20140324 TZHC Mbeya

.. ,.. T_-_f ~---, ~,.;-?'~ -. ~.,.,y~~~~~ ··w& i6triizr +.t1-·'tf"·,.-r · airtMf -~_~a1M·'..11i;iltt?;w-t;.. - -itf~ .. _~~tv!M!.,~~- ,~is" a:~-____..__•_:-"'•,·_·~~· ,.- ... , J}; /HE HIGH COURT 0F TANZANIA (J..AND DIVISION) AT M~BEYA MISCELLANEOUS LAND APPLICATION NO. 30 OF 2011 REV. GEORGE MGENI ................................... APPLICANT VERSUS 19th February & 24th March, 2014 RULING MWAMBEGELE, J.: The applicant Rev. George Mgeni filed an application for leave of this court to allow him file an application for leave to appeal to the Court ·of Appeal out of time. The application has been taken under the provisions of Rule 10 of the Court of Appeal Rules, 2009 and any other enabling provisions of the-law. It is supported by an affidavit of the applicant. On 24.02.2012 the first respondent, a legal person, through a law firm going by the name Mika T. Mbise and Company Advocates, filed a notice of preliminary objection which must be dealt with in limine before the substantive application can be considered on its merits. The preliminary point of objection reads: 1", "I- . ••. . • ·- ~ ·'- i, >' - ~ ...;..li/if!-.t.t--,._,..:::4::~~-_n._!1111.1111.•-"•-•-?~,•· .. --7-!1111117111.-•r-.,..r.c:~.,_,..::-~-;,,,.,1cwr..;:•....,..----.~,..,. &rtrO s·t·r;:: · .. :aetffffefr::t ttlMSiirt:r(S •··' i?iii#'_ C( d,ta~,.•_..,~ T:.is aociic:2!:'.on . , • •is rr:isconc2i.,~c 2nd I l:2c :n r'c'N as it was brought under wrong and inapplicable · provisions of the law. When this matter was called on for hearing on 11.12.2013 the parties agreed to dispose of the preliminary point of objection by way of written submissions. The parties' agreement was blessed by this court and the submissions dates wer~ accordingly structured. The first respondent and applicant have submitted their documents in time and as scheduled by the court. The second respondent has submitted none. For easy reference, in this ruling, I shall be referring to the title of the parties as they appear in the substantive application. Mr. Mbise, learned Counsel for the first. respondent has submitted that the application hc!S been brought under a wrong provision of the law in that Rule 10 of the Court of Appeal Rules, 2009 under which the application was filed, empower the Court of Appeal to extend time within which an appeal can be filed to it, not the High Court. It is construed so because "the court" has been defined to mean "the Court of Appeal of the United Republic of Tanzania". The definition does not include the High Court, he submits. To support this proposition, he cited Hussein Mgonja, Vs the Trustees Vs Tanzania Episcopal Conference, Civil Revision No. 2 of 2002 (unreported) a copy of which has been appended with the written submissions in which it was held: 2 <-.., .. ~----~ft • ~•e·-,1 ,i6H:i;W .i -----,~- -~7~ ,- z·r,~---.i• .:iii..: -. a·· ~-~ -~~-- .T ·,s--P••" ~ ~r -· -~. tnt --~ . - - ___ . ~. cq-~f---~:1Wfs-r9ii:i-· ,~--{ ··te1 _,e.C.,.l-1' / ,)'If :iny party cites the. wrong provision of the. law the matter b~comes incompetel'1t. as th~ court will not have been properly moved. See National Bank of Commerce Versus Sadrudin Meghji, Civil Application No. 20. Of 1997 and Another (unreported) and Mbeya-Rukwa Auto Partsand Transport Vs Jestina George Mwakyoma, Civil Appeal No. 45 of 2000 (unreported). This application is also therefore incompetent for failure to cite the correct enabling provision of the law." Mr. Mbise finally submits that the application before me is no exception. it should therefore suffer the same consequences. In rebuttal, the applicant seems to concede that the application has been brought under wrong provisions of the law but submits that the application is properly before the court and that it should not be dismissed on that - ground. The applicant further submits that the application may be rescued by the provisions of article 107A of the Constitution of the United Republic of Tanzania, 1977 which requires that rights of a person should not be infringed because of unnecessary legal technicalities. I have had enough and uninterrupted time to scan the record of this case and in particular the application and the accompanying affidavit of the applicant supporting the application. I have read as well the parties' 3 .. .- . • ~ ~ · ·· , _ -: _:-:_: _ ~ _.,. ris,;r ae ·, • t:b·=:es;_.... ·* ____ · .a.-~~r•+<~n7' --~~::«E¥wt~ su~rnis.sicns tetNeen the lines. Rule 10 cf tr~e Ccu~.,cf Appe;;i ?-de~ . 2009 under which the appellant has made the application (eads: "The Court may, upon good cause shown, extend the time limited by these Rules or by any decision of the High Court or tribunal, for the doing of any act authorized or required by these Rules, whether before or after th.e expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended. 11 And the provisions of rule 3 of the same Rules defines the term "Court11 to mean "the Court of Appeal of the Un.ited Republic of Tanzania established by the Constitution, and includes any division of that Court and a single Judge exercising any power vested in him sitting alone". This court therefore does not fall under the definition of the term court within the meaning of the Court of Appeal Rules, 2009. As rightly pointed out by Mr. Mbise, learned Counsel for the first respondent, the provisions of Rule 10 of the Court of Appeal Rules, 2009 are meant to give powers to the "Court11 - the Court of Appeal of the United Republic of Tanzania established by the Constitution, and includes any division of that Court and a single Judge exercising any power vested in him sitting alone - to extend time in the manner stated in the Rule. 4 This -eppiic::2t!on \JV-e;s thE-refore; -2~r~-22oiy, orougr.t ur.der 2 wnng 2-:2ciir.;; provision and this . fact does. not seem to be cortltested by the applicant. It ~ is trite law in this jurisd~ction that the court is not.properly moved if wro·ng provisions of the law under which an application is made are cited. There is a string of authorities that give guidance to this court. It may be instructive to point out that the development of the law on this point was ·well expounded by the Court of Appeal in Gautam Jayram Chavda Vs Covell Mathews Partnership [2004] TLR 280. That case traces the development of _this law from the defunct Court of Appeal for East Africa in Abdul Aziz Suleman Vs Nyaki Farmers Cooperative Ltd. & Another [1966] E.A. 409 to the present Court of Appeal of Tanzania in National Bank of Commerce Vs Sadrudin Meghji, [1998] TLR 303, Almas Iddie Mwinyi Vs National Bank of Commerce & Another [2001] TLR 22, Citibank Tanzania Ltd. Vs Tanzania Telecommunications Co. Ltd. & 4 Others, Civil Application No. 64 of 2003 (unreported) and M/s. Ilabi/a Industries Ltd. Vs Tanzania Investment Bank and Another, Civil Application No. 159 of 2004. There are other decisions of Court of Appeal on the subject such as Milacafe Ltd Vs Norman AI-Mahboub Civil Application No. 82 of 2004 (unreported), China Henan International Co-operation Group Vs Salvant K. A. Rwegasira [2006] TLR 220, NBC {1997} Ltd Vs Thomas K. Chacha t/a Ibora Timber Supply {TJ Ltd Civil Application No. 3 of 2000 (unreported), Antony J. Tesha Vs Anita Tesha Civil Application No. 10 of 2003 (unreported) and Edward Bachwa & 3 Others Vs the 5 , .... ,- . . .;, : "' ~ ...,, ' -:---:'· - ~ - Attorney General &' Another Ci,,;i Appiicat:cn No. 128 of 20C6 (JSi\'1 Unreported} In all these cases, the Court of Appeal did not mince words. The law is now settled that wrong or non citation of provisions of the law in support of an application is incurably fatal. It makes an application it purports to support incompetent and in all cases the applications did not escape the wrath of being struck out. The results are the same even in situations where a proper section but wrong subsection of that provision is cited. Can the ailment in the present case, in view of the above authorities, be saved by article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977? This is the question to which I now turn. The applicant contends that the application can be saved by article_107A (2) (e) of the c;:onstitution. Admittedly, the provisions of this article provide that courts, in the determination of civil and criminal matters according to law, shall have due regard to the principles of administering justice without being unduly constrained by technical requirements, which are capable of preventing justice from being done. In Daiman Adam Vs Ernest Mwaisaka, Miscellaneous Land Application No. 7 of 2010 (Mbeya unreported), I had an opportunity to discuss at length the applicability of this article. I will reiterate my position in this ruling as I still hold the same views. For ease of reference, let me reproduce this article as far as it is relevant to the present discussion. It reads (in Kiswahili; the official version): 6 . .:.·'J:i.. ,:;'_":; · , .. · ~-- •·: \'.:,°<·: /f ,)->(:>··/'; ~- ':. ·. :·:> :· :· .., ·/: ?;-'. )· .-,,.•.; · ,. ~ ,· .:i--: ·,: • : / (:.1 "'. -~ · 0 '· ....... . . . ' . ' - ~ • .- :- - . !·- - ' :;.•·· · '"· •.•.,.··.-· .. ·:.: •: •..;:·:.:;.:··..,./.••:-; . >_-t··._-•. r:~'?" :"'.. .-~ •. '.,. ·:~ :_;.•~.t,!.·--.. ~..-:-'\:--~-.. 1• ·.• ~:•,~/'!... ,;.,.,.,l!J· •· ·:," 0 .I,, "(2) Katika kutoa uafnuzi-wa. rrfashauri ya mad2i na jinai kwa kuzingatia sheria, mahakama .zitafuata kanuni zifuatazo, yaani: (a) (b) (c) (d) ( e) Kutenda haki bila ya kufungwa kupita kiasi na masharti ya kifundi yanayoweza kukwamisha haki kutendeka". The above provision was translated by the Court of Appeal in The Judge In-charge High Court Arusha Vs N.I.N. Munuo Ng'uni [2004] TLR 44 as follows: "(2) In the determination of civil and criminal matters according to law, the courts shall have regard to the following principles, that is to say: - (a) (b) (c) (d) ( e) . administering justice without being constrained unduly by technical 7 ___,._ - ·~-- - - - ~ - - ~ ~ ---~-· --·~---·- ---- - · - ~ . ---~--~---~ ,,;--'~-;-_,·.c ;:=..·~-:.-·:· '.~:· ':~...~~ .~«- ·,';,.,~"' ;-~<::.-~_--1_..-·{<,.:_t:;_ ,,;<.':·,··,.:...._ .'"<--~ ... -~-- .~ ..._ ,...,., ,< ~: .r,: , __ ,--,.- vi .. { preventing justice from.being done 11 • And in Samson Ng'walida (supra) the same provision wa::; translated as follows: "(2) In the delivering decisions in matter of civil and criminal nature in accordance with the law, the courts shall observe the following principles, that is to say: (a) (b) (c) (d) ( e) to dispense justice without being tied up with undue technical provisions, which may obstruct dispensation of justice". The official version of the Constitution, as already observed above, is the Kiswahili version. I have quoted the above sub-article of the constitution in order to underpin what it entails with a view to seeing whether or not the same can rescue ... the application from being struck out as was the case in the decisions of-· the Court of Appeal cited above. Unfortunately, for the reasons to follow shortly, the provisions of article 107A (2) (e) of the Constitution do not 8 ---•-.!.......---,i ~ · : : ~ - , r . ~ :• 1·2 r · r - - · . · •-~: 11c§· < · : zikG?·-.· -r · ::~ · w· "• c._, ·· · iii( <·,' □-, ti . . ce· ·•""'n_e · ·s ;. :t .,--~-~- ~... . . -: ••. :_ ·,·-:,;-· ... - • ~:;, ••. . • -~·. i"•·· - .... . -~~?:-~<~\J"'·- . -}•--l'~~i :_.:_:·~-- ":.:- - ~.,:. -:_ • :::.-.,.;·_, . .._. ;· _·.' ·-.:~.": ·1:_ I'. : . .-:, ~- . . . - ,·.. ~ ; "'.· , ~ • ·_ ' ;_ -- .... ,:.· ~ • . ,:: , . . :·' ,"''---./i"' t' _:-r:--:~-- ···\::;- ·~,-J ~/' .-__ . ;·_. :· ..:. ;_ ~--·t-:.., ~- :.:; ' --- ·;_ :-· . c.-:-. :_;-,•• ;_,·. ·: ·/\ ·\<.;:_<'·~,-);::=, ._·~:,·· •. _' ·:_-.·".,._<:/·.:,>: ··.- ... _,!, ''. ·:---·:. •~ · , , - • : . : ~ . ·,• .· .., ,,~:-- _,:.,·.-,_•:..;.:' intended by the article are ·those which if allowed will not prejudice the other party. - If ·cou·rts of low would allow such a position; that course of action would turn the courts of law into a forum of uncertainties. To achieve certainty, a court of law must be correctly moved through a correct provision of the law that mandates jurisdiction onto that court. On this premise, I am settled in my mind that wrong or non citation of a provision of law in support of an application is not a technicality envisaged by, neither is it a technicality falling within, the realm of article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977. I find . fortification for this propositio·n in the China Henan case (supra) in which the Court of Appeal, I quote from the headnote, held: "The omission to cite the proper provision or citing wrong provision and inapplicable rule in supporting the application is not a technicality falling within the scope and purview of article 107A (2) (e) of the Constitution". In the light of the foregoing binding authorities and provisions of the law, I . am satisfied that article 107A (2) (e) of the Constitution does not save the present application; for wrong or non citation of a provision in supporting the application is not a technicality falling within the scope and purview of article 107A (2) (e) of the.Constitution of the United Republic of Tanzania, 1977. 9 "'' ~--~- .,_·,--~~~ •· · ·rc• •·-~""tr·-• "tr~, z( 1 '. ... ·T,-_ · _..,.;; ~- ;~_. . ~ .-.· For the avoidance of doubts, the application cannot be saved as well by . "any other enabling provisions of law", a phrase 011 which the application also purports to stand. This court has observed on a number of occasions that the phrase "any other enabling provisions of law" is now meaningless, outdated, and irrelevant and an unnecessary embellishment. In Janeth Mmari Vs International School of' Tanganyika and Another, Miscellaneous Civil Cause No: SO of 2005 (unreported), this court had an opportunity to make an observation on the phrase in the following terms: . "This song, 'any other enabling provisions of the law' is meaningless, outdated and irrelevant. The court cannot be moved by unknown provisions of the law conferring that jurisdiction. That law must therefore be known. Blanket embellishments have no relevance to the law nor do they add any value to the prayers to the court." (Emphasis not mine). In yet another case; Elizabeth Steven & Another Vs Attorney General, [2006] TLR 404, a panel of three judges of this court [Massati, J. (as he then was), Shangwa and Mihayo, JJ.] guided by the decisions of the Court of Appeal of China Henan international Co-operation Group Vs Salvand K. A. Rwegasira [2006] TLR 220, Aloyce Msella Vs the Consolidated Holding Corporation Civil Appeal No. 11 of 2002 -~ :, : :--,~>;: /'~.~ /_ ... ,··•; ~::.::f•--' .. ·~.••,.,/. ·. ~;.. ,,;:,~_•·.'·:•.~/::./ ~~:1•_.,/<=>~Y-·-'. ,'. ':".. ·, -~.J~:-. , ·•. ; . :· ·~ . .i~i:·._ ..: .·._,· ,:·-·· ·:·.-~.. #>~-·- ;-'· - : ".'~ ..__._. ~ ·::~<,i'·•<~-i, ~.;: . ·r·, .. -· . ,. .;.~. -.. '· ",: .. ,.... ·'; ~ . ' . ~. . ,- ... , ~ ~ -:. ·(Lr:r2:Jort2q} ·t:rd · fa!/S Ha.biba Indu.strfes Ltd -anp 2 Others Vs Tanzani;!/ Investment Bank & Another Civil Application No. 158 of " 2004 (unreported) ·restated the use of tlie phrase at .page 407 as follows: "The phrase 'and any other provisions of laws' is now a useless embellishment. The law has now been settled that in all applications, if one does not cite the enabling provisions of the law which give the power to the court to do what it is requested, or if one cited the wrong provisions, the court is not properly moved and the application would be struck out". To properly move the court, it is imperative that proper provisions of the law under which the applicati~n is made must be cited. The court cannot be moved by unknown provisions of the law to act on an application. For reasons I have endeavoured to state hereinabove, this application is incompetent. I would strike out it with costs. DATED at MBEYA this 24th day of March, 2014. J. C. M. MWAMBEGELE JUDGE 11