maliki abubakarthe lawful attorney and administrator of the estate of the late hawa hamisi mtande vs zawadi rwezaula others 2015 tzhc 2158 10 september 2015

IN THE HIGH COURT OF TANZANIA AT IRINGA MISCELLANEOUS LAND APPLICATION NO. 21 OF 2015 (Originating from Application No. 4 of 2015 in the District Land and Housing Tribunal at Iringa) MALIKI ABUBAKAR (The Lawful Attorney----------- APPLICANT and Administrator of the Estate of the late Hawa Hamisi Mtande) VERSUS ZAWADI RWEZAULA & 14 OTHERS---------------- RESPONDENTS 03/09/2015 & 10/09/2015 RULING KIHWELO, J . The main background to this ruling is that Mr. Yahaya Omari filed the present application for and on behalf of Maliki Abubakar the legal personal representative of the Estate of the late Hawa Hamisi Mtande. The Application was filed under Section 95 and Order VI Rule 17 of the Civil Procedure Code, Article 107A (2) (e) of the Constitution of the United Republic of Tanzania of 1977 and Regulation 7(1) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003. In essence the Applicant sought to move the Court for a number of orders namely:- 1. Revision o f Application No. 4 o f 2015 pending to be determined exparte at the District Land and Housing Tribunal. 2. The Written Statement of Defence titled Miscellaneous Application No. 8 o f 2015 be regarded and treated by the District Land and Housing Tribunal o f Iringa as Written Statement o f Defence in Application No. 4 o f 2015. 3. The exparte order given by the District Land and Housing Tribunal fo r Iringa be set aside. 4. Costs o f this Application be in the course. t 5. Any other orders. The Application is supported by the affidavit of Yahaya Omari. Mr. Mwamgiga, learned Counsel for the respondents was not at ease with the application. He filed a counter affidavit to oppose the application. But, in addition he filed a preliminary point of objection to the application. The crux of the objection is that Mr. Mwamgiga was faulting the application as being full of legal defects and irregularities which included citation of the wrong provisions of the law, defective verification, defective jurat just to mention some. 2 On account of these shortcomings, the learned Counsel prayed for striking out the application with costs. As Mr. Omari did not concede to those objections, the Court had to hear the arguments from both sides in support and against the objections. Mr. Mwamgiga’s submission was very brief and to the point. He submitted that the provisions of the law cited in the Chamber Summons did not support the application. He forcefully argued that Article 107A of the Constitution as well as Section 7(1) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 do not apply to the order sought. Mr. Mwamgiga prayed that the present application be struck out with costs. After that brief submission the ball fell on Mr. Omari’s lap. Responding to Mr. Mwamgiga’s submission, Mr. Omari argued that the application is proper because the High Court has revisional powers and he hurriedly admitted that he did not cite those provisions but the provision of Article 107A which he cited was sufficient to move the Court and he prayed to the Court to resort to the provision of Section 95 to dispense justice. 3 I have anxiously and carefully considered the submissions by both the applicant and the learned Counsel for the respondents and I feel that the first preliminary objection deserves a serious consideration as it relates to the very competency of the application itself. The question that calls for consideration is whether the applicant has cited the correct provisions of the law in support of the application. This issue should not detain me much. The answer to the above question is found in an unbroken chain of authorities to the effect that wrong citation of the law, section, sub-sections and/or paragraphs of the law or non-citation of the law will not move the court to do what it is asked and renders the application incompetent. Some of these authorities include NBC V Sadrudin Mengji, Civil Application No. 20 of 1997 (unreported), China Henan International Co-operation Group V Salvand K.A. Rwegasira, Civil Reference No. 22 of 2005 and Abdallah Ndope & Others V NHC, Civil Application No. 21 of 2006. From the above chain of authorities, it is my considered view that the respondent’s counsel's submission has merit in that the Applicant has not properly moved the Court. What remains to be answered is can Section 95 of Civil Procedure Code 1966 alone support an application? 4 The answer is to be found in the decision of this Court in Hassan Karim & Co. Limited V Africa Import and Export Central Corporation Ltd [1960] EA 369 commenting on Section 151 of the Indian Code of Civil Procedure as applied to Tanganyika then and now Section 95 of the Civil Procedure Code the Court held that Section 95 of the Civil Procedure Code does not independently confer any power on the court nor any rights to the litigants. This view was also adopted by the Court of Appeal of Tanzania in Tanzania Electric Supply Co. Ltd V Independent Power Tanzania Ltd & Others Consolidated, Civil Application No. 19 of 1999 and 27 of 1999 (unreported). I feel no remorse in saying that I need not be detained by Mr. Omari’s obvious confusion and misconception of the law on the applicability of Section 95 of the Civil Procedure Code. So for all the above reasons, I would agree with the respondent’s counsel that the application has been brought under wrong and inapplicable provisions of the law. On the above authorities, this decision is sufficient to dispose the matter without going into the other objections raised. 5 Accordingly, the objection is upheld and the application is struck out. Mr. Yahaya Omari is personally condemned to costs for filing a frivolous application before the Court. Ruling to be delivered by the Acting Deputy Registrar on 10th September, 2015. /JUDGE 08/09/2015 6