saiboku payan vs esrael ndumuya 2009 tzhc 254 23 april 2009

IN THE HIGH COURT OF TANZANIA AT ARUSHA MISC. CIVIL APPLICATION NO. 99 OF 2007 f Originating from fPC) Civil Appeal No. 17 o f 2004^} SAIBOKU PAY A N .......................................... APPLICANT Versus — ESRAEL NDUMUYA.................................. RESPONDENT 26thMarch & 28thApril. 2009 RULING Before Mmilla., B.M.: This application has been instituted by Saiboku Payan. It has purportedly been brought under the provisions o f section 5(1) (e) o f the Appellate Jurisdiction A ct No 15 o f 1979 read together with Rule 43 (b) o f the Tanzania Court o f Appeal Rules, 1979. It is seeking for leave to appeal to the Court o f Appeal o f Tanzania against the decision o f this court in (PC) Civil Appeal No 17 o f 2004 dated 6th September, 2007. The application is supported by an affidavit sworn by the applicant himself. In paragraph 5 o f his affidavit the applicant has raised two points o f law which he thinks require consideration o f the Court o f Appeal o f Tanzania. The application is being contested b y the respondent Esrael Ndumana who is being advocated for by learned counsel Nelson Merinyo. There is filed a counter affidavit in which, apart from asserting in paragraph 4 thereto that the matters which the applicant wishes the court to certify as matters o f law are not in fact matters o f law but matters o f evidence, there is also raised a preliminary point o f law that the application has been brought under wrong provisions o f law. I have found it convenient to start with the preliminary point o f law in view o f the fact that if upheld, it is capable o f disposing o f the whole appeal. To begin with, learned counsel Merinyo has submitted there is no section 5 (1) (e) in the statute book cited by the applicant. Relying on the case o f Ms Ilabila Industries Ltd and 2 other v. Tanzania Investment Bank Ltd, CAT, Civil Application No 159 of 2004 (Unreported), he has asked this court to strike out the application for being incom petent. It is a fact that although the applicant says he cited section 5 (1) (c) o f the Appellate Jurisdiction A ct, he in fact cited section 5 (1) (e) o f the Appellate Jurisdiction A ct which is non existent. It is certain therefore that because the application is based on a wrong and/or non existent provision o f law the same is incompetent. The question that follows is; what happens if the court is wrongly m oved? The answer to this seems to lay in the decision o f the Court o f Appeal o f Tanzania in, among others; the case o f Ms Ilabila Industries Ltd and 2 other v. Tanzania Investment Bank Ltd which has been cited by learned counsel Merinyo. In that case counsel for the applicant had cited a wrong provision o f law which was reflected in the N otice o f Motion. Comparing the situation with that which obtained in the case o f Citibank Tanzania Ltd v. Tanzania Telecommunications Co. Ltd and 5 Others in which the applicant did not cite a specific subsection under section 4 of the Appellate Jurisdiction Act, 1979 as amended, the court said that:- “ In neither case could the court derive jurisdiction from the erroneously cited provisions o f law .” It held that the application was incom petent and was accordingly truck out with costs. Since our present matter suffers from the irregularity o f being premised under a non existent provision, I cannot avoid saying that the instant application is incom petent. As already pointed out, because this ground alone is sufficient to dispose o f this application, I find that there is no need to belabour on the rest o f the grounds which have been raised. In conclusion, this application is struck out for being incompetent. Costs to follow the event. (Sgd) Mmilla, B.M Judge 28.4.2009. Date; 28/04/2009 Coram; G. Herbert - Ag. DR For the Applicant; Present. For the Respondent: Present B/c; Priscila. Court; Ruling delivered in presence of both parties. AT ARUSHA. (Sgd) G. Herbert Ag. DISTRICT REGISTRAR 28/ 04/2009 >!<*/ \? W 'x/ /r ' . | I certifgfthajt^his is a true copy of the original. '* \ M /*’ BMM/jn.