20041130 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 231 OF 2004 ~ OMARI WAGE & 17 OTHERS ...... APPLICANTS VERSUS NASSORO O. HAMAD & ANOTHER ...... RESPONDENTS RULING MUSSA, J. I ' This application has its origins in the Regional Housing Tribunal of Dar es Salaam. The applicants who are tenants of the respondents applied to the Tribunal to have it asses and fix standard rent for the premises. The trial Tribunal adopted a valuer's report ,. and accordingly assessed and fixed the standard rent of the· premises. Dissatisfied with the decision of the Trial Tribunal the applicants unsuccessfully appealed to the Housing Appeals Tribunal which in effect dismissed the appeal. The applicants have preferred an appeal and are now seeking an order of this court to sta\", the execution of the decree of the Housing Appeals Tribunal pending the hearing of the Appeal on the merits. The application is by Chamber Summons and the same is expressed to be "Made under Order XXI . Rule 24 AND XLIII Rule 2 of the Civil Procedure Code 1966 and any other enabling provision of the law". The applicants are represented by Mr. Kiozya, learned advocate while the respondents are advocated by Mr. Maira. When this matter came up for hearing, Mr. Maira, learne.d counsel for the respondents, raised a preliminary objection in points of law as to the competence of the application Mr. Mairas' first limb ( , of contention was that this application be struck out on the grounds that it was not properly before the court. To support his contention learned counsel submitted that in as much as this is an appeallate court and not a court to which a decree has been sent for execution, then this application ought to have been brought under the provisions of Order XXXIX Rule 5 (1). Learned counsel for the respondents submitted that to the extent that the application has been filed under an inapplicable provision of the code, the court is not properly moved to hear and determine the application. Counsel ( 'I referred me in this connection to a court of Appeal Ruling in ZNZ Civil Application No. 3 of 2003 Naibu Katibu Mkuu (CCM) VS Mohamed Ibrahim Versi and Sons (Unreported) and in particular to that part of the judgment of Nsekela J.A. which reads at pg. 5:- "In this application, the applicant has not cited which provision of the law is relied upon to move the court to enlarge time. As the court has not been properly moved, the application is 2 undoubtedly incompetent. It is accordingly struck out with costs". Mr. Mairas' second limb of contention was that even assuming Order XXXIX Rule 5 (1) was contemplated, the application will still be incompetent for breach of Rule 5 (3) (a), (b) and (c) of the Order which require the applicants to satisfy the court, respectively, that substantial loss may result to them unless the order for stay is made; that the application has been made without unreasonable delay; and that security has been given by the applicants for the due performance of the decree. It is, perhaps, pertinent to note in this connection, without going into the merits of the application, that the affidavit deponed to by the applicants does not disclose any facts in support of the requirements provided under Order XXXIX Rule 5 (3). Learned Counsel for the respondents then contended that the applicants' continued stay in the suit premises is in contempt of the Order of the Housing Appeals Tribunal. The applicants, he 1 1 submitted, are tresspassers whose hands are tainted. Stay of execution, counsel argued, is a discretionary remedy that cannot be availed to the applicants while they continue to flout the order of the Tribunal. Counsel referred me in this connection to the decision in NELLY AGATHA STROBING VS GEOVANI BALETO reported in Vol. 23 EACA at pg. 47. Mr. Kiozya, resisting the preliminary objection, contended that this court has been properly moved and should proceed to deal with the application on the merits. Apart from the application having been made under Order XXI Rule 24, he submitted, the same is also expressed to have been made under "any other enabling provisions of the law". To that extent, he argued, Order 39 was contemplated and the court should overrule the preliminary objection so that justice is dispensed to the parties on the merits. ( . Mr. Kiozya also impressed upon me to take cognisance of the fact that this matter arose from the Regional Housing Tribunal and has been pending in courts for sometime now. Counsel disclosed that a similar application for the same relief is pending in the court of Resident Magistrate at Kisutu. Mr. Kiozya countered Mr. Mairas' contention that the applicants are in contempt arguing that the time set by the Housing Appeals Tribunal is yet to expire and the applicants are not in breach of any order. I I I propose to first deal with that limb of objection alleging that the application is not properly before this court. As correctly pointed out by Mr. Maira, counsel for the respondents, once an appeal has been filed it is the appeallate court that is seized of the matter and any application for stay of execution must be brought under the provisions of Order XXXIX Rule 5 (1) of the Code. Order XXI Rule 24 refers to the court to which a decree has been sent for execution and is inapplicable in a situation where the application is before an 4 appeallate court. While conceding that the proper procedure would have been to file this application under Order XXXIX Rule 5 (1). Mr. Kiozya submitted that Order XXXIX was contemplated in the words "any other enabling provision of the law" appearing in the body of the Chamber Summons. With respect to learned counsel for the applicants, it was difficult for me to appreciate the point of his submission. It seems to me and it is unnecessary to point out that the language of the Chamber Summons is plain and unambiguous. What it seeks is certainly a stay of execution under Order XXI Rule 24. Such is the nature of this application. No authority has been cited and indeed I have not found any in support of counsel proposition that it is competent for this court to treat the application as one brought under Order XXXIX Rule 5. The mere statement in the Chamber Summons that the application has been made, inter alia, under any other enabling provision of the law cannot, in my view, operate to change the nature of this application; Surely such a vague expression cannot be authority to accommodate an otherwise disorderly chamber summons. That the applicants did not depone to facts in support of the requirements of Rule 5 (3) of Order XXXIX fortifies the view, which I take, that the application before this court could not have been ment for that Order. It has been preferred, so to speak, under an inapplicable provision of the code. 5 ... Counsel for the respondents urged the court to strike out the application on authority of the Court of Appeal decision referred to herein above. Naibu Katibu Mkuu (CCM) was, perhaps decided on its own facts and circumstances. Whereas in the Court of Appeal decision the court was comfronted with a situation where the applicant did not cite any provision of the law, in this application, the court is grappling with a· situation where the applicant has cited an inapplicable provision of the law. Furthermore, the court of appeal was concerned with the Court of Appeal Rules which are not applicable in this court. I am nevertheless of a settled view that where there is a specific provision of the code which would meet all the necessities of a particular case, the court can only be seized of the matter through that provision and not otherwise. Counsel for the applicants asked the court to take cognisance of the fact that this matter has been pending· in courts for quite sometime and that it was now opportune to hear the parties on the merits. With respect, a party can only seek the indulgence of the court where the proceedings before it have been brought the proper way in terms of the procedure prescribed by the code. It is in substance that the applicants have failed to comply with the requirements of the code. The objection is, I think, well taken as the defect is a fundamental one. It goes to the very root of the application and, as far as this court is concerned, there is no competent application before it. In spite of the fact that the error apparent on the chamber summons was pointed out in the pleadings 6 ... to counsel for the applicants, no attempt was made to apply to this court for leave to amend. The Orders and Rules of the code were not made in vain. They are intended to regulate the practice of the court. Learned counsel must understand that the practice of instituting proceedings in this court without paying due regard to the orders and Rules of procedure is detested and must be discouraged. The needs of justice are not served by proceeding on defective and disorderly applications; they ( are better served by having such applications struck out particularly when the same are drawn by professional hands. In the event, I sustain this portion of the preliminary objection and hold that this application is not properly before the court and is, accordingly, struck out with costs. In the light of the view that I have taken, I do not deem it necessary to deal with the remainder grounds of the preliminary objection. JUDGE 30/11/2004 7 Delivered in Chambers in the presence of Mr. Kiozya and Mrs Chikoma. JUDGE 30/11/2004 Order: Hearing of the appeal 16/03/2005. K.M. f . JUDGE 30/11/2004 8