20090506 TZHC Arusha

IN THE HIGH COURT'OF TANZANIA AT ARUSHA MISC. CIVIL APPLICATION NO. 99 OF 2007 (Originating from (PC) Civil Appeal No.17 of 2004) SAIBOKU PAYAN ... ... APPLICANT· - Versus- ESRAEL NDUMUYA ... . .. RESPONDENT 26th March & 28th April~ 2009 RULING Before Mmilla,. B.M.; This application has been institute,d by Saiboku Payan. I-t has purportedly been brought under the provisions of section 5(1) (e) of the Appellate Jurisdiction Act No 15 of /,,,.,.• 1979 read· together with Rule 43 (b) of the Tanzania Court of Appeal Rules, 1979·. It is seeking for leave to appeal to the Court of Appeal of Tanzania against the decision of this court in (PC) Civil Appeal No 1 17 of 2004 dated 6th I September, 2007" The application is supported by an affidavit sworn by the applicant himself. In paragraph 5 of his affidavit the applicant has raised' two points of law I 1 l which he thinks requrre consideration of the Court of Appeal of Tanzania. The application is being contested by 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 of law are not in fact matters oflaw nut matters• of evidence, there is also raised· a preliminary point oflaw that the application has been brought under wrong provisions of law. I have found it convenient to start with the preliminary point of law in view of the fact that if upheld, it is capable of disposing of the whole appeal'. To begin with, learned, counser Merinyo- has submitted there is. no section 5, (1) (e) in tlie statute book cited by the applicant. Relying on the case· of Ms Ilabila Industries Ltd and: 2· other v .. Tanzania Investment Hank Ltd, €AT, Civil Application No, 15.9., of 2004 (Unreported),. he has asked this . court to strike out the application for being incompetent. 2 It is a fact that although the applicant says he cited section 5 (1) (c) of the Appellate Jurisdiction Act, he in fact cited section 5 (1) (e) of the Appellate Jurisdiction Act which is non existent. It is certain therefore that because the application is based on a wrong and/or non existent provision of law the same is incompetent. The question that follows is; what happens if the court is wrongly moved? The answer to this seems to lay in the decision of the Court of Appeal of Tanzania in, among· . , · others; the case of Ms Ilahila Industries Ltd and 2. other v~. · Tanzania Investment ~ank Ltd which has been cited by learned counsel Merinyo. In that case counsel for the applicant had cited a wrong provision of law which was reflected in the Notice of Motion. Comparing the situation with that which obtained in the case of 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:- 3 "In neither case could the court derive jurisdiction from the erroneously cited provisions of law." It held that the application was- incompetent and was 1 • accordingly truck out with costs. Since our present matter suffers- from the irregularity of being premised under a non, existent provision, I cannot avoid' saying that the instant application is incompetent. , As. already pointed' out, because this ground alone is sufficient to dispose, of this- application,. I find that there is no need to belabour on the- rest of the gi;ound·s which have· been raised. In conclusion,. this application is• struck out for being incompetent. Costs- to follow the event.. (Sgd} Mmilla,. B.M' Judge 23,.4.2009·... 4 \ i 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. ATARUSHA. (Sgd) G. Herbert BMM/jn. 5