20100806 TZCA Dar es Salaam
Failure to cite the correct enabling provision (Rules of Court) in an application for review is fatal, and the Constitution cannot be relied upon for such applications.
Source-derived case information.
- Citation
- 20100806 TZCA Dar es Salaam
- Parties
- Applicant: Pius Sangali & 16 Others; Respondent: Tanzania Portland Cement Co. Ltd
- Court
- TZCA
- Jurisdiction
- Tanzania
- Judgment Date
- 6 August 2010
- Procedural Posture
- Civil Application / Ruling on Preliminary Objection in Application for Review
- Outcome
- Application struck out with costs
- Legal Topics
- Review of Judgments, Preliminary Objections, Procedural Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Sangali & 16 Others
Applicant
Tanzania Portland Cement Co. Ltd
Respondent
Procedural Posture
Civil Application / Ruling on Preliminary Objection in Application for Review
Legal Issues
- 1 Whether the application for review was properly brought under the correct enabling provision
- 2 Whether failure to cite the correct enabling provision is fatal to the application
- 3 Whether amendment of the notice of motion should be allowed
Ratio Decidendi
Failure to cite the correct enabling provision (Rules of Court) in an application for review is fatal, and the Constitution cannot be relied upon for such applications.
Court Disposition
Application struck out with costs
Orders
- Application struck out
- Applicants to pay costs
Full Case Text
Judgment text and source record
1 paragraphs
IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, C. J.; MUNUO, l.A.; And NSEKELA-, J. A.) CIVIL APPLICATION NO. 7 OF 2005 BETWEEN PIUS SANGALI & 16 0TH ERS ... APPLLICANTS AND TANZANIA PORTLAND CEMENT CO. LTD ... RESPONDENT (Application for Review from the decision of the Court of Appeal of Tanzania at Dar Es Salaam) (Ramadhani, l. A.; Nsekela, l. A.; And Kaji, J. A.) 'dated the 17th day of November, 2005 r' in Civil Appeal No. 100 of 2001 () RULING OF THE COURT . 15th day of June & 8 th Sept, 2010 RAMADHANI, C. l.: The applicants were represented by Mr. Joseph Rutabingwa, learned advocate, while the respondent had the services of Mr. Mkombozi Mhina, learned counsel. The respondent filed a notice of preliminary objection containing ·three grounds but Mr. Mhina abandoned ground one on limitation. On the other hand Mr. Rutabingwa conceded ground three that the notice of motion does not disclose the ground of review as required by a number of decisions of this Court. t -------- - - ___ __::::-:"-,-, Mr. Rutabingwa contested ground two which averred that the applicant cited Article 13 of the Constitution of the United Republic of Tanzania as the enabling provision for the application instead of the Rules of Court. We agree with Mr. Mhina that it has never been the practice to cite the Constitution and this Court expressly stated in Transport Equiopment Ltd~ v. Devram Valambhia, Civil Application No. 18 of 1993 that the Constitution does not provide for review. So, we uphold this ground. We do not agree with Mr. Rutabingwa's request that he be allowed to amend the notice of motion since the respondent has not been prejudiced. CJ So, we strike out the application with costs. DATED at DAR ES SALAAM, this 6th day of August, 2010. A. S. L. RAMADHANI CHIEF JUSTICE E.N.MUNUO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL 2