simon lema others vs jupiter lekeru siwa 2018 tzhclandd 80 20 april 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 213 OF 2017 SIMON LEMA & 4 OTHERS........................... APPLICANTS VERSUS JUPITER LEKERU SIWA..............................RESPONDENT RULING Date o f last order: 14/3/2018 Date o f Ruling: 20/4/2018 MGONYA, 3. Mr. Madaha learned Advocate brought the Chamber Summons under Section 38 (1) of the Land Disputes Courts Act Cap. 216 [R. E. 2002], Section 14 of the Law of Limitation Act [R. E. 2002] Section 95 of Civil Procedure Code Act Cap, 33 [R. E. 2002], Seeking for leave to Appeal out of time to this Court against the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyama in Land Application No. 223 of 2010. On 14th March, 2018, when the matter came up for mention, Mr. Madaha learned Advocate made a prayer for an amendment of an Application so that he can accommodate a new Law in the Chamber Summons. Since the Respondent was absent, therefore there was no any objection. Now the prayer for an amendment brought by the learned Counsel is indeed obvious after the realization that the instant Application has been brought by irrelevant provisions of law. Suffice to say Mr. Madaha came into attention that the provisions which he cited in the Application are not enabling laws to move the Court for an order sought. Therefore to rescue the matter, the learned was of the view that the best option is to lodge a prayer for an amendment so that he accommodate the new law i.e Section 41 (2) of the Written Laws ( Miscellaneous Amendment) (2) Act, 2016. With transparent conviction, I believe Mr. Madaha learned Counsel is conversant and has to be conversant with the settled law that non citation of the relevant provisions in the Chamber Summons renders the proceeding incompetent. For both propositions our jurisprudence is teeming with unbroken number of chain of authorities. Without any shadow of doubt, if a party cites the wrong provision of the law, the matter becomes incompetent as the court will not have been properly moved. The Highest Court of Land in the case of CHINA HENAN INTERNATIONAL CO-OPERATION GROUP VS. SALVAND K. A. RWEGASIRA, Civil Reference No. 22 of 2005 had the following sentiment to observe:- ".......an error to cite the correct provision is not a technical one but a fundamental matter which goes to the root of the matter." The court went on to say:- n......once the Application is based on wrong legal foundation, it is bound to collapse." In this Application, as I have alluded earlier in this ruling, the Chamber Summons is laid under Section 38(1) of Cap. 216, Section 14 of Cap. 89 and Section 95 of Cap. 33. sought by the learned Counsel since the same has been originated from the wrong legal foundation or incompetent proceeding. All said and done, I hold that in spite of Mr. Madaha's outlandish prayer, he has failed to convince me on the prayer for amendment of the Application which has been brought by wrong provision of law. Consequently, I hereby proceed to struck out the Application as the court has not been properly moved. Since the Respondent has not filed a counter Affidavit and has opted not to enter appearance, I make no order as to costs. It is so ordered. L. E. MGONYA JUDGE 20/4/2017 COURT: Ruling delivered in the absence of both parties and in the presence of Ms. Emmy B/C today 20th Aoril, 2018 chamber No. 18. L. E. MGONYA JUDGE 20/4/2017