20160621 tzhc arusha

I

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY

AT ARUSHA :, . y ,;., CIVIL REVIEW NO. Ql OF 2015 (C/F Misc. Civil Application No. 2014 from Civil Appeal No,. 58 of 2006, Original Application No. 23 of 2006, District Land Tribunal of Mbulu No. 19 ' I of 1998) EDWARD SINNO ...................................................... APPLICANT

VERSUS ' I I MARIMO LULU .................................•................... RESPONDENT ; RULING , 21/06/2016&19/08/2016 MWAIMU, J. ' The applicant Edward Sinno is seeking for a review I of the Court's . ' order dated 05th day of January, 2015 urging that it was ba$ed on an error· . I in law. The respondent raised two points of law against the application that I i). The application for review is bad in law and ndt maintainable for having been brought under ~rong provisions Iof law; ii). That the application for review is bad in law for not containing 1 the name of the drawer. i 1 I I ' . i' I I Mr. Siay who appeared for the ref pondent contetded that the application has been brought under sectionl:78 (1) (a) and Order XLII rule 1 of the Civil Procedure Code Cap. 33 R~ 2002. Accordilg to him the t applicant has not been specific in citing the law as Order LII rule 1 has two sub rules, that is (a) and (b) which each' covers a different scenario. Mr. Lundu who represented the applic.lnt conceded to re objection. Section 78 cited by the learned counsel stat~s: 1 I '78. Subject to any conditions andI limitations pjscribed under section 77, any person considering hi4se/f aggrieved- I L (a) by decree or order f~om which an appeal is allowed by this Code but from : which no apla, has been preferred; or (b) by a decree or orqer from which no appeal is allowed by this Code, , I may

apply for a review of judgment to the court which passed " ! I . the decree or made the order, (/lnd the court may make such t. order thereon as it thinks fit. " 2 It is quite clear that this provision has 60 sub sections m numerical numbers .. The sub sections are in alphabetida1 sequence anl section 78 therefore has sub section (a) and (b). By thJ applicant's citin~ section 78 (1), he has cited a wrong provision. That is not the only flaw in the provisions cited by the applicant. In I i the chamber summons the applicant cited Order XLII Rule 1 as the i I I enabling provision for the application. Loo~ing at Order X II rule 1 it contains two sub rules, that is, (a) and (b). T~e . I order reads asl follows: I I (1) Any person considering himself aggrieved- / (a) by a decree or order from ~hich an appeal is allowed, but I from which no appeal has been pqeferred,· or (b) by a decree or order from Jhich no appeal i · allowed, i and who, from the discovery of nefw and important matter or evidence which, after the exercise of ~ue diligence, w.ls not within I 1 his knowledge or could not be produced by him at the time when the .: I decree was passed or order made, or qn account of some mistake or r: I, error apparent on the face of the recrd, or for any drer sufficient reason, desires to obtain a review of the decree passed or order 3 made against him, may apply for a reView ofJudgmeJ

to the court i which passed the decree or made the order. The applicant could not indicate whic~ sub rule of rue 1 of Order : I XLII was applicable to move the Court. The! rule on failure to cite proper I provision, none citation of a provision or a sibsection or sub rule has been I settled by our courts. Failure to specify a prtvislon renders tre application incompetent. This was the position stated in [the case of Hu$sein Mgonja i I • I' v The Trustees of the Tanzania Epishopal Conferehce, AR Civil I I Revision No. 2 of 2002 (unreported) (CAT) the Court had this to say on the I competence of an application citing a wrong provision: I i I ''If a party cites the wrong provision of the law the l I matter becomes incompetent as jthe Court will mot have been properly moved'~ ·: I Also in Antony Tesha v Anita Tesha, CiJil Appeal No. J of 2003 the Court of Appeal held that the mere citation of a section wittjout indicating the sub-section and the paragraph is tantamount to no -citation and I ! renders the application incompetent. I In the circumstances without further actlo and as conceded by counsel I for the applicant, the application is rendered incompetent and is hereby ' ! 4 1' struck out with costs. The decision on tthe first preliminary objection suffices to resolve the application therefor I ~ill not stretch ~Y hand on the ! second point of law. It is ordered accordingly. I I M.P.M. Mwaimu .I ! I

JUDGE I 21/06/2016 II Ruling delivered on this 21 st day of August, do16 in presence of the parties.

I I I (SGD) I I ' M.P.M. Mwaimu 'I : JUDGE : I 'I '' i ! I hereby certify this to be a true copy of the original. \

DEPUTY REGISTRAR !

ARUSHA 5