20170809 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 534 OF 2016 EDNA ANDREW KIONDO ...................... APPLICANT

VERSUS ELIZABETH KIONDO ......................... RESPONDENT

RULING MKASIMONGWA, J. This is an application for orders that ELIZABETH KIONDO, the Respondent, appears personally in court and show cause why she should not be committed to prison for contempt of a lawful order of this court dated 14th of April, 2014 and that the Respondent immediately complies with the court order by paying the Applicant the adjudged sum of money and further handing over to the Applicant all original documents in respect of Plot No 174 Block 4 Mbweni, JKT Kinondoni Municipality and a House and Farm (8 Acres) located at Maramba Area Tanga Region in the presence of the court. The Application is brought by EDNA ANDREW KIONDO and it is by way of Chamber summons filed under Order XXl Rule 96 and Section 68 (e) of the Civil Procedure Code [Cap. 33 R.E 2002] and Section 114A (b) of the Penal Code [Cap. 16 R.E 2002] and any other enabling provision of the law. The chamber Summons is supported by the Affidavit of the Applicant. 1 In the affidavit the applicant avers that on the 4th of April, 2016 she was awarded by this court a sum of Tshs. 8,000,000/= out of Tshs. 11,516,589/59 deposited in court. The court also ordered the Respondent to handover to the applicant all documents in respect of Plot No 174 Block 4 Mbweni JKT, Kinondoni Municipality and a House and Farm (8 Acres) situated at Maramba Area in Tanga. This is by virtue of the consent order delivered by this

court on 4th April, 2014 which order the Respondent has refused to comply with amounting to contempt of court order and total insubordination of Judicial System of the country. As such the Respondent should be summoned to appear. In response to the application, the Respondent filed a Notice of Preliminary Objection on points of law that, the application is incompetently before the court because it has been brought under wrong provisions of the law and that the reliefs sought are improperly preferred by way of Chamber application. When the Preliminary Objection came up for hearing, whereas Mr. ·Msuya, the learned counsel representing the applicant, appeared, the applicant and/or his advocate were absent and there were no reasons assigned that justified the absence. The Respondent's counsel was therefore allowed to proceed ex-parte. In his submission, Mr. Msuya, the learned counsel representing the respondent contended that the two reliefs sought by the applicant as indicated in the Chamber Summons are not interlocutory in nature because they have been preferred subsequent to delivery of consent order dated 4th April, 2014. The Black's Law Dictionary 9th Editions at page 115 well defines the "Interlocutory Application". Section 68 (e) of the Civil Procedure Code 2 [Cap. 33 R.E 2002] cited in the application deals with Interlocutory Application. As the prayers do not qualify as

interlocutory the section is therefore inapplicable. Section 114A (b) of the Penal Code [Cap. 16 R.E 2002] is a penal provision under the Penal Code. It only applies in Criminal Jurisdictions. The matter at hand is a civil one and therefore Section 114A (b) of the Penal Code does not apply. Mr. Msuya also contended that Order XXI Rule 96 of the Civil Procedure Code is not relevant because it only applies where the holder of an immovable property resists issuing a vacant possession to the decree holder or purchaser. The Rule has to be read together with Rule 95 ( 1) of the Order. In the present matter there is no explanation that the Respondent has resisted to issue possession of an immovable property upon which the Applicant is the decree holder or purchaser of the property. What is sought by the applicant is the handing over of the documents and compliance with the order given by the court. Mr. Msuya concluded by submitting that where an application is brought under irrelevant provision of the law such application is incompetent as it was held in the case of CHAMA CHA WALIMU TANZANIA Vs. THE ATTORNEY GENERAL; CIVIL APPLICATION NO. 151 OF 2008, CAT (unreported). He prays the court that it strikes out this application with costs for the court has been wrongly moved. In my view in determining the preliminary objection the court has to determine whether or not the application is

brought under wrong provisions. Secondly this court has to determine whether the sought reliefs are improperly preferred by way of chamber Application. I understand that this application is brought with a view to enforcing the consent order of 3 this court delivered on 4th April, 2014 in Probate and Administration Cause No. 50 of 2004. According to the order the matter was settled on terms that EDNA ANDREW KIONDO (Applicant in this matter) is entitled to a Plot at Mbweni JKT Block 1 and payment of Tshs. 8,000,000/= out of the sum of Tshs. 11,516,586/59 deposited in court and a house and farm (8 acres) at Maramba, Tanga from the estate of the late Prof. ANDREW KIONDO. Again according to the order, the Administrator ELIZABETH KIODNO (the Respondent in this matter), undertook to ensure that the property at Mbweni is transferred in favour of the Applicant (the then Caveator) and to issue a document to facilitates the smooth handing over of the house and farm at Maramba Tanga to the Applicant. It is the thinking of the Applicant that the Respondent has faulted the lawful order of this court hence this application. The Application, as said, is brought under Order XXI Rule 96 of the Civil Procedure Code, which as rightly stated by Mr. Msuya, advocate, has to be read together with Rule 95 of the Order. The Rule involves resistance or obstruction to possession of immovable property

against the decree holder or purchaser by the Judgment debtor in which case the later may, upon application by such a decree holder or purchaser of the property, be summoned to appear and answer for the same. In the application at hand, the complaint is that the Respondent has faulted the court order which order does not involve the actual possession of the property and that the Respondent is resisting or obstructing. Evidently, the Rule does not move the court to do what is requested for. Again Section 68 (e) of the Civil Procedure Code empowers the court to make interlocutory orders other than those listed under Section 68 (a) - 4 (d) of the Code, in order to prevent the ends of justice from being defeated. As submitted by Mr. Msuya that an application for an order enforcing the decision of the court that concludes the matter does not fall within the category of interlocutory one that bears an interlocutory order. As such the section again does not move the court to make the order sought by the Applicant. In my view, any person who does any act which amounts to a contempt of the lawful order of the court may also be held criminally liable under the Penal code. A Penal Code is a Criminal Law enforcement of which may be exercised by the court sitting as the Criminal court. Although, the order of court criminally faulted by a person could be made by the Civil Court when dealing

with a civil matter, where remedy sough for such defilement of the order is sought under the Penal Code, the court sitting in dealing with such a matter must be doing so as the criminal one. Procedures adopted by the court in a criminal matter are different from that applied in a civil matter. Where one is charged under the penal code there must be a charge sheet preferred under the Criminal Procedure Act (Cap. 20 R.E 2002). Therefore when invoked the provisions of Section 114A (b) of the Penal Code, the Applicant was moving this court to sit as a criminal court which was not proper. In that premises suffice it to say here that the court was wrongly .moved by the applicant by citing wrong and inapplicable rules in support of the application. In the case of CHAMA CHA WALIMU TANZANIA Vs. THE ATTORNEY GENERAL (Supra) the Court of Appeal of Tanzania referred what it had earlier stated in the case of CHINA HENAN 5 INTERNATIONAL CO-OPERATIN GROUP Vs. SALVAND K. A. RWEGASIRA, CIVIL APPLICATIN NO. 22 OF 2005 that: '~.. 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 veJY root of the matter. .. " As to what is the

consequence for committing the error the court stated that:- "That being the clear position of the law, the trial Judge ought to have struck out the application" It is clear to me from that finding of the Court that an application brought under a wrong and inapplicable rule in support of it deserves for an order striking it out. In that regard, this application is struck out for the court is not properly moved for citing wrong and inapplicable provisions of the law. Dated at Dar es Salaam this 9th of August, 2017. E.J~t:~a

JUDGE 9/8/2017 6