MS CM HYTECH BUSINESS LTD VS MS NBC MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL CASE NO. 91 OF 2018 1. M/S CM HYTECH BUSINESS LIMITED.................. Ist APPLICANT 2. CHARLES MSETI MARWA.................................... 2nd APPLICANT VERSUS 1. M/S NATIONAL BANK OF COMMERCE LTD...... 1st RESPONDENT 2. M/S BANI INVESTMENT LIMITED.................... 2nd RESPONDENT RULING: MRUMA, J: Under a certificate of extreme urgency, the Applicants M/s CM Hytech Business Limited and Charles Mseti Marwa filed a chamber summons supported by an affidavit seeking from this court an interim order restraining the Respondents, their agents or servants from auctioning or dispose of landed properties comprised on Plots No. 112 and 126 Block "D" Mbezi Luguruni area within Kinondoni Municipality, and Plot No. 143 Block i "H" Mbezi, Plot No. 998 Block "C" Manzese Area and Plot No. 745 Block "C" Sinza area, all within Kinondoni Municipality in Dar es Salaam. The Respondent filed a counter affidavit sworn by its principal officer Mr. Fredrick Mtei strongly opposing the reliefs sought in the chamber summons. Pursuant to the provisions of Rule 64 of the High Court (Commercial Division) Procedure Rules 2012 counsel for the parties filed skeleton written arguments for and against the prayers sought in the chamber summons. At the hearing Mr. Geofrey Lugomo, Advocate represented the Applicants and Mr. Tairo Makarious appeared and argued the matter for the Respondent. The Application is brought under the Provisions of Order XXXVII Rule (1) (a) and (b) and (4) of the Civil Procedure Code (R.E. 2001). Before going to the merits of the Application I perused the chamber summons and discovered that it is premised under non- existing provisions of the law. There is no Rules (1) (a) and (b) and (4) under Order XXVII. Order XXVII of the Civil Procedure Code has ten (10) Rules namely Rules 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. Rule 1 of Order XXXVII has two sub-rules namely Rule 1 (1) (a) (b) (c) and (d) and sub rule (2). There is no Order in the Civil Procedure Code which has sub-rules without Rules. Our jurisprudence is teeming with myriads of authorities to the effect that a proceeding brought under wrong provisions of the law is 2 incompetent and ought to be struck out. It is equally settled law that non­ citation or citation of non-existing law renders the proceedings incompetent (see Husein Mgonja Vs The Trustees of T.E.C AR Civil Revision No 2 of 2002 and Robert Leskar Vs Shibesh Abebe A. R. Civil Application No. 4 of 2006 CAT, (both unreported). The issue of citation of non- existing law was not raised by the parties and counsel did not have opportunity to address the court on it. However as it is as clear as a day light inviting counsel to address the court will amount to an academic exercise and wastage of court's precious time. In view of this I find no pressing need to canvass the merits of the application. I proceed to strike it out and make no orders as to the costs. A.R. Mruma Judge 23rd July, 2018 3