania 1977. The Article provides: 107A (2)(e): Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria, mahakama zifuate kanuni zifuatazo, yaani: (e) kutenda haki bila ya kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka. In essence, this translated to the effect that in dealing with criminal or civil cases, the courts shall administer substantive justice without undue regard to technicalities. In this case, as already indicated the circumstances are such that we can hardly glean any element of technicalities involved. The role of rules of procedure in the administration of justice is fundamental. As stated by Collins M.R. in Re Coles and Ravenshear (1907) 1 KB 1 rules of procedure are intended to be that of handmaids rather than mistresses. That is, their function is to facilitate the administration of justice. Here, the omission in citing the proper provision of the rule relating to a reference and worse still the error in citing a wrong and inapplicable rule in support of the application is not in our view, a technicality falling within the scope and purview of Article 107A (2)(e) of the Constitution. It is a matter which goes to the very root of the matter as urged by Mr. Kamugisha. We reject his contention that the error was technical. All in all therefore, for the foregoing reasons, the preliminary objection is sustained. Consequently, the application being incompetent is struck out with costs. .. 11 DATED at DAR ES SALAAM this 21 st day of March, 2006. A.S.L. RAMADHANI JUSTICE OF APPEAL Pi:·~-~ ,'?,1 D.Z. LUBUVA !. ,, -~1~ JUSTICE OF APPEAL ; \_ . }/<i~ \ . ,., ., ~-~ I ~ ~= /' .,e,, '<"' ~ ,_ r,'- ----- ,,.-7· /2 J.A. MROSO . -~~,,;..;;. JUSTICE OF APPEAL I certify that this is a true copy of the original.