jamillah almansa vs the kigamboni municipal director the attorney general of the united republic of tanzania 2023 tzhclandd 16778 22 august 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO.482 OF 2023 JAMILLAH ALMANSA APPLICANT VERSUS THE KIGAMBONI MUCIPAL DIRECTOR RESPONDENT ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA 21^° RESPONDENT RULING 21-22 August, 2023 E.B. LUVANDA,J The Respondents above named raised a preliminary objection moving the Court to dismiss the Applicant's application on the ground that the application is bad in law and untenable for contravening section 14(1) of the Local Government Urban Authorities Act, Cap 288 R.E. 2002. Ms. Victoria Ally Lugendo learned State Attorney submitted that, the establishment of Urban Authorities as body corporate capable of suing and be sued are provided under section 14(1) of Cap 288 (supra). The learned State Attorney submitted that, Temeke Municipal Council is a legal entity which can sue and be sued on her name. She submitted that the Respondent (sic. Applicant) sued a wrong party, since the Director is just the representative of the Council, is just executing his duties on behalf of the Council. She submitted that it is the Council as the legal entity whom even the award will be executed against. She submitted that the Applicant has instituted a suit against the wrong party namely The Kigamboni Municipal Director. She cited the case of Temeke Municipal Director vs Nixon Njolla and Another, Revision No. 564/2019, G.Z. Mruke, J; Tabora municipal Council vs Philbert Rwegashora, Civil Appeal No. 14/2008, HC Tabora; Maulid Shaban vs Temeke Municipal Executive Director & Another, Misc. Land Application No. 1030/2017. She submitted that the application is bad in law and untenable for contravening the above provision. In response, Mr. Hassan Chande Hame learned Counsel for Applicant submitted that preliminary objections are discouraged under Article 107A(2)(b) and (e)of the Constitution of the United Republic of Tanzania 1977 as amended, also section 6 of the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2018 which added sections 3A(1) and (2) and 3B(l)(a)to(c)to the Civil Procedure Code, Cap 33 R.E. 2002. He submitted that preliminary objections are raised intending to make unnecessary delay. He argued the Court to consider the gravity of the application and damages which the Applicant will suffer in case this court will consider much technicalities instead of justice. He cited the case of Esther Joseph Ogutu vs Equity Bank & Another, Misc. Land Application No. 523/2021 HC Land Division; Tanzania Revenue Authority vs ARMZ, Civil Case No. 78/2018 (sic)(Mussa, JA, Mugasha, JA and Llla, 3A). By implication the learned Counsel for Applicant is on concession of the omission, but leaned to take refugee under oxygen principle or overriding objective, arguing this Court to administer real justice instead of entertaining the preliminary objections. Arguably, the above cited Article of the Constitution insist for the Court to focus on merit of a dispute instead of entertaining into technicalities. But the test is whether the omission is a mere technicality or Is something which goes to the root of the case or application for this matter, which if ignored will invariably render court orders inexecutable afterward. Herein, the Applicant is faulted for suing a wrong party, to wit The KigambonI Municiapl Director instead of suing the body corporate established by the law to wit The KigambonI Municipal Council. Now,assuming this Court overrule the objection, and warrant the application to be determined on merit with the eventuality of granting the relief sought, would the drawn order be executable, and will be directed or executed against who? Against non existing entity? It is unfortunately the learned 3 . Counsel for Applicant did not bother to respondent to these pertinent propositions, instead dwelled much insisting this Court to get rid of these technicality. By the way, there is no court which is interested with these so called technicalities, because it tend to cause muitiplicity of action and ultimately burden the Registry with piling up filing rate which in fact could be sorted out by a single application. Be as it may, to my respective view, the anomaly is beyond what the court can condone. There is a gain saying that rules of procedure are hand-maid of justice and not its mistress. In the persuasive case of Sambhaji & Ors vs Gangabai & Ors, Civil Appeal No. 6731 of 2008, Civil Appellate Jurisdiction, Supreme Court of India, held, I quote, 'Processual law is not to be a tyrant but a servant, not obstruction but an aid to justice. A Procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration ofJustice' In the above quotation, nowhere it is said that rules of procedure are irrelevant or should be disregarded in total. No does it say that even in serious omissions which are fatal, the Court should pay a blind eye. As said above, the test in all case is whether the omission is fatal or a minor defect which can be ignored. Sueing a wrong party by any means is not a minor defect for it to condone. In Nixon Njolla (supra), this Court ruled at page 6,1 quote, Trom thatprovision ItIs dear that Temeke Munldpal Coundl Is a legal entity which can sue and be sued on her own name. That being the case,Ifind that the Respondentssued a wrong party since the director IsJust the representative of the Council. The director Is Just executing his dudes on behalf of the Council. It Is the Council as the legal entity whom even the award will be executed' Therefore, the Applicant sued a wrong a party. The preliminary objection is sustained The application is struck out. Considering a fact that the Applicant is a widow fighting fc:^^Wter,~is«#it)ot make an order for costs. o ■f. 5: 5* .B/LUVANDA \\v- ★ /JUDGE o 22/08/2023 Ruling delivered in the pres^ce of Mr. Hassan Chande iearned Advocate for the Applicant and Ms. Victoria Lugendo learned State Attorney for First and Second Respondent.^ c ?! E.g. LUVAffgA'^ DGE ★ 2/08/2023