kenneth nyamubi vs david elingaria maro another 2016 tzhc 2146 29 january 2016

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT PA R ES SALAAM MISCELLANEOUS CIVIL APPLICATION N 0.216 OF 2015 (Originating from Civil Case No. 90/1991) KENNETH NYAMUBI (The Legal Representative of Mary Rogate Munga, Deceased) ............... APPLICANT VERSUS DAVID ELINGARIA MARO ............... 1st RESPONDENT MAMBA AUCTION MART & COURT BROKERS .... 2nd RESPONDENT Date of last order 14.7.2015 Date of Ruling 31.8.2015 RULING Feleshi, J: This Ruling is determining the Applicant's prayer inviting this Court to review the decision of the Dar es Salaam Resident Magistrate's Court Kisutu (Hon.I. Arufani-PRM) dated 9/3/2015 striking out his Application No. 188/2015. The struck out Application was for the extension,of time to allow him to file an Application to set aside the dismissal order of that court dated 29/4/2014 which, like the present Application based on the RM Civil Case No.90/1991. The parties in the original case were David Elingaria (Plaintiff) and Anna Lubuva (Defendant). At the trial, the plaintiff had unsuccessfully moved the court to declare him as the lawful owner of Plot No.272 Block B Mikocheni Dar es Salaam. He however successfully appealed and the High Court in Civil Appeal No.147/1995 (Hon.Mapigano, J.-as he then was) on *21/12/1999 declared him the lawful owner of that Plot. However, despite the above position, the judgment debtor on 9/1/2001 sold the Plot to Mary Rogate Munga who unfortunately died on 23/1/2015 but l after transferring the Title on 12/4/2001 from the judgment debtor to her and after effecting developments on the suit plot. Before meeting her death, Mary Rogate Munga filed an Application in the trial court/executing court to object the execution of the Decree but her objection was not determined and that's why the Applicant who became her legal representative on 2/7/2014 filed his Application No. 188/2014 which, as aforesaid, was struck out on 9/3/2015. The basis of the executing court's decision is premised on the Applicant's noncompliance with Order XXII Rule 3 (1) of the Civil Procedure Code, [Cap.33 R.E.2002] which requires whoever succeeds the dead plaintiff's suit to secure leave of the trial court before he is made a party to the proceedings. I have gone through the submissions made by the M/S Smart Lawyers (Advocates) for the Applicant and Eliacha A.Ndowo, Advocate for the 1st Respondent. It is the contention by the Applicant that by virtue of the fact that the late Mary Rogate Munga is' the present Title holder of Title No.186308/72 her right to be heard through him should be guaranteed. On the part of the 1st Respondent they categorically do not think if that right can be guaranteed against the law. The chronology of events and decisions made by this Court in Civil Appeal No.147 of 1995 (Hon.Mapigano,J.-as he then was), Civil Application No.35 & 36 of 2012 (before Hon.Juma,J.-as he then was) and Civil Revision No. 21 of 2012 (before Hon.Mwaikugile,J.-as he then was) wherefrom we learn that the appeal was allowed in disfavour of the 1st Respondent and her two application to object the execution of the decree were dismissed leads us to only one issue which is whether the Applicant who is the legal representative of an objector in the original suit was entitled to be made a party in the proceedings. applicant has proved non compliance vide the certified certificate under section 39(6) of the Energy and Water Utilities Regulatory Authority Act (supra) thus seeking for enforceability through an Injunction of the Court. It is on record and as correctly submitted by the applicant's counsel that, the applicant filed a Compliance Order in terms of section 39 of the Energy and W ater Utilities Regulatory Authority Act (supra) and section 19 •of the Petroleum Act, 2008. It is also not disputed that, the respondents were served with the said Compliance Order which they did not comply with. Proof of the Compliance Order suffices as is made clear under section 39(6) of the Energy and W ater Utilities Regulatory Authority Act (supra) which provides:- "(6) Notwithstanding any law to the contrary, the provisions of this Act where an order or a certified certificate is produced or submitted to the High Court, the order or a certificate shall be conclusive proof of its making by the High Court and of the facts to which it relates". From the above facts in synopsis, it is clear that the leveled allegations and proof did not encounter any objection from the respondents. This is exhibited by their failure to resist the application in Court despite being dully served with the pleadings. Besides, as correctly submitted by the applicant's counsel, after the Compliance Order, the respondents were obliged to comply with that order under section 39(1) & (2) of the Energy and W ater Utilities Regulatory Authority Act (supra) which provides:- "(1) Where the Authority is satisfied that a person has committed or is likely to commit an offence against this Act or a sector Act it may make a compliance order under this section. Page 3 of 4 (2) Any person against whom a compliance order is made shall comply with the order. Failure.to comply has the consequences of the applicant filing an application for enforcing that order in the form of Injunction against the wrongdoers under section 39(4) of that Act (supra) which reads:- "(4) A compliance order shall be made in writing specifying the grounds for its making and shall be enforceable as an injunction of the High Court". Thus, in a nutshell, an Injunction is hereby entered against the respondents barring them from conducting fuel business at the respective Petrol Station(s). Besides, the respondents are ordered to pay a fine of Tshs. 3,000,000/= (Tanzanian shillings three million) in terms of section 42(1) of the Energy and Water Utilities Regulatory Authority Act (supra). In that regard, the application has merit in law and it succeeds to the above extent'with costs. It is so ordered. E.M . F E L E S H I JU D G E 29/ 01/2016 Ruling delivered in Chambers this 29th day of January, 2016 in presence of Mr.Timoth Mwakisambwe, Advocate, for the Applicant in the absence of the Respondents. E.M . F E L E S H I JU D G E 29/ 01/2016