kassim ally chuma vs tanzania postal bank and others 2023 tzhc 18614 30 june 2023

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY)

AT MOROGORO MISC CIVIL APPLICATION NO. 50 OF 2022 (Arising from the Decision ofthe High Courtof Tanzania in Consolidated Appeai Has, 11/03of2021 delivered on 2&^ Day ofAugust, 2022, by Hon. Ngwembe,J., Originating from Civil Case No. 03of2020in the District CourtofKHombero,at Ifakara)

KASSIM ALLY CHUMA APPLICANT

VERSUS TANZANIA POSTAL BANK 1^ RESPONDENT

NUTMEG AUCTIONEER AND PROPERTY MANAGER CO. LTD 2"'^ RESPONDENT ALLY YAHAYA NGUZO 3""° RESPONDENT

PROPERTY INTERNATIONAL AUCTIONEER AND COURT BROKERS 4^" RESPONDENT

RULING 12"''&30«'June, 2023 M.J. CHABA^J. By way of chamber summons made under Rule 45 (a) of the Tanzania Court of Appeal (Amendment Rules) Rules, GN. No. 344 of 2019, the applicant lodged the Instant application seeking leave to appeal to the Court of Appeal of Tanzania intending to challenge the decision of this Court in Civil Appeal No.11/03 of 2021, which was delivered on 26^^ August, 2022 by my brethren Page 1 of9 I Hon. Ngwembe J. The application is supported by the affidavit deponed by Kassim Ally Chuma, the applicant herein. According to the applicant's affidavit in support of the application, on 26^^ August, 2022, this court allowed the appeal against the appellant herein and ordered that, the attachment and sale of his mortgaged property was legal and hence the Court cannot with interfere it. Dissatisfied with the judgment of this Court, the applicant intends to appeal to the Court of Appeal of Tanzania on the following grounds stated in paragraphs 4 -10 of his Affidavit: i. That, the High Court of Tanzania failed to properly re-analyse, and re- evaluate the evidence tendered before the trial Court, ii. That, the High Court has failed to realize legal challenges on the public auction done by the 3'^ respondent with pure element of collusion, iii. That, the judgment of the High Court resulted from misinterpretation of the evidence of the trial Court and failure to

re-evaluate the said evidence, iv. That, the High Court being the first appellate Court ignored the evidence of the applicant and delivered its judgment basing upon the re-analysis of the evidence of the respondents, V. That, the consolidated appeal was wrongly heard contrary to the law without firstly disposing the notice of preliminary objection first, vl. That, the consolidated appeal was badly handled contrary to the law. Page 2 of 9 vii. That, the decision of the High Court of Tanzania was founded upon mis-conception on the claim of the applicant herein before the District Court of Kilombero. When the application was called on for hearing on 4^^ May, 2023, the applicant and the 3'^'^ respondent appeared in persons, and unrepresented, whilst the respondent was represented by Cilvia Mtawa, its principal officer. On the other hand, the 4^^ respondent who filed her joint counter affidavits and written submissions with the 3^^ respondent didn't enter appearance; similarly, to the 2"^ respondent she neither entered appearance nor filed the counter affidavit as well as reply to the written submission in chief filed by the appellant. Therefore, the application proceeded exparte against the 2"^ and the 4^^ respondents. With the parties' consensus, this application was argued and disposed of by way of written submissions. At this juncture, I thank both parties for complying with

Court's scheduled orders by filing their respective written submissions on time. Arguing in support of the application, the applicant being a lay person restated what he listed in his affidavit as grounds of the intended appeal to the Court of Appeal of Tanzania which I find no reason to reproduce, and prayed the application be allowed with costs. Page 3 of9 On the other hand, the application was vehemently opposed by the respondents. In his submission against the application, the first respondent firstly prayed to adopt her counter affidavit and form part of her reply to submission in chief. She then proceeded to argue that, all arguments advanced by the applicants as grounds of appeal are of no legal justification, misleading and devoid of merit. To buttress her contention, she referred this Court to the case of Sango Bay vs. Dresdner Bank, A.G.[1971] EA 17, wherein the Court held inter-alia that, leave to appeal will be granted where prima facie it appears that there are grounds which merit serious judicial attention and determination by a superior court. The respondent contended that, the applicant has failed to meet legal requirement for the Court to grant leave to appeal to the Court of appeal. She further cited the case of Janeth Kibona vs. Mengi Ombeni Mwakisole, Misc. Land Application No. 747 of 2022, HCT - Land Division at DSM which emphasized on the weight of appeal

capable of tasking the minds of the Court of Appeal and concluded that, the applicant's application is not worthy of consideration by the Court of Appeal since the same does not raise a prima facie case, and therefore prayed that the application be dismissed with costs. On their part, the third and fourth respondents in their written submissions against the application, commenced by praying the court to adopt their joint counter affidavits and proceeded to rely on the case of Sango Bay Estate Ltd Page 4 of 9 and Another vs. Dresdener Bank (supra) and accentuated that, the applicant has not shown that, there is prima-facie ground which merits serious judicial consideration of the Court of Appeal and hence prayed the application be dismissed with costs. In his rejoinder, the applicant reiterated what he narrated in his submission in chief and prayed the application be allowed with costs. Having summarised the rival arguments, I have keenly perused the documents on record and examined both parties' submissions for and against the instant application. The issue for consideration and determination before this court is whether the proposed grounds of appeal raise an arguable issue(s) to warrant this court to exercise its discretion and grant leave to the applicant to appeal to the Court of Appeal of Tanzania. While deeply considering the matter under consideration, in the course

of composing this ruling I came to learn that there is an irregularity in the application as the provision of the law cited and mentioned on the chamber summons filed by the applicant, that is Rule 45 (a) of the Tanzania Court of Appeal Rules(Amendment Rules) GN. No. 344 of 2019 is non-existing and could neither be traced nor comprehended. Although I am alive that THE TANZANIA COURT OF APPEAL RULES [CAP. 141 R. E, 2019] was amended through THE TANZANIA COURT OF APPEAL(AMENDMENT) RULES, 2019 via GOVERNMENT NOTICE NO. 344 published on 26/4/2019, but as alluded to above, the same Page 5 of 9 did not amend the provision cited by the applicant, to wit; Rule 45 (a) of the Tanzania Court of Appeal (Amendment Rules) GN. No. 344 of 2019. Further, I am alive to the fact that fact that, in order for the court to do what it is asked to do, there must be proper citation of the applicable law and not based on random citing law or rules which are inapplicable. In the instant application, even if I was to assume that the applicant intended to cite Rule 45 (a) of Tanzania Court of Appeal Rules, 2009, the provision only provides for directives and procedures to be followed in applying for leave to appeal. The same Is not an enabling provision which can move the court to grant the order sought in the chamber summons. Rule, 45 (a) as amended by Rule 6 of GN. No. 362 of 2017 provides that: - 'V5.

In civil matters: - (a) Notwithstanding the provisions ofrule 46(1), where an appeal iies with the leave of the High Court, application for leave may be made informally, when the decision against which it is desired to appeal is given, or by chamber summons according to the practice of the High Court, within thirty days ofthe decision;" As observed above, the above rule only provides for the mode and procedures on how an application for leave to appeal can be made. However, I am of settled view that, in making citation in the chamber summons, not only the procedural provision has to be cited to move the court, but also the enabling Page 6 of 9 provision of the law should also be cited. In this regard, it is inevitable that the applicant ought to have cited the provision of section 5(1)(c) of the Appellate Jurisdiction Act [CAP. 141 R. E. 2019]. Unfortunately, this provision of the law has not been cited by the applicant in his application. Failure to cite this crucial provision of the law, is fatal as such a defect renders the application incompetent, and its remedy is to strike it out as it was expounded by the CAT in the case of Hussein Mgonja vs. The Trustees Tanzania Episcopal Conference, Civil Revision No. 2 of 2002, CAT sitting at Arusha,(unreported), where the CAT held inter-alia that: - "If a party cites the wrong provisions of the law the matter becomes incompetent as

the Court wiii not have been properly moved." Similar position was emphasized by the CAT in Edward Bachwa & Another vs. The Attorney General & Another, Civil Application No. 128 of 2006(CA) DSM (unreported), where the Court held that, wrong citation of the law,section, subsection or paragraph of the law or non-citation of the law will not move the court to do what is asked and renders the application incompetent. See also the cases of Jimmy Lugendo vs. CRDB Bank LTD, Civil Application No. 171 of 2017, CAT at DSM and Puma Energy Tanzania Limited vs. Ruby Roadways (T) Limited, Civil Appeal No. 3 of 2008, CAT at DSM (All unreported). Page 7 of9 Being the trial Judge, I am very much aware of the overriding objective principle made under Section 3A (1) and (2) of the Civil Procedure Code [CAP. 33 R. E, 2019] which was enacted through section 6 of the Written Laws (Miscellaneous Amendments) fAct No. 8 of 2018) and section 3A (1) and (2) of The Appellate Jurisdiction Act [CAP. 141 R. E. 2019] which was enacted through the Written Laws (Miscellaneous Amendments) fAct No. 8 of 2018^ at section 4 which requires the courts to rely on substantive justice in making decisions instead of dwelling on technicalities. However, the above principles applies only where the issue does not go to the root of the case. In the famous case of China Henan International Co-operation Group vs. Salvand

K.A. Rwegaira [2006] TLR 220, the Court of Appeal of Tanzania underscored that: "here the omission in citing the proper provisions of the ruie relating to a reference and worse still error in citing a wrong and in applicable rule in support ofthe application is not in our view, a technicality falling within the scope andpurview ofArticle 107A (2)(e)ofthe constitution. It is a matter which goes to the very root ofthe matter." Similarly, in SGS Societe Generate de Surveillance SA & Another vs. VIP Engineering & Marketing LTD & Another, Civil Appeal No. 124 of 2017 CAT at DSM (on page 23 of the typed judgment), the CAT had this to say: "The amendment bvActNo. 8of2018 was not meant to enable parties to circumvent the mandatory rules ofthe court or to turn ^ ms2^ Page 8 of 9 | ( blind to the mandatory provisions of the procedural law which go to the foundation ofthe case. From the above analysis of the matter under consideration, it is my considered opinion that the defect of citing non-existing provision of the law as well as failure to cite the enabling provisions of the law to move the court cannot be cured by invoking the overriding objective principle. Hence, in this regard, it is my holding that, the application is incompetent for non-citation of the enabling provisions of law which empower the court to hear and determine the orders sought in the chamber summons. Consequently,

this application is devoid of merits, hence it is hereby struck out with no order as to costs. However, for the interest of justice, I feel compelled to grant the applicant another opportunity to file a fresh and proper application within fourteen (14) days from the date of delivery of this ruling without any further delay. It is so ordered. DATED at MOROGORO this 30^^ day of June, 2013. qOH 0,C c

CHAB UJ X. >

JUDGE 30/06/2023 Page 9 of 9