20100424 TZCA Dar es Salaam

1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM i I CIVIL APPLICATION NO. 54 OF 20()9 NICHOLAUS HAMISI AND 1013 OTHERS .......................... APPLICANTS VERSUS TANZANIA SHOE CO. LTD AND 2 OTHERS ...................... RESPONDENTS {Application for EXTENSION OF TIME TO FILE A REVIEW From the Judgement/Decree/Order/Finding/Decision of the Court of Appeal of Tanzania) ( Makame, J.A., Kisanga, J.A., Ramadhani, J.A.) dated the 21 st day of November, 2003 in Civil Appeal No. 62 of 2000 RULING MASSATI, l.A.: By a notice of motion filed through Ms. Miriam Law Chambers, under Rules 8 and 45(1) and (2) of the repealed Court of Appeal Rules 1979, the Applicants had sought to move the Court for I extension of time within which to file an applkation for review against the decision of this Court in Civil Appeal No. 62 of 2006. The application was supported by the affidavit taken out by NICHOLAUS HAMIS sworn on 23 rd April, 2005. The application was opposed by the Respondents. One Albert L. Semng'ondo filed an affidavit in reply. But in additi.on to the affidavit 2 in reply, the Respondents also filed a Notice of Preliminary Objection . to the following effect: 1. The Application is misconceived and/or incompetent for failure to state the grounds for the application. 2. The Application is an abuse of the court process. So, when the application was· called on for hearing, the Court decided to hear the parties first on the prelimina~ objections. The Parties were ably represented by Ms. Miriam Majamba for the Applicants, and Mr. Majura Magafu, for the Responlents. Mr. Magafu, learned counsel, started. On the first part of the preliminary objection, he submitted that since thj application was filed under Rule 45(1) and (2) of the Court of Appeal Rules 1979 and since Rule 45(1) requires the grounds for the application to be disclosed in the notice of motion; and since the Nftice of Motion in the present case, did not state the grounds, the application was defective. The learned counsel however, did not bite any authority (and although he promised to supply one he did ndt do so) as to the effect of that omission. On the second limb of his objection the i I i . I; '' 3 :1 learned counsel briefly submitted ::that since a similar application for 'I, :I I I I review was struck out on 31.1.2009 " for the· same i I mistakes now I committed by counsel in the pr~sent applicatio1, it woulGI be an abuse of process to allow the presbnt application tb remain on record as that would amount to condoni~g non complianle with the law. At the end of the day, Mr. Magafu p)ayed that the aJplication be struck out, although he would not insist on costs. On her part, Ms. Majamba, le;rned counse!, lacted as follows: On the first objection, she admitted that no grounds were stated in the Notice of Motion; but quickly Jdded that the Nltice must be read :1 i 'I together with the affidavit whicl contained the grounds. So the omission was not fatal, she argue~, and asked the Court to exercise I I I : its powers and let it go under Rule 3(2)(b) of the 1979 Court of · 1 1 I Appeal Rules. On the question @f abuse of process, the learned ! :i counsel submitted that the first Notice of Motion which was struck out by the Court suo motu was fol review. The re sons therein were I not argued. In the present application, the Applica~ts are seeking for :i 'I extension of time and so is diff~rent from the first one. It was I I therefore her view that the present Notice of Mdtion was not only not 11:1 I : j. I I 4 I I defective in substance, but also, not an abuse of prtocess. She prayed for the dismissal of the preliminary' objection. In his rebuttal submission, ~r. Magafu saitt that since the Applicants have conceded that th~re are no groun1s in the Notice of Motion, that renders it fatally deftctive. He argu,d that a Notice of Motion is an application itself an:d cannot be substituted with the I I affidavit which is, evidence. The Notice of Motion, he argued, must I I contain the prayers, and the grouts therefore. T~is omission cannot be excused on grounds of over11ght. He thus 1e1terated that the omission was fatal and so the appl)cation must be struck out. i The starting point is Rule 45(1) and (2) of the defunct Court of Appeal Rules. Rule 45(1) required that any forma application to the Court be by way of a Notice of Motion, "whicj shall state the grounds of the application." Rule 45(2) required that the Notice I I of Motion be "substantially in the form A to t6e First Schedule to those Rules ..... " 5 The substance of Form A was as follows: NOTICE OF MOTION TAKE NOTICE that on _ _ _ the day of _ I_ _ 20_ at o'clock in the morning/afternoon or as soon thereafter as he can be heard, Mr.................... Advocate for the above naled applicant will move the Court/ a Judge of the C~urt for an order! that ............... on the grounds that: And for an order that the costs of and incidental to this application abide by the results of the said appeal. The application will be supported by the affidLt of _ _ __ sworn on _ _ _ _ the ......................... day of--"--- 20_ ETC It is therefore clear that the Rule anticipated and dictated that 1 I the grounds for the orders sought be stated in the body of the Notice . of Motion. I am of the further view that by the nextt sentence that the I application be supported by an affidavit, the Rule $et out clearly that an affidavit is something else and could not contai~ "grounds" for the 6 prayers. As rightly submitted by Mr. Magafu an affidavit is evidence , and cannot contain prayers or the 9'rounds thereof. · I In the present case, the Notice of Motion is dr1fted as follows: I NOTICE Oi MOTION (Made under Rule 8 and 45(1) · and (2) of the l[anzania Court of Appeal Rules 1975 and any other e~abling provisionr of the law) I TAKE NOTICE that on the day of _ _ _ 2009 at _ __ O'clock, in the morning/afternoon dr as soon as thJeaft:er as she can be heard MS MIRIAM I. MAJAMB1, Advocate for t~e applicants, will move the Court/a Judge of the coLrt for an order rhat the Applicant be granted extension of time to filJ a review in the pourt of Appeal at Dar es Salaam against the decision of Civil Case (sid) No. 62 of 2000. The application will be supported by the Affidavit of NICHOLAS HAMIS, sworn this 23 rd day 2009. 7 In the notice of motion, no grounds for seekirlg the orders are . I stated, contrary to Rule 45(1) and the substance of Form A; nor is it I indicated where those grounds wm be found. Ifl Ms. Majamba's i argument that the grounds could asl well be contain~d in the affidavit was tenable, at least she would have indicated so iii the body of the notice of motion. She did not. But unfortunately, that arg ment is not tenable, for in a - number of occasions, this Court hJs ruled that th~ grounds for the prayers in the application must be sit out in the bod~ of the Notice of I I Motion. (See COMMISSIONER GENERAL OF TANZANIA REVENUE AUTHORITY v PARAlTATAL PENS~ON FUND (Civil Application No. 73 of 2005 (U!reported) ZU~ERI MUSSA v I , SHINYANGA TOWN COUNCIL G:ivil Application !No. 100 of 2004 1 ' (Unreported) HARISH & ANTHONY F. TEMU v EDDI MATERU (Civil Application No. 8 of 2001 (UnJeported)) Clearly therefore, the Applicants' Notice of Mbtion is defective I I for not complying substantially with Rule 45(1) and Form A of the First Schedule to the Court of AppJal Rules 1979. +d the Court has ' 8 , already held that the omission to site the grounds in the Notice of Motion, is incurable and renders the !application incompetent. I I For the foregoing reasons, I would uphold the preliminary objection that the application is incbmpetent for fai][lure to state the J grounds for the application in the ~ody of the Notr of Motion. As this ground is sufficient to dispose Jf the matter, there is no need to l I go into the merits of the second limfu of the preliminary objection. The application is thus struck out, but there shall be no order as to costs. Order accordingly. ' DATED at DAR ES SALAAM this 24th :day of April, 20Jo : I I S.A. MASSATI II JUSTICE OF APPEAL ~o ~ AJ;;f'"- _P p /Ii/ 4 <o ' <It\ .S. Mgett ( c: :r ' ~ ~ -·,, o ~ '; I DEPUTY REGISTRAR · u l ~ 1,. ~ '~ i' I