20080325 TZCA Dar es Salaam

i i 11 ! ,I I: 11 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM I: lj I' , !! I I 1) ( CIVIL APPLICATION NO. 150 OF 2007 i ./ ' ,· C/ F NO. 1~3 0F 2006 1 lJ I ' KINONDONI MUNICIPAL COUNCIL ........ i .. J.. .............. APPLICANT VERSUS ·1 :l ALPHONCE BUHATWA ............................ 1.... 1. . . . . . . . . . . . . RESPONDENT ' i i : (Application for order to dismiss t~e ~ppeal from the decision·of · ·· the High Court of Tanz~nia I ' - Land Division .•·•··dated·t:: :;;:::;J:e, 2006 in :i I· Land Case No. 53 of !2006 ----------- ! RULING 1 6 & 27 March 2008 i i . MBAROUK, J.A.: :I :i lj !I . . !1 !1 The applicant. Kinondoni Municipal 1ouncil has filed a notice of 1 ![ I motion under Rule 45 of the Court of ApAea!, Rules, .1979 seeking for . ,: I; ;i, ! an order of this Court to dismiss-the app~al Jiled by the appellant on . , :j 1: ' I 11 10th August, 2006 on the ground that tHe $ame is incompetent for want of leave from the High Court of Tanz~+ pursuant to Section 47 :1 i (1) of the Courts (Land Disputes Settlements} Act No. 2 of 2002. The ,: 1 applicant1s notice of mot1pn was then fol lowed by a preliminary ;' i I i I; objection filed by the respondent. Th~re~fter, the applicant filed 2 ., . !i : another notice of motion apparently for the purpose of rectifying the .I !I I: defect in respect of which· the preliminary ?bj'~ction is based. The I ,, 1 two applications were consolidated. ' [ '· .I i 1 Clearly, the position of this Court al rtgards pre-empting a ! ' . ' preliminary objection has been spelled out i~- D~vram Valambhia v. I! . ,1 ii : . Transport Equipment as quoted in Al:mas ,, Idde Mwinyi v. : I' .1 " · National Ba~k of Commerce & Anotheri, qivil Application No. 88 ! : of 1998 (unreported). The practice of : pre-empting preliminary 1 11 11 • ii i : objection by filing another notice of motion! is .:not allowed. For that • • I, - . . .·. , . 'i i 1· ·. reason the second notice of motion iin Civ jl Application No. 150 of 1 I ' l :i 2007 is hereby struck out, hence I will proceed to determine the 1 , 11 I !1 1 preliminary objection in.Civil Application No. h63 of 2006. 'I i At the hearing of the preliniJnary obje,cti(:m, Mr. Mgare, learned ,,. ,, . 1i ! counsel for the respondent, submitted tha~ it is on record that on . ,: 1: !i 1: 7.11.2006 the applicant filed a notice of motion to dismiss the i ' ., Respondent's appeal filed on 10-8-2006. H~ ~~id that Rule 45 of the , 1 !1 : Court of Appeal Rules, 1979 was cited by: the applicant as the I 3 ,i 11 1 ; enabling provision to move the Court. Mr. Mg~~e :~ubmitted that Rule 45 is about Form of Applications ' to Court add !j ; !not for striking out [I i,1 notice of appeal or appeals. He said the cite~ ~ule is in applicable, I' ,; ,l . and added that there are a:1number ,: of authorities i to that effect. He J . Ii ·. then referred this Court to :the decision in Alfllas Iddie Mwinyi v. . . ,J. 1/ i • ) 1i National Bank of Comm~rce & Another (sppra). ii • i' I iI 'I I 1· •I I I ' i1 !; ' I ,; 1! On his part, Mr. Jas,son, learned coqn$~I for the applicant . ' 11 ': persistently maintained that under Rule 47 (1:0 df the Court of Appeal ·.·. . · !J i · .. Rules, 1979, :t~en:~ i~ no :specific time se~ fpr a party to make .·. . ,.; :. . .• ...· i r1 amendments of his document. He insisted that they have complied . !I i: .] ,I , Ii 1· with all necessary conditioos stipulated in ~ul,~ 47 (1). .. I Hence he submitted that the. pendency of the Jre1,lminary objection is . , . ,1 :1 fl immaterial, but can come u~ at the,~earing ~f t~at application. . I 1j II I! I: Ii !; ;I 1·: . 1j : He then distinguished!this case with the:,·case of Almas Iddie . . . 1/ :,! ' ' i ./ .. Mwinyi (supra) and said -that the same ijis :i not applicable in the ,r 11 'I • , I I instant case. He submitted that the facts are different and attract 1 / ij .; different legal interpretation. He explaine& the difference as being . 111 . I '\ i! I, I • I 4 ,,I I; 11 that in the current applicat\on (Civil Applicatiqn ~o. 163 of 2006) they ;I ' , I : I I i I, • claimed that the appeal is incompetent for 1want of leave, hence 1f 1 I • ii" It 11 ,I ' upheld, according to him, it means that t~er 7 is no appeal at all 1 i , hence it has to be pismissed. Whereas in tpe case of Almas Iddie 1 I ,1 I, [' Mwinyi (supra) the end result was the str*ing out of the notice of ' f appeal. I , , For that reason, Mr. ;Jasson submitted!: that Civil Application No. !( !j I I 150 of 2007 was properly before this Courti giyen the nature of Civil ' I I :: 1: ! · .· App{ication No. 163 of 2006. He therefore pra~ed for the preliminary ', '' .' ' ' 'i ' · · objection to be over~uled with costs. 1; 'I , :.: :1 In his r¢joinder, Mr.· Mgare submitt~d that Rule 45 does not . . ,j, I I .'. ·> . . ! ii apply for the dismissal of the appeal as allegea by his learned friend. . . -. . !-! . ...., -~:/·· ,l i: i ij j He further correctly submitted that Rule 17 bf the Court of Appeal 11 I I ' · ' ' I ; :' 1: , Rules, 1979 applies where' there is no prllifl1inary objection before I 'I :! and not after the same has been filed. Hd added by submitting that '1 I I I , the case of Almas Iddie Mwinyi (supra) tlad in mind that there was 1 I 1' 11 1: I . such a Rule 47 (1) qnd its decision was not: intended to override what II ,, i 5 'f I . i [j I have been stated in Rule 4~ (1) of the Court 4ppeal Rules, 1979. 1 For those reasons, he prayed for the prelim\na ry objection to be 1 1 !I upheld with costs. ',; 1 1 :i 'I i I' I I .I.. ,,I !1 I 1, I I In the instant case, the notice of motion'/ is jfiled under Rule 45 1 ' ' iJ i; which is for Form of Applications to Court; cle~rly,: it is an inapplicable , J . : II !' _section of the law to make the Court be p~operly moved for the . . ! ' ! IiI i. prayers prayed. As pointed ,but in the case of::th~ National Bank of · i I! i; J : ) i Commerce v. Sadrudin ~eghji, Civil Applka ~ion No. 20 of 1997 1 . •I '; (unreported) this Court stated:- ji Ii I I I I: "It follows therefore that the application has been filed by a notice of motidn tnder an inapplicable secti.on of the law. C~n$equently, ' _. •, '" '. '·, : i as the .Court. was nof-Fproperly ! mbved, the 1 1 . ,· 'I ; ' I i• application is likewise, •incompetept. ~r I .1 : . 11· _r,' . I . i 1 As stated above, in th.k instant case t~, e ~pplicant invoked. Rule i 1j Ii 45 to move the Court seeking for the order§ df this Court to dismiss ' II I i' the appeal filed by appellant (respondent) pn 10th August, 2006 on 1 ' I lj the ground that the same is incompetent fori want of leave of the II 11 I I 1 i/ i 6 o. !I i, High Court. However there[ is no doubt that in 1uc:~ a prayer, Rule 45 is an inapplicable section ofil the law to move th¢ Court properly. It is I I/ ': a practice of this Court that a proper provisio~ of the law has to be lj I I ,, cited by the applicant who, wishes to move th~ C9urt in applications. 1 1., ' " ·,.! 'I I ,: • Several decisions of _this Co_urt have decided t1at':a wrong citation of .. ·,. ·. . . ' 11 ,, a law renders. an application incompetent. (Se~, Citibank Tanzania • II : ' Limited v. Tanzania .Telecommunications i'co. Ltd. & Four 1 . 11 I i/ i' Others, Civil Application N_o. 64 of 2003 ( uh reported) and China ,,' ' j .I . 1i !, Henan International Co-operation Gro~p:: v. Salvand K.A. I, I 1' I ; ,.Rwegasira, . Civil Referenc~ No. 22 of 2005 Ciun~eported) to name a ':· ,! ' 1:' few. 'i 1/ 1/ 'j Ih this application, the applicant has citec;I a wrong citation of !: I . '.· • • • • 1i '1 the law as shown above, hence tha.t renders his application No. 163 . ' 1 i !j :, 11 I of 2006 incompetent. Being incompetent the1Japplication is struck out with costs. : ii II I i.l I 7 " I ;f ti th DATED ~t DAR ES SA_LAAM this 25 day of :4:_March, 2008. ·I.\ :1 I ' ii ' '! M.S. MBAROUK ' JUSTICE OF APPEAIJ " . .. > ... d : I I... ! ,i ·I I certify that th1s·1s 9true copy of the original. I ~·_,,.~_:_. .. ; .~.,I jr // I'' \ I I ,1 ' /1 I i ;j