ISSA NDUMA RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. LAND APPLICATION NO. 8916 OF 2024 (Originating from Land Case No. 23 of 2015, arising from Land Case No. 25 of 2023 and Misc Application No.6757 of 2024) ISSA NDUMA AND 449 OTHERS…………………………………………. APPLICANTS VERSUS THE REGISTERED TRUSTEES OF THAQIB ISLAMIC CENTRE ………………..…………….………….. 1ST RESPONDENT ROCK CITY TAKERS …………………..…………….……………….. 2ND RESPONDENT REGISTERED TRUSTEES OF ISLAMIC PROPAGATION CENTRE (IPC) ………………….……………….… 3RD RESPONDENT RULING 24th October & 15th November, 2024 CHUMA, J. By this application, the court is being moved to order restoration of the school management and staff of Nyasaka Islamic Secondary School following eviction by the respondents pending determination of Misc. Application No. 6757 of 2024. The court is also invited to maintain the status quo pending the determination of Land Case No. 25 of 2023. Guided by available records, I will narrate albeit briefly the historical background of this matter. Vide Land Case No. 23 of 2015, the 1st respondent herein sued the 3rd respondent for surrendering management of Nyasaka Islamic Secondary School and Thaagib Islamic Primary School to the 1st respondent, as well as transfer of ownership of Plot No. 502 Block ‘A’ Nyasaka Mwanza City; Plot No. 569 Block 1 LL Kiloleli Mwanza City; and farm No. 1 Bock ‘LL’ Kiloleli Mwanza (the suit properties) from the 1st respondent to 3rd respondent. This court on 28.8.2018 decided in favor of the 1st respondent herein, the 3rd respondent was ordered to cease managing the two schools, and the Certificates of Occupancy on the suit properties were ordered to be transferred to the 1st respondent. Through execution No. 25 of 2018, which was not objected to by the 3rd respondent, this court executed the decree the 2nd respondent was appointed to evict the 3rd respondent from the suit properties, and the certificates of occupancy were ordered to be transferred to the 1st respondent. The applicants who are claiming ownership over the suit properties have now filed Land Case No. 25 of 2023 which is pending before this court and Misc. Application No. 6757 of 2024 which objects to execution proceedings. According to the affidavit, on 4.4.2024, the teachers and non- teaching staff were forcefully evicted from the premises of Nyasaka Islamic Secondary School. Hence this application. The application was strongly objected to by five points of preliminary objections from the 1st respondent as here under; 2 1. The prayers in the chamber application are unmaintainable for the same ought to have been brought under objection proceedings or investigation of the claim as per Order XXI, Rule 57 (1) of the Civil Procedure Code, Cap 33, R.E. 2019. 2. An order for maintenance of the status quo cannot be sought in a separate application emanating from execution proceedings but in the pending main suit. 3. Since there is no pending execution before this court, the proper avenue by the Applicants was to apply for revision to the higher Court. 4. An affidavit accompanying this application is incurably defective for having been affirmed after the application was filed in Court. 5. This Court lacks jurisdiction to entertain the instant application as the proceedings subject to determination by this Court are substantially the same proceedings pending before the Court of Appeal. The objection was disposed of by way of written submissions. According to the schedule, the submission in chief was ordered to be filed on 8.10.2024, the reply submission on 15.10.2024; the rejoinder (if any) on 19.10.2024 and the Ruling was fixed on 29.10.2024. The counsel for the 1st respondent complied with the order of this court by filling submission online on 8.10.2024. The submissions for the applicants were not filed. In the cause of composing this ruling, I happened to see a letter dated 31.10.2024 to the 3 effect that the applicants intend to make an application for an extension of time to file their submissions out of time on the date fixed for mention for the reason that, they filed their Written Submission timely in the system but they failed to secure control number timely. I ignored the said letter and I have reasons; one, there is no date on which this matter was set for a mention, the next session was for ruling on 29.10.2024; two, it is unjustifiable for the applicant’s counsel who alleges to have filed his submissions timely on 15.10.2024 to relax until on 31.10.2024 without moving the court to extend time bearing in mind that the matter was fixed for Ruling on 29.10.2024; three, it is illogical for the counsel of the applicants to apply for an extension of time to file submissions which were already submitted on time, what he ought to do was to make a follow-up to be availed with a control number for payment and at least to explain reasons for delaying payment. I will therefore determine the points of preliminary objection based solely on submissions for the 1st respondent which was filed by Mr. Twaha Taslima and Mr. Godfrey M.M. Basasingohe. The 1st respondent’s counsels in their submissions abandoned the 2nd, 3rd, and 5th points of preliminary objections. They maintained the 1st, 4th and added one point that; 4 1. The person who affirmed an affidavit in support of the application is not among the applicants and wasn’t authorized to affirm the said affidavit on behalf of 500 people as required by law. Submitting on the 1st ground of preliminary objection they argued that, the cited provisions in this application do not confer jurisdiction to this court because, firstly, section 68 (e) of the Civil Procedure Code can only be invoked and be useful when there is a pending suit. Secondly, the provision of section 95 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) is applicable where there is no provision governing the subject matter as it was held in the famous case of Aero Helicopter (T) Ltd Vs. F.N. Jansen [1990] TLR 142, at Page 145. They submitted further that, section 38 (1) of the CPC cannot be at the applicant’s rescue because they were not parties to the execution proceedings, the only available remedies were to file objection proceedings which they rightly did by filing Misc. Application No. 6767 of 2024 or to apply for revision before the Court of Appeal. Reference was made to the case of Ahmed Sadalla Juma Vs. Kaisi Hamisi & 2 Others, Misc. Land Application No. 653 of 2021 (unreported). 5 Regarding the 4th ground of preliminary objection, they submitted that, according to Order XLIII, Rule 2 of the CPC an application is made by chamber summons and supported by an affidavit. This application was presented for filing on 27th March, 2024 as indicated in the court stamp but the affidavit accompanying the application was verified and affirmed on 18th April, 2024. That, paragraph 4 of the affidavit speaks of occurrences of events on the date after when the application was filed in court. That, it might have been a clerical or typographical error on the part of the registry officer but if that is the case, the Applicants ought to have sought for leave of refiling a fresh application. Regarding the added point of preliminary objection, it was submitted that the deponent Ali Butono has stated to be the Head Master of Nyasaka Islamic Secondary School which is managed by the 3rd Respondent, and no facts establishing his involvement in this application were stated contrary to order XLIII, Rule 2 and O. XIX, Rule 3 (1) of the CPC. That, the deponent is not among the Applicants nor a Principal Officer of one of the Applicants. That, the names of the 449 Applicants were undisclosed and no facts were led to establish whether there is a pending representative suit. The deponent did not state if he was authorized by Issa Nduma and 449 Applicants to 6 affirm an affidavit on their behalf. Reference was made to the case of Mohemed Abdiallah Nur & Others Vs. Hamad Masauni & Others, Civil Application No. 436 of 2022 (unreported) where it was held inter alia that, a person purporting to swear an affidavit in support of an application must have authority from a party to the proceeding and such authorization need be expressly reflected from the respective affidavit. He accordingly prayed for the application to be struck out with costs. Having considered the submission for the 1st respondent, I will now determine whether the points of preliminary objections have merit. I will start with the 4th and added ground of appeal as they both touch competency of this application for want of proper affidavit. The 1st respondent’s counsels are correct that, the affidavit supporting the affidavit was affirmed before the commissioner for oath on 18.4.2024 while the court’s stamps show the application to have been filed on 27.3.2024. However, I have also noted that the Chamber summons was signed by the Deputy Registrar and sealed by the court’s seal on 7.5.2024. To resolve this discrepancy, I visited the court's Online filing system. According to CM's filling System, the application was submitted online on 18.4.2024, it was admitted on 23.4.2024 and payment was effected on 7 22.4.2024 by receipt No. EC102143103725IP. One question remains unsolved on how requisite fees were paid before admission. Nevertheless; The law is now settled that, the official record of the court shall be the electronic case file. Rule 8 of Judicature and Application of Laws (Electronic Filling) Rules G.N 148 of 2018 (the Rules) provides that; “All pleadings, petitions, applications, appeals, and such other documents shall be filed electronically in accordance with these Rules.” That means an application duly filed is presented in the court electronically. Further Rule 9 of the Rules states that; “The official record of the court shall be the electronic case file (ECF), proceedings pertaining to that case, together with any documents and exhibits filed under the conventional method. “ Rule 21(1) of the Rules also stipulates that; “A document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted unless a specific time is set by the court or it is rejected” Having considered these mandatory provisions of law, I am of the settled mind that, the affidavit was not affirmed before filing. Perhaps, the court stamp indicating 27.3.2024 as the date of filing may be a clerical error 8 committed by the Registry Officer. I do not agree with the argument of the 1st respondent that, the applicants were supposed to pray to refile a fresh application because the physical file is not an official file of the court. Further, in the case of Mount Meru Flowers Tanzania Limited Vs. Box Board Tanzania Limited, Civil Appeal No. 260 of 2018 (unreported) the Court of Appeal said inter alia that; “…We think the principle that parties should not be punished for errors committed by the court is sound in the circumstances of this case. See the case of The Attorney General v. Ahmad R. Yakuti and 2 Others, Civil Appeal No. 49 of 2004 (unreported).” Likewise, in this matter, the applicants cannot be punished for mistakes committed by the Registry Officer. The 4th point of preliminary objection is devoid of merit rendering its dismissal. On the additional point of preliminary objection, the counsels for 1 st respondent are of the view that the applicant Alli Butono is not among the applicants and had no authority to swear an affidavit. It is undisputed that in Land Case No. 23 of 2015, the applicants are suing on representative capacity having obtained leave before Morris J. in Misc. Application No. 85 of 2022. It was unfortunately, I did not see the list of 9 all 500 applicants to see whether Alli Butono is one of the applicants. However, the 1st respondent’s counsels are correct that, the affidavit does not tell if the applicant is one of the applicants. He merely stated to be the Head Master of Nyasaka Islamic Secondary School and that, in the said capacity he is conversant with the facts deponed. It is also correct that even assuming that the said applicant is among the applicants, the affidavit does not tell if he has the authority to swear on behalf of other applicants. As correctly submitted, a formal application is made by chamber summons and supported by the affidavit(s) as required by order XLIII Rule 2 of the CPC. In this matter, there was no supporting affidavit covering all applicants. In the case of The Registered Trustees of St. Anita's Greenland Schools (T) and 6 Others Vs. Azania Bank Limited, Civil Application No. 168/16 of 2020 (unreported) the Court of Appeal said on page 9 that, “Going by the cited authorities, failure by the applicants to file affidavit or affidavits to cover all of them is fatal to the application”. When the court of appeal was invited to invoke an overriding objective to cure the defect, it made the following observation on page 10; 10 “We are in all fours with the learned counsel for the respondent that, the overriding objective principle cannot be applied blindly in disregard of the mandatory rules of procedure.” Being guided by this authority, this application is incompetent for want of a proper affidavit covering all applicants. For that reason, the additional point of preliminary objection suffices to dispose of this application. I have no justification to determine the 1st point of preliminary objection. I therefore proceed to struck out the application for being incompetent. The applicants are ordered to pay the costs of this application. It is so ordered. The right of appeal is fully explained to the parties. DATED at MWANZA this 15th day of November, 2024. W. M. CHUMA JUDGE 11 Ruling delivered in court before Mr. Peter Ndege advocate holding brief of advocate Kyobya for the applicants, Mr. Kitale advocate holding brief of Mr. Godfrey advocate for first respondent and in absence of the rest of the respondents this 15th day of November, 2024. W.M. CHUMA JUDGE 12