chongquing foreign trade economic cooperation co ltd vs zakayo m msengi 2016 tzhc 2071 12 march 2016

IN THE HIGH COURT OF TANZANIA AT TABORA M ISCELLANEOUS LAND APPLICATION No. 17 OF 2016 (Arising from High Court Land Case No. 3 o f 2012. at Tabora). CHONGQUING FOREIGN TRADE AND ECONOMIC COOPERATION (GROUP) CO. L T D ............................................. APPLICANT VERSUS Z A KAYO M. MSENG1.......................... .. RESPONDENTS ( 08 & 12/3 '2016 Utarnwa. J This is a ruling on a preliminary objection (P O ) raised by the respondent (■ ZAKAYO M. MSENGI against the application preferred by CHONGQUING FOREIGN TRADE AND ECONOMIC COOPERATION (GROUP) CO. LTD (the applicant). According to the chamber summons which is supported by an affidavit o f one Peng Ding, the application is preferred under some provisions o f law and I quote verbatim the relevant part of the chamber summons showing the provisions for a readymade reference: “ M a d e u nd e r section 14( 1) o f the L im itation Act and o rd e r X X X I X R U L E 5 and scction 95 o f the C ivil P r o c e d u r e C o d e , 2002 R. E. o f the L a w s and any other e na b li n g p ro vi si on s o f the l aw. " (bold e m p h as i s is provided). Page 1 of 11 \ In the chamber summons the applicant seeks for the following orders which I also reproduced verbatim for the same objective o f an expeditious reference: 1. That this Hon. C o u r t be pleased to ex te nd t ime lor wh i ch the a ppli cant can be hear d on the application for stay o f exe cu tio n o f the High C o u r t ' s D e c r ee in Land C as e No. 3/2013 pe nd in g he ar in g and de t er mi na t io n o f the application to l odge a notice o f appeal out o f time. 2. T h a t h a v in g e x t e n d e d time, this Hon. Co ur t stay exe cu tio n o f the said de cr ee dat ed 2 9 / 1 1 / 2 0 13 pen d i ng d e te rmi na ti on o f the appl icat ion to lodge a notice o f a ppe al out o f time. 3. A n y o th er r e l ie f t he c our t shall d e e m j u s t to grant. The PO was raised along with the counter affidavit against the application. It was previously based in five points. However, at the hearing the learned counsel for the respondent dropped the fifth point, hence four only were argued. The four surviving points o f the PO were these: 1. That, the application is incompetent for wrong and or non-citation o f the enabling prov isions o f the law. 2. That, the application is misconceived as the same is filed in this court which has no jurisdiction to hear and determine stay o f execution in a matter for appeal to the Court o f Appeal o f Tanzania (herein after called the CAT). 3. That, having been not signed and stamped by the one who drew and filed the chamber summons and supporting affidavit thereof then the application is incompetent before the court. 4. That, the application is incompetent as prayers in the chambcr summons are not recognised. For these limbs o f the PO the respondent urged this court to strike out the application for incompetence. The applicant vehemently contested the PO.The PO was argued orally, and the respondent was represented by Mr. Mussa Kassim learned counsel while the applicant was advocated for by Mr. J. Page 2 of 11 Byabato learned advocate. Both sides made lengthy submissions for and against the lour points o f the PO. hence this ruling. In m\ adjudicating plan I will test the points o f the PO in the following pattern; I will start with the first and second points cumulatively (which upon the submissions by the parties I noted that they are closely related). In this assignment I will consider the law and arguments related to the two points and make a finding thereof before I consider the arguments and law regarding the other points. In ease I will overrule the two first points. I will proceed to test the rest of the points. But if I will uphold the first two points o f the PO I will make necessary orders. My adjudication strategy is based on the ground that the first two points o f PO are legally forceful enough to dispose o f the entire matter if upheld. In supporting the first two points o f the PO Mr. Mussa learned counsel for the respondent argued that the applicant wrongly cited the provisions o f the enabling law in the chamber summons because the application is pegged under s. 14 (1) o f what the applicant calls the "Limitation Act" but it (the applicant) did not indicate which chapter o f the laws o f the country is that. He further contended that the applicant also based the application on Order XXXIX rule 5 and s. 95 o f what it referred to as the "Civil Procedure Code, 2002 R. E.“ which did not also indicate which chapter o f the laws was it. He charged that such cited laws do not exist in Tanzania. Mr. Mussa learned counsel further submitted that since the applicant applies for the orders mentioned above pending the determination o f hearing o f an application for lodging a notice o f intention to appeal to the CAT (against the original decree o f this court in Land Case No. 3 o f 2012 between the parties in this application) out o f time, then if the two wrongly cited Acts meant the Law o f Limitation Act. Cap. R. E. 89 and the Civil Procedure Code. Cap. 33 R. E. 2002respectively. such statutes will not apph in this matter. The statutes apply in appeals from subordinate courts to this court only. He contended further that Page 3 of 11 appeals from the High Court to the CAT are governed by the Appellate ! Jurisdiction Act. Cap. 141 R. E. 2002 and the Court o f Appeal Rules. GN.No. j 368 o f 2009 (the Rules) only. The applicant could have thus applied for the stay | o f execution before the CAT under rule 11 (2) (b) o f the rules. * The learned counsel also submitted that the applicant did not specify the ; sub-rules o f Order X XX IX rule 5 under which the praversin the chamber . summons were made though rule 5 has four sub-rules. He added that sub-rule 3 • o f rule 5 also has sub-sub-rules but the applicant did not bother to specify them. j He also contended that the provisions o f Order XXXIX rule 5 (1) o f Cap. 33 are j related to matters in which an appeal has been filed which is not the case in the • matter at hand. r The counsel added that s. 14 (1) o f Cap. 89 applies for extending time for r appeals and applications yes. but it does not apply in extending time for filing j i applications for staying decrees like the one at hand. He thus argued that for the 1 irregularities demonstrated above this court lacks jurisdiction to entertain the , application at hand. He also contended that the law requires the applicant to pay ; i security for costs before the stay is granted, but it did not do so. He thus urged ‘ this court to strike out the application for been incompetent. In replying to the submissions in chief regarding the first two point o f the PO Mr. Byabato conceded that the citation o f the enabling provisions did not indicate the chapters o f the two statutes cited. However, he argued that the miss-citation o f the chapters was not fatal to the extent o f rendering the application incompetent. The court can take inference that the cited provisions ; are the proper enabling ones under the circumstances o f the case for the prayers sought in the chamber summons. This is so he submitted, since no notice of intention to appeal to the CAT has been filed. He further charged that the omission does not prejudice the respondent in any way. Mr. Byabato learned counsel also submitted that the non-specification o f the sub-rules o f rule 5 o f Order XXXIX o f Cap. 33 is also a not a big issue since the Page 4 of 11 applicant wanted to apply all the sub-rules o f rule 5. He also argued that Order* XXXIX o f Cap. 33 and s. 14 (1) o f Cap. 89 do not apply to appeals from, subordinate courts to the this court only, they also apply in matters pending \ appeal to the CAT when a notice o f intention to appeal has not been filed yet a s ; in the matter at hand. The CAT rules do not thus apply at this stage. In his rejoinder submissions Mr. Mussa learned counsel reiterated his. submissions in chief and underscored the prayer for striking out the application. : From the arguments by the parties regarding the first two points o f the PO it: is clear that parties do not dispute that there is miss-citation o f the two enabling; statutes for want o f indicating the chapters thereof. The parties do not also; dispute that the applicant did not specify under which sub-rule o f rule 5 toj Order XXXIX o f Cap. 33 was the application based. The squabble between the parties is in respect o f the legal effect o f such omissions in citing the enabling j laws. While the respond e n l argues that the omissions are lethal to the application the applicant maintains that they are not. ! The issue under this heading is thus whether or not the omissions complained o f by the respondent are fatal to the application to the extent o f rendering the application incompetent. In my view, the way the applicant cited the two statutes and the provisions thereof is very odd and demonstrates a great laxity in drafting the chamber summons. Parties to court proceedings do not just| cite statutes the way they feel convenient. An Act o f parliament in this country is identified from other Acts by its approved modes o f citation. Parties moving! courts in this country, especially when legally represented must thus fully cite the statutes under which they peg their applications. A part}' can properly cite a statute in its original short name as indicated in the statute itself and specify the year of its enactment and its chronological number o f enactment in a given calendar year. Under this style o f citing pieces o f legislation the applicant was expected to cite the two statutes thus: " The Civil w ^---------------------- — * Procedure Code. Act No.__49_of_ 1966.'" The short name for citing this Act is Page 5 of 11 provided for under s. 1 o f the Act which provides that “This Act may be cited as the Civil Procedure Code.” Regarding the other statute the applicant could have cited it thus; “The Law o f Limitation Act. No. 10 o f 1971." Its short name for citation is provided for under s. 1 o f the Act providing that “This Act may be cited as the ^ ivil ProcedureCode?^) Alternatively a party to court proceedings can cite a statute according to its chronological chapter-number assigned to it by virtue o f the Revision Editions o f our laws made under the Laws Revision Act, Chapter 4 o f the Revised Edition o f 2002. Under this style o f citing statutes the word “Chapter" is abbreviated as “Cap.” and the term “Revised Edition*' as “R. E.” Bv following this style o f citing legislations the applicant was expected to cite the two statutes under discussion thus; “The Civil Procedure Code. Cap. 33 R. E. 2002” and “the Law o f Limitation Act. Cap. 89 R. E. 2002.” This is how a statute could be properly identified under this style which is also noticeable judiciously under s. 20 o f Cap. 4 R. E. 2002 and s. 58 o f the Law o f Evidence Act. Cap. 6 R. E. 2002.This is also the way statutes are cited under the alphabetical and chronological indexes o f the Revised Edition o f Law s under the Supplementary Volume o f the Rev ised Edition of our Laws o f 2002. A panel o f three Judges o f this court also solidly underscored the existence o f the above discussed Revised Editions o f the laws in the case o f the Legal and Human Rights Centre and others v. Attorney General |2006] 1 EA 141 where it held that the court takes judicial notice under section 58 (1) (a) o f the Law of Evidence Act (Chapter 6 RE 2002) that there is now a revised edition of the Laws o f Tanzania. The revised edition is for the year 2002 and it was prepared on the authority o f the Laws Revision Act (Act number 7 of 1994) which was made operative retrospectively by Government Notice number 124 published on 6 May 2005. The Act provided for the preparation and publication o f a revised edition o f the Laws of Tanzania and lor continuous revision and maintenance up to date. Page 6 of 11 For the observations I have made above, the way the applicant identified the two statutes by citing them as c>the Limitation Actv and ;*the Civil Procedure Code, 2002 R. E.” without mentioning either their respective chronological numbers and years o f enactment or their respective chronological chapter- numbers did not meet any o f the approved ways o f citing statutes in this country. The miss-citation was thus in my view a wrong citation and a serious blunder entitling Mr. Mussa learned counsel for the respondent to conclude that the cited statutes are non-existent in the country. 1 could have thus answered the issue posed herein above in favour o f the respondent for this reason only. However, even if it is presumed (without deciding) that the applicant style o f citing the statutes was not fatal, this court could still find serious shortcomings in the citation o f the provisions o f the Acts. The provisions o f s. 14( 1) of Cap. 89 for example are totally inapplicable in extensions o f time related to execution o f decrees since the same provisions expressly guide so as rightly argued by Mr. Mussa learned counsel. Again, the fact that the applicant did not specify the sub-rule o f rule 5 of Order XXXIX o f Cap. 33 under w'hich the application was based was fatal in law since the sub-rules guide on different circumstances. The learned counsel for the applicant could not thus argue that the application was based on all the 4 sub-rules. Sub-rule (2) for example, gives powers to a court which passed the decree to stay execution o f the decree where an application for stay is made before the expiry of the time for appealing, which is not the case in the matter at hand. Again, sub-rule (4) gives the court powers to make orders staying execution o f decrees exparte, but this is not the case in the matter under discussion since the applicant did not make any exparte application for the stay. In my view Mr. Byabato learned counsel seems to be taking the issue of wrong or non-citation lightly. But unlike in Uganda, the Tanzanian position is very different. In Uganda wrong or non-citation o f an enabling law in an application or even a defect in an affidavit supporting the application are not Page 7 of 11 fatal if the court has the requisite jurisdiction to entertain the application, see the decision by the Court o f Appeal o f Uganda sitting at Kampala in Saggu v. Roadmaster Cycles (U) Ltd [2002] 1 EA 258. In this land however, wrong or non-citation of the enabling law’ in an application is a big issue so to speak. It is a fatal omission that renders the application incompetent and erodes the jurisdiction o f the court in entertaining the application. There is a heap o f authorities for this stance, see for example; the decision bv the CA T in Chama Cha Waliniu Tanzania v. The Attorney General, Civil Application No. 151 of 2008, CAT at Dar es Salaam (unreported), Naibu Katibu Mkuu (CCM) v. Mohamed Ibrahim Versii and sons, Zanzibar Civil Application No. 3 of 2003, CAT at Dar es Salaam (unreported) and Almas Iddie Mwinvi v. National Bank o f Commerce Civil Application No. 88 o f 1999, CAT at Dar es Salaam (unreported). The CAT in the case o f Chama Cha Walimu Tanzania (supra)went further andheld that the omission to cite the enabling provisions o f law or wrong citation in applications is not a procedural technical matter within the scope of article 107A o f the Constitution o f the United Republic o f Tanzania. 1977 (Cap. 2. R. E. 2002). it is a serious omission that goes to the root o f the matter. Moreover, a panel o f three Judges o f this court (in which I was a member) also unanimously held in Paul J. Mhozya v. the Permanent Secretary, Ministry of Education and the Attorney General, Misc. Civil Cause No. 71 of 2003, HCT at Dar Es Salaam (Unreported) thatthe omission to cite a specific or proper provision o f law under which the matter _is_ based affects the jurisdiction of the court to entertain the matter. The view just highlighted above was further underscored by the CAT when it held that the court does not derive any jurisdiction to entertain the application before it from the w'rong citation or non-specification o f the enabling law under which the application is made, see the case o f M/S Ilabila industries Ltd. & 2 Page 8 of 11 Others v. Tanzania Investment Bank & Another, CAT Civil Application; i No. 159 of 2004, at Dar es Salaam (unreported). It also held in the case ofj Citibank Tanzania Limited v. Tanzania Telecommunications Co. Ltd and 3j others, CAT Civil Application No. 64 of 2003, at Dar es salaam (unrcportcd); that a court derives jurisdiction to entertain an application before it from the. properly specified sub-section o f the enabling provisions o f the law. In other| words the CAT envisaged that without proper citation o f the enabling law or; without specifying a sub-section o f the enabling section the court lacks the: requisite jurisdiction. This position on the effect o f non-specifying the sub-; section or paragraph o f a section o f the enabling law was also underscored in; Edward Bachwa and 3 others v. the Attorney General and another, C A T ? Civil Application No. 128 of 2006, at Dar es salaam (unreported) in which the CAT underscore that there is a chain o f authorities discarding that particular! omission. i I am therefore, settled in mind that according to our law categories o f wrong' or non-citation o f enabling provisions o f law are never closed, they range from absolutely missing or failure to cite the relevant law. citing an irrelevant law.’ failure to specify an applicable sub-section of the section o f law . to an improper citation of the enabling statute as demonstrated in the matter at hand. There may' however be other ways o f wrong citations o f laws.In Ernest A. M wakasala! and another v. Kinondoni Municipal Trade Officer and two others. High1 Court Misc. Civil Case No. 96 of 2005, at Dar es salaam (unreported) lor! instance. I held that citing the statutes o f this land as ordinances amounted to a 1 wrong citation o f the enabling provisions since ordinances no longer exist upon the enactment o f Cap. 4 (supra) and the enforcement o f Revised Edition of Laws.The position according to s. 23 (2 ) o f Cap. 4 is that the text o f the laws in the ordinances have been superseded by the respective texts o f the laws Page 9 of 11 contained in the Revised Edition and annual supplements prepared under Cap. 4. One o f the rationales for theabove underscored rule against improper or non­ citation of the enabling laws in applications is that, it is intended to relieve the courts from the torment o f perusing the bulky existing statutes, sections and sub-sections o f such statutes in search o f the applicable provisions o f law. For this understanding the CAT once made useful remarks in Bahadir Sharif Rashid and 2 others v. Mansour Sharif Rashid and another, CAT Civil Application No. 127 of 2006, at Dar es Salaam (Unreported), and I quote the same for an expedient reference: ‘T h e c our t s ho ul d not be m a d e to go on a fishing e x p ed i t io n p o u r i n g o v e r sections, rules a nd the like in order to ascertain w h e t h e r or not it has j u r is di c tio n to m a k e the particular or de r’* In my view therefore, this rule against improper citation o f enabling law is fundamental and cannot be relaxed by courts o f law. It must also be noted here that most o f the precedents cited above were decided by the CAT. The law provides that CAT decisions bind tribunals and courts subordinate to it including this court, irrespective o f the correctness or otherwise o f such decisions, see Jumuiya va Wafanyakazi Tanzania v. Kiwanda Cha Uchapisha ji cha Taifa 11988 J TLR. 146. This stance o f the law is by virtue o f the common law doctrine o f stare decisis which is applicable in our jurisdiction too. I am thus bound to follow the stance o f the law as guided by the CAT in those precedents. 1 consequently answer the issue posed herein above positively to the effect that the omissions complained o f by the respondent are fatal to the application to the extent o f rendering the application incompetent. This court thus lacks jurisdiction to entertain the application for the omissions. Page 10 of 11 For the finding I have just made herein above, which said finding is capable o f disposing o f the entire application I find m yself relieved from discussing other arguments by the parties related to these same first two points o f the PO. I am also relieved from considering the rest o f the points o f the PO since doing so will amount to a superfluous or acadcmic exercise o f kicking a died horse which is not the core purpose of the adjudication process. I thus strike out the application with costs since in law costs follow event. It is so ordered. JI-IK. UTAMWA JUDGE 12/04/2014 12/ 0 4 / 2016 CO RAM: Hon. Utamwa, J. For Applicant: Mr. J. Byabato advocate For Respondent:Mr. Musa Kassim BC:Mr. Omari Mkongo (RMA). Court: Rulingdelivered in the presence of Mr. Byabato learned counsel for the applicant and Mr. Musa learned advocate for the respondent this 12lh da\ o f April, 2016 in court. J.H.K. UTAMWA JUDGE. 12/ 04/2016 Page 11 of 11