JOMO KENYATTA TRADERS LTD VS NBC MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 195 OF 2015 (Original Commercial Case No. 64 of 2015) JOMO KENYATTA TRADERS LIMITED MOI KASHIGO KIVARIA MICHAEL KIMWAGA WILLIAM GEOFLREY KIMWAGA APPLICANTS MONICA KIMWAGA MWANAIDI SALUM BUSHIR VERSUS NATIONALA BANK OF COMMERCE LIMITED RESPONDENT 28th September & 28th October, 2015 RULING MWAMBEGELE, J.: This is a ruling in respect of a preliminary objection raised by Mr. Nyika, learned counsel for the respondent to the effect that the application is incompetent for failure to cite the relevant and correct provision of the law moving the court to grant the orders sought. The preliminary objection (henceforth "the PO") was filed on 01.09.2015. As the practice founded upon prudence dictates, the PO had to be argued first. Thus the PO was argued on 1 28.09.2015 during which Mr. Jerome Msemwa and Mr. Gasper Nyika, learned counsel, represented the applicants and respondent respectively. Mr. Nyika, learned counsel for the respondent had earlier filed his skeleton written arguments in support of the PO in terms of rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (henceforth "the Rules"). Mr. Msemwa, learned counsel for the applicant did not file any skeleton written argument in objection to the PO. However, in terms of the very rule 64 of the Rules, hearing of the PO proceeded notwithstanding the failure by Mr. Msemwa, learned counsel for the applicant, to file the skeleton written submissions. Having adopted the skeleton written arguments earlier filed, Mr. Nyika, learned counsel for the respondent amplified that Order XXXV of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (henceforth "the CPC") was amended by the Mortgage Financing (Special Provisions) Act, 2008 by adding paragraph (c) (i) (ii) to rule 3. This added provision, he submitted, deals with the court's jurisdiction to grant leave to defend in cases involving mortgages. The applicant, in this application for leave to defend the summary suit, has cited XXXV rule 3 (1) (a) & (b), rule 3 (2) and Order XLIII which do not deal with applications for leave to defend a summary suit relating to mortgages. The proper provisions are Order XXXV rule 3 ( 1 ) (c) either (i) or (ii) or both and (3) of the CPC, he submitted. He thus stated that the applicant has failed to state a specific sub-rule to cater for this application, thus, for the non-citation of the correct sub-rule, the application is incompetent as was the case in Citibank Tanzania Ltd. Vs Tanzania Telecommunications Co. Ltd. & 4 Others, Civil Application No. 64 of 2003 2 (unreported), Almas iddie Mwinyi Vs National Bank of Commerce & Another [2001] TLR 83 and Mbeya-Rukwa Autoparts and Transport Ltd Vs Jestina George Mwakyoma, Civil Appeal No. 45 of 2008 (unreported). He thus prayed to have the application struck out on grounds of incompetence. Responding, Mr. Msemwa, learned counsel for the applicant, conceded that it was not proper to cite order XXLII of the CPC. He submitted that the non­ citation of a proper provision is not fatal; it is a curable defect as long as a correct Order has been cited. He bolstered this position by citing Gundelinda Wendeline Vs National Insurance Corporation of Tanzania Ltd. & Anor Miscellaneous Civil Application No. 78 of 2009 (unreported); the decision of this court (Dr. Twaib, J.) in which it was stated at p. 3 that: "... mere omission to cite the subsection that vests the Court with jurisdiction to entertain an application does not render the application incompetent: see Nicholas Hamisi & 1013 Vs Tanzania Shoe Co. & 2 Ors, Civil Application No. 54 of 2009 (CAT, DSM, unreported), and Farid Ahmed v Scania (T) Ltd. (CAT, DSM, unreported). This change of stance by their lordships and ladyships in the Court of Appeal is a welcome development. It ensures that so far as possible, disputes that are brought to court are decided on merit rather than on mere technicalities, and that 3 courts would endeavour to achieve substantive justice, as required by article 107A of the Constitution of the United Republic." Mr. Msemwa, learned counsel for the applicants also cited the National Housing Corporation Vs Etienes Hotd, Civil Application No. 10 of 2005 (unreported) to buttress the point that courts should bear in mind that justice should be done rather than impeding it by mere technicalities. Mr. Msemwa, learned counsel for the applicant, insisted that the cases cited by the learned counsel for the respondents are very old and depict an old position which has since been changed: the current position, he submitted, is that failure to cite a sub-section or sub-rule or sub-regulation is a curable ailment. He thus pleaded with the court not to strike out the application but to allow an amendment as was the case in Farid Ahmed (supra). As to the position that failure to cite a proper sub-section in the Chamber Summons is not a fatal irregularity, the learned counsel cited Abubakar Mohamed Mienda Vs Juma Mfaume [1989] TLR 145, the decision of this court which was cited in with approval in Mr. Liston Uisso Vs Mr. Jasson Kessi, Civil Revision No. 33 of 2000 (unreported); also the decision of this court [Luanda, J. (as he then was) - now Justice of Appeal]. The learned counsel landed by praying that he be allowed to rectify the anomaly in the application by adding the sub-rules complained of, the course of action followed in Farid Ahmed (supra). 4 In a short rejoinder, Mr. Nyika, learned counsel for the respondent, submitted that I should not be bound by the Wendeline case as my fellow judge of this court misapplied the Court of Appeal decisions cited; that is, the Nicholas Hamisi and Farid Ahmed cases. He, however, admitted that he had not read the Nicholas Hamisi and Farid Ahmed cases; the decisions of the Court of Appeal, and expressed his happiness if non-citation of a sub-section to move the court is no longer a fatal irregularity. Be that as it may, the learned counsel prayed for the striking out the application on the ground of incompetence. Having heard the two trained minds in their rival submissions, the pertinent issue for discussion in the present matter is whether the Court of Appeal has departed from the "old" position that holds that non-citation of a sub-section to move the court is a fatal ailment. Non-citation of a proper sub-section to move the court has all along been held to be a fatal ailment - see: National Bank of Commerce Vs Sadrudin Meghji [1998] TLR 503, Citibank Tanzania Ltd. Vs Tanzania Telecommunications Co. Ltd. & 4 Others, Civil Application No. 64 of 2003 (unreported), Aimas iddie Mwinyi Vs National Bank of Commerce & Another [2001] TLR 83 and Mbeya-Rukwa Autoparts and Transport Ltd Vs Jestina George Mwakyoma, Civil Appeal No. 45 of 2008 (unreported) to mention but a few. In Mr. Msemwa's view, there is a paradigm shift from this position. I have serious doubts. I have read the Nicholas Hamisi and Farid Ahmed cases referred to by Mr. Msemwa, learned counsel for the applicant and relied on by my brother at the 5 Bench Dr. Twaib, J. in Gundeiinda Wendeline. With great respect to Mr. Msemwa, learned counsel for the applicant, it does not seem to me that the Nicholas Hamisi and Farid Ahmed cases changed the position of the Court of Appeal as regards non-citation of a proper sub-section to move the court being a fatal irregulairty. I shall demonstrate. In Nicholas Hamisi, a single Justice of the Court of Appeal was grappling with the issue of whether or not omission to state the grounds for the application in the Notice of Motion was fatal. Nicholas Hamisi did not deal with wrong or non-citation of the provisions of the law to move the court. Likewise, Farid Ahmed the same court was dealing with a situation where the respondent filed a preliminary objection under rule 100 of the Court of Appeal Rules, 1979 which had been revoked by the Court of Appeal Rules, 2009. At the time the respondent filed the Notice of Preliminary Objection, the new Rules had not come into force yet. On this premise, the Court of Appeal invoked rule 2 of the new Rules and allowed the respondent to rectify the error so that the preliminary objection could be heard and determined on merits. These two cases did not change the position of the law in this jurisdiction on wrong or non-citation of a section or sub-section to move the court to be a fatal ailment. Respectfully, in the light of the foregoing, I am not prepared to buy Mr. Msemwa's argument to the effect that the position that non-citation of a sub­ section or sub-rule to move the court is a fatal irregularity is an old position of the law. To the best of my knowledge, the position of the law on this point has not changed. Mr. Msemwa, learned counsel, does not seem to be aware of the cases decided His Lordship Dr Twaib, J. after Gundelinda 6 Wendeline. One such case is Sanyou Service Station Ltd Vs Bank o f Baroda, Miscellaneous Land Application No. 45 of 2013 (unreported). In Sanyou, Dr. Twaib, J. conceded that the law has not changed. His Lordship stated: "... in Gundelinda Wendeline v NIC & Anor, Misc. Civil Application No. 78 of 2009, I took the position that wrong citation of enabling provisions should not be fatal to an application, so long as an enabling provision exists that can properly move the Court. Such a defect was, in my view at the time, curable by amendment or otherwise in order to ensure that substantive justice is done. I was under the mistaken belief that the legal position had changed with the decisions of the Court of Appeal in Nicholas Hamisi & 1013 Others v Tanzania Shoe Co. Ltd. & 2 Ors Civil Application No. 54 of 2009 (CAT, DSM, unreported) and Farid Ahmed v Scania (T) Ltd. (CAT, DSM, unreported). However, that error of law on my part was corrected by the Court of Appeal in Republic v Elizabeth Michael alias Lulu. The Court of Appeal re-affirmed the earlier position of the law to the effect that improper citation of enabling provisions was fatal to an application. I am thus 7 bound by that decision, which means that the present application suffers the same fate." [Emphasis supplied]. Unfortunately, Mr. Msemwa, learned counsel for the applicant, to borrow Dr. Twaib, J.'s words, is still under mistaken belief that the position of the law on this point had changed. It is apparent therefore that the argument by Mr. Msemwa, learned counsel for the applicant, is without substance and must be rejected. The prayer by Mr. Msemwa, learned counsel for the applicant, to the effect that he should be allowed to add the sub-rules (which are the gist of the PO) as was the case in Farid Ahmed (supra) does not find purchase with me either. This is so because, as already alluded to above, in Farid Ahmed (supra) the subject was that the Notice of Preliminary objection was filed on 10.03.2010 before the New Court of Appeal Rules, 2009 came into force. In its wisdom, the Court of Appeal felt that it should allow the applicant to file the Notice under the new Rules. The facts in Farid Ahmed and the ones in the present case are substantially different. But more importantly, the foregoing notwithstanding, allowing the applicant to rectify the anomaly after the PO has been raised will be tantamount to preempting the PO which course is illegal. That this is the law has been said more often than not in a string of cases in this jurisdiction. One such case is Mary John Mitchell Vs Sylvester Magembe Cheyo & ors, Civil Application No. 161 of 2008 (unreported) in which the Court of Appeal reiterated its earlier position it stated in Method Kimomogoro Vs Board of 8 Trustees of TANAPA, Civil Application No. 1 of 2005 (unreported) in which it stated: "This court has said in a number of times that it will not tolerate the practice of an advocate trying to preempt a preliminary objection either by raising another preliminary objection or trying to rectify the error complained of." There is a line of cases by the Court of Appeal holding this position; that a preliminary objection should not be preempted. Such cases include Shahida Abdul Hassanali Kassam Vs Mahedi Mohamed Gulamali Kanji Application No. 42 of 1999 (Unreported), Almas Iddie Mwinyi Vs National Bank of Commerce & Another [2001] TLR 83, Alhaji Abdallah Talib Vs Eshakwe Ndoto Kiweni Mushi [1990] TLR 108, The Minister for Labour and Youth Development and Shirika la Usafiri DSM Vs Gaspa Swai & 67 Others Civil Appeal No. 101 of 1998 (unreported) and Frank Kibanga Vs ACCU Ltd, Civil Appeal No. 24 of 2003 (unreported), to mention but a few. In all these authorities, the court did not mince words - it was of firm view that a preliminary objection should not be preempted. This being the case, I respectfully decline the invitation by Mr. Msemwa, learned counsel for the applicant, to allow the applicant amend the application after the PO raised by the respondent. 9 To recap, I may state as follows: that failure to cite a proper section or sub­ section or sub-rule to move the court is a fatal ailment and makes an application incompetent is still part of our law. An applicant cannot be allowed to amend the application after a preliminary objection has been raised against that application. Such application will be struck out on ground of incompetence. In the end of it all, I sustain the preliminary objection raised by Mr. Nyika, learned counsel for the respondent and, with costs, proceed to strike out the application for leave to defend the summary suit. Order accordingly. DATED at DAR ES SALAAM this 28th day of October, 2015 a 7B L J. C. M. MWAMBEGELE ’ X. ■? A • £ JUDGE I ' 10