JV TANGERM CONSTRUCTION CO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 127 OF 2018 (Arising from Commercial Case No. 117 of 2015) JV TANGERM CONSTRUCTION CO. LIMITED & TECHNOCOMBINE CONSTRUCTION LIMITED (A JOINT VENTURE)....... .......................................................... APPLICANT Versus TANZANIA PORTS AUTHOURITY.......................................... 1st RESPONDENT THE HON. ATTORNEY GENERAL............................. 2nd RESPONDENT RULING This is a ruling on the preliminary objection raised by the Attorney General against the Applicant's application for extension of the life span of the suit. The objection raised is to the effect that the application is bad in law for being brought under the wrong citation of the law... k i At the hearing of the preliminary objection, learned State Attorney Naisha Shao appeared to argue the objection while learned advocate Bethwell appeared to defend the objection. The learned State Attorney was brief on her submission that the applicant has cited Rule 32 of the High Court (Commercial Division) Procedure Rules GN. 250 of 250 (hereinafter referred to as “the Rules”) without specifying the relevant sub-section that gives the court power to grant the prayer for extension of the lifespan. She contended that the relevant provision is Rule 32(3) of the Rules. In support of her submission she cited the case of Edward Bachwa and 3 others Versus Attorney General and Another, Civil Application No. 128 of 2016 where it was held that wrong citation of the law, section, sub-section and or paragraph or non-citation of the law will not move the court to do what it was asked and held the application as incompetent. It was replied by counsel Bethwell that it is true that enlargement of the life span is made under Rule 32 of the Rules and the fact that the sub-section (3) was not cited, does not make the application incompetent. He argued citing Rule 32 as a whole means that sub-section (3) is also inclusive. He said rules of procedures are meant to be followed but the aim is not to prevent the ends of justice from being met. He acknowledged the holding in the case of Bachwa but argued that the present application cannot be faulted by mere non-citation of sub-rule (3) of Rule 32.aiu In the alternative, he prayed to be allowed to re-file a proper application. In rejoinder it was insisted that the application is incompetent as such the court cannot act on an incompetent application. From the counsels submissions it is not disputed that the applicant cited Rule 32 of the Rules and failed to cite the relevant sub-rule (3) that bestows this court with powers to extend the lifespan of the suit. Learned Stated Attorney contended that the failure in fatal and renders the application incompetent while counsel for the applicant argued that the non-compliance is not fatal because it is just a rule of procedure which though need to be complied but should not be used to prevent the ends of justice to be met. It is therefore for this court to determine as to whether the non- compliance is fatal or not? As succinctly submitted by the learned State Attorney there are chain of authorities by the Court of Appeal of Tanzania, that non­ citation or wrong citation of the Section or sub-section of the law makes an application incompetent and it should be struck out (see the cases of Edward Bachwa (Supra); Almas Iddie Mwinyi Versus National Bank of Commerce and Another (2001) TLR 83 and Macky Mhango (on behalf of 684 Others) Versus Tanzania Shoe Company Limited and Another, Civil Application No. 37 of 2003 (unreported). I understand the counsel for the Applicant is asking this court to refrain from giving technicalities due consideration where there is failure to . the compliance with the procedural rules. With due respect to the counsel's view, the present issue is not about procedural technicality it goes to the root of the jurisdiction of the court. It is the law that clothes the court with the jurisdiction. Consequently, I find merit to the objection that the application is bad in law for being brought under wrong provision of the law thus incompetent and I proceed to strike it out with costs. It is so ordered. DATED at Dar es Salaam this 3rd day of October, 2018. 4