20061212 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORUM: LUBUVA, J.A., KAJI, J.A. AND KIMARO,J.A.) · CIVIL REFERENCE NO.10 OF 2005 In The Matter of an -Intended Appeal Between JOSEPH NTONGWISANGU AND ANOTHER •.•••.•...•. APPLICANT AND THE PRINCIPAL SECRETARY MINISRTY OF FINANCE AND AN0THER •••.......••..•••••••••••.••.• RESP0NDENT (REFERENCE from the ruling of a Single Judge of the Court of Appeal Of Tanzania at Dar Es Salaam) (Munuo, J.A.} Dated 24th June, 2005 In Civil Application No. 109 of 2002 RULING OF THE COURT 29 Nov. & 12 Dec. 2006 KIMARO, J.A. This reference arises from a ruling of a single Judge of this th Court (Munuo, J.A.), dated 24 June, 2005. By that ruling the single Judge dismissed an application by the applicant for amendment of 1 the Memorandum of Appeal in Civil Appeal No.97 of 2001 pending in this Court. Dissatisfied by the decision of the single Judge, the applicant filed this reference seeking a reversal of the decision of the single Judge. A brief background to this reference is that the application before the single Judge for the amendment of the Memorandum of Appeal in Civil Appeal No. 97 of 2001 was filed under Rules 45 and 47 of the Court Rules without mentioning the specific sub rules under which the Court was being moved. The omission to cite the specific sub rule, the single Judge found, made the application incompetent. Instead of striking out the application, the Judge dismissed it, the main reason being that the application was heard on merit and found lacking in merit. It was the finding of the single Judge that the proposed amendment was substantially the same as the one already filed in Court, only that the prayers were precise. Mr. Magesa, learned counsel who appeared for the applicant in this reference, and had also advocated for the applicant in the application before the single Judge faulted the Judge for dismissing the application. At first the learned counsel seemed to conceal the fact that he omitted citing the specific sub rules of Rules 45 and 47 of the Court Rules, and showed that the application was dismissed because he did not cite Rule 104 of the Rules. But upon being pressed by the Court to read closely the ruling of the single Judge, he conceded making the omission. However, he maintained that the 2 omission made the application incompetent and it should have been struck out rather than the single Judge going into the merit of the application and dismissing it. Mr. Magessa argued that this was the position taken by the Court in the case of Citibank Tanzania Ltd versus Tanzania Telecommunication Co. Ltd and 4 others Civil Application No. 64 of 2003 (Court of Appeal) ( Unreported ) which the single Judge relied upon in determining that the application was incompetent. He prayed that the reference be allowed. Ms Otaru, learned State Attorney, who represented the respondents, opposed the application. She submitted that the application was dismissed not only because the applicant failed to move the Court by citing precisely the relevant sub rules of Rules 45 and 47, but also because the proposed amendment was substantially the same as the Memorandum of appeal already filed. She submitted further that the applicant also failed to cite Rule 104 of the Court Rules which is relevant for amending the Memorandum of Appeal. The learned State Attorney argued that since the single Judge considered the merit of the application which she found lacking, the dismissal order was proper. She maintained that the same position was taken by the Court in Citibank (supra). She prayed that the reference be dismissed with costs. 3 Admittedly the issue involved in this application is a simple one. It is whether the single Judge was right in dismissing the application after finding that it was incompetent because of failure to cite the specific sub rules to move the Court. With respect, we need not take much time on this issue. The position has been clearly explained in numerous decisions of this Court that where an application is incompetent it ought to be struck out. The case of Citibank (supra) cited by the learned single Judge is one among others. It is therefore not true, as contended by the learned State Attorney, that in Citibank (supra) the application was dismissed. Some of the other cases where the same position was taken are National Bank of Commerce V Sadrudin Meghji Civil Application No.20 of 1997 (Unreported), Almas Iddie Mwinyi v National Bank of Commerce and Another Civil Application No. 88 of 1998 and Mbeya -Rukwa Autoparts & Another v Jestina George Mwakyoma Civil Appeal No. 45 of 2000 (Unreported). However, it is significant to observe the stage of the proceedings in which the issue of incompetence is resolved. Where . the issue is determined in a preliminary objection then the right course is to strike out the application. In a situation where the application proceeds to a hearing on merit and in such hearing the application is found to be not only incompetent but also lacking in merit, it must be dismissed. The· rationale is simple. The effect of striking out an application leaves room for filing the application again 4 even where it has no merit. Experience shows that civil litigations if not controlled by the Court, may unnecessarily take a very long period and deny a party in the litigation enjoyment of rights granted by the court. It is therefore crucial for the Court to direct the parties appropriately on the outcome of the application. In this application, as the learned State Attorney correctly submitted, the application was heard by the single Judge on merit. In the course of hearing, the single Judge not only found the application incompetent but was also lacking in merit. She observed that the requested amendment is substantially the same as what is already before this Court. In the case of Citibank Tanzania Limited v Tanzania Telecommunication Company Limited & Others Civil Application No. 112 of 2003 the Court was moved under Section 4(3) of the Appellate Jurisdiction Act, 1979 to call and revise the proceedings of the High Court. A preliminary objection on the competence of the proceedings was raised and sustained. The application was found to be incompetent. The application was dismissed because the applicant moved the Court by wrong proceedings. Instead of filing an appeal, a revision was filed. Apart from being incompetent the revision proceedings were not proper and that is why the Court dismissed them instead of striking them out. 5 In view of the fact that the application was heard and found not only incompetent, but also lacking in merit, there is nothing to fault the single Judge. In the circumstances, with respect to Mr. Magesa, we do not agree with him that the learned single Judge ought to strike out the application instead of dismissing it. In the event we find no merit in this reference. It is accordingly dismissed with costs. DATED at DAR ES SALAAM this 1th day of December 2006 D.Z. Lubuva JUSTICE OF APPEAL S. Kaji JUSTICE OF APPEAL N.P. Kimaro JUSTICE OF APPEAL 6