director kahama town council another vs vumilia producers and shopping centre co ltd 2015 tzhclandd 21 21 september 2015

IN THE HIGH COURT OF TANZANIA AT TABORA. MISC. LAND APPLICATION No. 15 OF 2015 1. DIRECTOR KAHAMA TOWN COUNC11 ................. ^ A P P L IC A N T 2. THE CHAIRMAN. KAHAMA TOWN COUNCIL 2 ndAPPL1CANT I Versus: VUMILIA PROD UCERS AND SHOPPING CENTRE CO. L T D ..........................................................................RESPONDENT RULING This is a ruling on two issues. The fust issue relates to a p relim in ary objection (PO) raised, by the respondent. 'VUMILIA PRODUCERS AND SHOPPING CENTRE CO. LTD against the application filed by the two applicants, the DIRECTOR . KAHAMA TOWN COUNCIL and the CHAIRMAN. KAHAM A TOWN COUNCIL (first and second respondent respectively). The second issuewas raised b\ the court 5wo-/7?orw(hereinafter called the co n n 's issue) and orally argued by the parties upon an invitation by the court to do so. The application was preferred by \va\ of chamber summons supported by an affidavit under sections (ss.) 43 of the Land Disputes Courts Act. Cap. 216 R. E. 2002; 79 o f the Civil Procedure Code. Cap. 33 R. E. 2002 and Order XLIII rule II o f Cap. 33. In the application the applicants are seeking the following orders: 1. That this honourable court be pleased to make revision of-the decision o f the District Land and Housing Tribunal (DLHT) for Shinyangain Misc. Land Application No. 25 o f 2015 dated 20th F e b ru a n . 2015. 2. Costs o f this application be provided for. 3. Any other equitable relief (s) that this court may deem fit to grant. The PO was footed on a single point o f law that the application is misconceived because if the applicants were aggrieved by the D LHT decision they ought to have preferred an appeal to the High Court instead o f filing the current application. On the other hand the court's issue was whether or not the application was competent for being preferred under ss. 43 o f Cap. 216 and 79 o f Cap.3 3 without specifying the enabling sub-sections o f thoseprovisions o f the law. The issue followed the fact that the court had suspected that the omission to specify the sub-section was fatal to the application as per the law. In his submissions in chief supporting the PO Mr.Mtaki learned counsel for the respondent argued that it is the law that where there is a right o f appeal, a party aggrieved'by a decision must resort to the appeal and not to revision.A revision is exercisable only where there is no right o f appeal and is not an alternative to an appeal. He cited decisions o f the Court o f Appeal o f Tanzania (CAT) in Transport Equipments v. Valambva [1995] TLR 161 and Alais Pro-Chemie v. Wella A.G. [1996] TLR 269 to support the contention. The learned counsel further argued that Regulation 24 o f the Land Disputes Court Regulations, Government Notice (GN) No. 174 o f 2003 provides that a party aggrieved by the decision o f the DLHT has the right to appeal to the High Court. The applicants thus wrongly filed this application instead of exercising that right of appeal. Regarding the court's issue the learned counsel for the respondent contended that the application was also incompetent for incomplete citation o f the enabling laws. He submitted that s. 43 o f the Cap. 216 has two sub-sections but the applicant did not specif) under which sub-section the application was based. He further submitted that the applicant would have cited s. 43 (1) (b) of the Act as the proper enabling law. but he did not do so. The learned counsel also argued that the applicant committed the same act by not specifying the sub­ section o f s. 79 o f Cap. 33 which contains two sub-sections.He also submitted that the application is liable to be struck out. He thus urged this court to strike it out. in his replying submissions against the PC) Mr.Magala learned counsel for the applicants argued that the applicants could not appeal against the decision o f the DLHT since the same did not finally determine the case. According to s. 47 o f Cap. 33 as amended by the Written Law (Miscellaneous Amendments) Act No. 25 o f 2002 such orders are not appealable. The learned counsel also argued that s. 43 (1 ) (b) o f Cap. 216 empowers this court to entertain revisions against orders made by DLHT in case o f any error. The order at issue was erroneous, hence revisable bv this court under such provisions o f the law. He cited the errors in the order as being the following; that it offended s. 14 (]) (b) o f the Local Government Urban Authorities Act. Cap. 288 R. E. 2002 which requires suits against the Local Governments to in their own names. He supported the argument by the case o f DonatusMkumbo and another v. the District Executive Director of Bariadi District Council, High Court Civil Case No. 14 of 2009, at Tabors. The other error according to the learned counsel was that, the order by the DLHT granted an application which was erroneously filed without any existing main suit. He also cited the case ofCalico Textile Industries Limited v. Zenon Investments, Registrar of Titles and NBC Holding Corporation [1999] TLR. 100 (HC) to suppoil the contention.He mentioned the third error as failure by the DLHT to give the applicant the right to be heard as required by the Constitution and Order XXXVII o f Cap. 33. Regarding the court's issue the learned counsel for the applicant contended that the omission to specif} the sub-section under s. 43 o f Cap. 216 is not fatal in law since the whole o f s. 43 gives this court both supervisor) and revisional powers. He also argued that the failure to specif}' the sub-section under s. 79 o f Cap. 33 was equally not fatal to the application for the same reasons. He cited the decision o f this court in Arusha City Council v. HM Tires and Services Centre Ltd. HC Civil Revision No. 10 of 2013 at Arusha and argued that in this case, the court exercised its revisional pow ers though no chamber summons was filed in court. He thus contended that though the case did not decide an issue similar to the one at hand, that case is relevant in the matter under discussion. In his rejoinder submissions the learned counsel for the respondent argued that Cap. 33 does not apply in appeals from DLHT to this court unless there is a lacuna in Cap. 216 which is not the case. He cited regulation 24 o f the GN No. 174 o f 2002 to cement the point. He also distinguished the Arusha City Council case from this case and reiterated his submissions in chief. As hinted earlier the two issues to be determined here are these: 1. Whether or not it was proper for the applicants to apply for revision amid the existence o f their right o f appeal. 2. Whether or not the application is competent for being preferred under ss. 43 o f Cap. 216 and 79 o f Cap. 33 without specifying the enabling sub-sections o f the respecti ve statutes. As my adjudicating plan I will first test the-second issue and if need will arise 1 will test the first. This strategy follows my understanding that the first issue depends on the second issue being answered affirmatively since it is through this second issue that the court will assess if it has properly.been moved in this same application. This is an important issue to. be decided before this court determines whether or not the applicants have the right to file this application for revision in the existence o f their right o f appeal. Regarding the second issue. 1 am settled in mind that the law is currently ' settled that where an enabling law of an application is a sub-section o f a statute. then failure to specify that sub-section of the provisions of the law under which! an application is preferred is fatal to the application. This omission amounts toj non-citation of enabling provisions of the law and renders an application incompetent as precisely maintained by the learned counsel for the respondent] I There are man\ precedents supporting that stance, see for example: Chama cha Walimu Tanzania v. The Attorney General, CAT Civil Application No. 151j of 2008, at Dar es Salaam (unreported). M/S llabila Industries Ltd. & 2\ f others v. Tanzania Investment Bank & another CAT, Civ. Application Noj i 159 of 2004, at Dar es Salaam (unreported)and!ngoma Holding Limited v.| i Kagera Co-Operative Union (1990) Ltd and Jackem Auction Mart &i Brokers Ltd, CAT Civil Appl. No. 166 of 2005, at Dar es Salaam! i (unreported). j i i The law further commands that, wrong or non-citation o f enabling law’ inj applications is not a mere procedural slip: it is fatal and goes to the root o f the! matter. There is- again a heap o f precedents to that effect; see the CAT decisions; w i i in ;he Chama Cha Walimu Tanzania caseisuprahNaibuKatibuMkuu (CCM)j v. Mohamed Ibrahim Versii and sons, Zanzibar CAT Civil Application No.j 3 of 2003 uinreported) and Almas IddieMwinyi v. National Bank Of Commerce Civil Application No. 88 of 1999 (unreported). See also the! decisions by this court in the cases o f Said SaiimBakhresa and Co. Ltd v. Master of MV. D enier Trade Ltd, London C/O M r.Denler Premier Dar es1 salaam. High Court Commercial Court Case No. 46 of 2004, at Dar es salaam {unreported) and Ernest A. Mwakasala and another v. Kinondoni Municipal Trade Officer and two others. Misc. Civil Case No. 96 of 2005, at Dar es salaam (unreported) w hich. I made recently. This rule applies in all applications before all courts o f law. Moreover. 1 am o f the settled view that the rationale for this rule against wrong or non-citation of enabling lawsin applications is that, it assists the court to determine whether it has jurisdiction to entertain the matter and whether the person moving the court is entitled under the law. to the sought orders before the court tests the merits o f the matter. Moreover, the rule is intended to relieve the court from the torment o f perusing the 'bulky existing sections and sub­ sections o f statutes in search o f provisions serving the purposes just mentioned herein above. 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 o f 2006, at Dar es Salaam (Unreported), and I quote the same for a readymade reference; "The court sh ou ld not be m ad e to g o on a fish in g e x p e d it io n p o u r in g o v e r s e c tio n s , rules and the like in order to ascertain w h e th e r or not it has j u r isd ictio n to m a k e the particular order” In my view therefore, this rule against wrong or non-citation of enabling law cannot be relaxed by courts o f law. . ‘ In indeed the learned counsel for the applicants seemingly acknowledges the importance o f specifying a sub-section o f the enabling law since in his arguments regarding the PO raised by the respondent he argued that s. 43 (1) (b) o f Cap. 216 also empowers this court to entertain revisions against orders made by a DLHT in case o f any error. That may be true yes. but he could not rely upon such sub-sub section o f the statute by merely citing it in his submissions without first citing the same in the chamber summons as an enabling law for moving this court. This was thus an afterthought that could not be o f any use to the applicants. The applicants cannot thus argue that failure to specify the enabling sub­ section o f the law is not fatal. The\ cannot also rely upon the Arusha City Council case for the following grounds: the case is distinguishable as rightly argued by the learned counsel for the respondent since it did not decide any issue similar to the one at hand and it did not revise any decision o f the D LH T’ made under Cap. 216. but of a Resident Magistrates* Court. Again, even if it would be taken that the case decided on an issue similar to the one under discussion the same could not be useful to the applicants since it was decided by another Judge o f this court, the'decision of whom does not bind me. especially where there are contrary decisions by the CAT. It must be bom in mind that decisions b} the CAT. being the highest couii fn the hierarch o f our court system, are binding to tribunals and courts.subordinate to it including this court, irrespective o f the correctness o f such decisions, see JumuiyayaWafanyakazi. Tanzania v. R w a n d a Cha .Uehapishaji cha Taifa [1988] TLR. 146. This stance is by virtue oi the ^common law doctrine of stare decisis which is applicable in our jurisdiction, too. But in citing the Arusha City Council case 1 understood the learned counsel for the applicant as trying to rely upon the general revisional powers o f this court which may be exercised even by this court suo-motu following complaints against injustice through any means including mere letters. That ma\ be a coirect position o f the law \e s in some circumstances. However, my view is that, such a course must be left to the discretional powers o f this court in calling tor the records of lower court, inspecting them and making any order it finds it just, to make, according to the circumstances o f the case. That course cannot apply where a part} to court proceedings moves the court for specific orders the way the applicants in the matter at hand did. Where the party moves the court by an application (chamber summons) seeking specific orders, he must follow the rule 1 discussed above by properly citing the specific enabling sub­ section o f the law as underscored by .the CAT through the precedents cited herein above. 1 underlined this particular view on when this court may suo-mow make revisional orders w ithout any chamber application and what it should do where a part} to court proceedings moves it for specific revisional orders through a chamber summons, see SaleheOmaryNyikoand two others v. the Director of Public Prosecution. HC Criminal Revision No. 3 of 2013, at Dar es salaam (unreported). This one was criminal revisional matter but by parity of reasons the principle applies mutatis mutandis in civil revisional matters since this court has revisional jurisdiction for the sake o f doing justice in both kinds of proceedings. My further view is that.while it is a basic principle o f law that courts should not permit procedural technicalities to defeat justice (as instructed under article 107A (2.) (e) o f the Constitution o f the United R epublic-of Tanzania, 197-7. Cap. 2. R. E. 2002). it is the duty o f parties coming to courts, especially those ably represented by learned counsel like the applicants in the matter at hand, to comply with the procedure set by the law. otherwise there will be no need o f having procedural rules. The CAT in ZubcriMussa v. MS. Shinvanga Town Council, Civil Appeal No. 16 of 1999, at Mwanza held to the effect that the provisions o f article 107A (2) (e) of Cap. 2 do not encourage unfounded breach o f procedural rules: instead they underscore the conformity with the law. For the above grounds. 1 determine the second issue negatively to the effect that the application is incompetent -for being preferred under ss. 43 of Cap. 216 and 79 o f C ap.33 without specifying' the enabling sub-sections o f the respective statutes. The rem ed\ o f an incompetent application in law is none other than a striking out o f the same. Having made the finding above. 1 am not obliged to test the first issue since its examination depended much on the second issue being determined affirmatively. Again, the finding in respect o f the second issue suffices to dispose o f the entire matter. Testing the first issue will thus amount to a superfluous exercise o f kicking a dead horse or toiling for an academic exercise which is not the objective o f the adjudication process. •I therefore, strike out the application. I also order the applicants to pay costs for the application. This order follows the understanding that it is settled law o f this land now that: costs follow event unless the court records reasons for • not following that’general rule, see s. 30 of Cap. 33 and the CAT decision in the case of Nj oro Furniture Mart Ltd v. Tanzania Electric Supply Co Ltd [1995]TLR 205. In the matter at hand. 1 lack reasons for supporting my departure from that general rule and the counsel for the plaintiffs did not suggest one. It is accordingly ordered. JHK. UTAMW A JUDGE 21/9/2015 21/9/2015 CO RA M : Hon. Utamwa. J. For Applicants: Mr. Mtaki advocate for Mr. Magala advocate. For Respondent:Mr. Mtaki advocate. BC: M/s. DottoKwilabya. . Court: Ruling delivered in the presence'o f Mr.Mtaki learned counsel for the respondent who also holds briefs for Mr.Magala learned counsel for the applicants, in. chambers this 21SIday o f September. 2015. J.H.K. UTAMWA JUDGE. 21 9/2015