star media t limited vs gidion william shirima and 3 others 2021 tzhclandd 800 16 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO.500 OF 2021 (Arising from Land Revision No.3 of 2020 in the High Court, Land Division) STAR MEDIA (T) LIMITED................................................... 1st APPLICANT EPHANIA SAMSON RUHANYALA..................................... 2nd APPLICANT VERSUS GIDION WILLIAM SHIRIMA..........................................................................1stRESPON MARGARETH MUKASA............................................................................... 2NDRESPON AKIBA COMMERCIAL BANK LIMITED.......................... 3rd RESPONDENT VIOVENA COMPNAY LIMITED.................................................................... 4thRESPON RULING Date of last Order: 04.11.2021 Date of Ruling 16.11.2021 A.Z Mgeyekwa, J This is an application for setting aside a dismissal order made by this court on 19th July, 2021 in Land Revision No. 03 of 2020. The application is brought under Order XXXIX Rule 19 of the Civil Procedure Code Act, Cap.33 [R.E 2019], The application is supported by an affidavit of 1 Heavenlight Mlinga, learned Advocate and contested by a counter affidavit of Mr. Kephas Simon Mayenje, learned counsel for the 1st respondent. The application was has hit a snag. On 08th October, 2021 the Advocate for the 1st respondent’s lodged two points of preliminary objection against the application as follows:- 1. The Court has been moved under a wrong provision of the law. 2. That the Court has no jurisdiction to ground the prayers of orders sought by the applicants. As the practice of the Court has it, I had to determine the preliminary objections first before going into the merits or demerits of the appeal. That is the practice of the Court founded upon prudence which we could not overlook. Having gone through the court records and parties submissions, I am in position to determine the point of law raised by the learned counsel for the respondent. In determining the preliminary objection I will address the issue whether the preliminary objection is meritorious? When the matter came up for hearing on 04th November, 2021, the applicants had the legal service of Mr. Mlinga, learned Advocate, the 1st respondent enjoyed the legal service of Mr. Nyainga, the 2nd respondent had the legal service of Mr. Thomas Massawe and the 3rd respondent enjoyed the legal service of Mr. David Wasongo, learned counsel. 2 It was the respondent’s Advocate who started to kick the ball rolling. He contended that the application is brought under Order XXXIX Rule 19 of the Civil Procedure Code Cap. 33 to set aside the dismissal order in respect to Land Revision No.03 of 2020 and re-admit the same. He went on to argue that the applicant has cited Order XXXIX Rule 19 of the Civil Procedure Code Cap. 33 while the same is relevant for re-admission of an appeal. Insisting, he stated that appeal and revision are two different things. To support his position he referred this court to the case of Chrisastom H. Lugiko v Ahmrhour Mohamed Ally, Civil Application No. 05 of 2013. He continued to submit that the applicant ought to cite a proper citation of the law instead of using Order XXXIX Rule 19 of the Civil Procedure Code Cap. 33 which applies to readmit appeals. Fortifying his position he cited the case of Wilfred John v Paulo Kazungu, Misc. Civil Application No. 152 of 2019. On the second limb of the objection, Mr. Nyainga contended that the orders prayed by the applicant cannot be granted since this court has no jurisdiction to set aside the Land Revision No.03 of 2020 and readmit it since the provision of Order XXXIX Rule 19 of the Civil Procedure Code 3 Cap. 33 does not confer jurisdiction to this court to set aside the said dismissal order. On the strength of the above submission, the respondent beckoned upon this court to strike out the application with costs. In reply, from the outset the applicant’s Advocate stated that the preliminary objection has no remit. Insisting, Mr. Mlinga contended that this court is moved to determine the application at hand since the cited provision of the law moves this court to grant the applicant’s application for the reason that when the Land Revision was called for hearing the applicants were absent and this court issued an order under Order XXXIX Rule 17 of Civil Procedure Code Cap. 33. It was his continuous that the remedy is available under Order XXXIX Rule 19 of the Civil Procedure Code Cap. 33. He admitted that the order is related to an appeal. He added that section 43 of the Land Disputes Courts Act provides that in exerting revisional power at the appellate jurisdiction which means that the same provision applies in revision. The learned counsel for the applicants continued to submit that there is no any specific section concerning the dismissal of a Land revision thus the remedy is on the cited Order. He blamed the learned counsel for the applicant for failure to site a proper provision of the law which moves this 4 court to set aside the revision. He distinguished the cited Lugiko’s cas where the court stated that a revision cannot be an appeal. On the second limb of the objection, Mr. Mlinga claimed that the 1st respondent’s Advocate is misleading the court by saying that this court has no jurisdiction. Insisting, he submitted that Order XXXIX Rule 19 of Civil Procedure Code Cap. 33 give this court jurisdiction to set aside the dismissal order. In the alternative, Mr. Mlinga submitted that in the eyes of the law this objection does not qualify to be a preliminary objection since the prayers of the applicants are involved. To bolster his submission he cited the case of City Bank Tanzania Limited v TTCL and Others, Civil Application No. 63 of 2003. He added that the same is not a pure point of law as stated in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 In conclusion, he urged this court to dismiss the preliminary objection raised by the 1st respondent’s Advocate and to proceed to determine the application on merit. In his rejoinder, Mr. Nyainga maintained his submission in chief. Stressing, he contended that notwithstanding that the Land Revision was dismissed under Order XXXIX Rule 17 of the Civil Procedure Code 5 Cap.33, it is not a justification for the applicant to invoke Order XXXIX Rule 19 of the Civil Procedure Code Cap.33 to seek this court to set aside the dismissal order. He insisted that of the cited order is related to appeals only. He added that in case the order would have covered revision then the same would have been expressly stated under Order XXXIX Rule 19 of the Civil Procedure Code Cap.33. The learned counsel for the 1st respondent also stressed that the second limb of objection is a pure point of law and touches the applicants' prayers. In conclusion, the learned counsel for the 1st respondent urged this court to strike out the application with costs. Having heard the preliminary objection raised by the respondent that the application is preferred under a wrong citation of the law that is Order XXXIX Rule 19. For ease of reference, I reproduce XXXIX Rule 19 as hereunder:- “19 Where an appeal is dismissed under sub-rule (2), of rule 11 or rule 17 or rule 18, the appellant may apply to the Court for the re­ admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from The Civil Procedure Code [CAP. 33 R.E. 2019] 250 appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it 6 thinks fit. Power to adjourn hearing and direct persons appearing interested to be made respondents 20. Where it appears to the Court at the hearing. ” Applying the above provision of the law, it is clear that the Order cited by the applicants to move this court to readmit the dismissal application is a wrong citation of the law. I fully subscribe to the submission of the learned counsel for the 1st respondent that Order XXXIX Rule 19 is applicable in appeals. Therefore, the cited provision by the applicants’ Advocate is not a proper provision of the law to move this court to determine the application. The learned counsel for the applicants submitted that they cited Order XXXIX Rule 19 since the application was dismissed under Order XXXIX Rule 17. In my view, that cannot be an excuse. When the applicant applies for remedy, he is required to cite a proper citation of the law which will move the court to grant their application not otherwise. Consequences of a wrong citation are a subject that has been widely covered in our jurisprudence, and there are a number of Court of Appeal of Tanzania authorities that abhor the use of a wrong citation. These include Aloyce Mselle v The Consolidated Holding Corporation, Civil Application No. 11 of 2002 (unreported); MIS llabila Industries Ltd. & 2 Others v Tanzania Investment Bank & Another, Civil Application No. 159 of 2004 (unreported), and Naibu Katibu Mkuu (CCM) v Mohamed 7 Ibrahim Versi & Son, Civil Application No. 3 of 2003 (unreported). In Aloyce Mselle, the Court of Appeal of Tanzania held that:- "There is an unbroken chain of authorities of this Court to the effect that wrong citation of a provision of law under which an application is made renders the application incompetent...” See also the cases of NBC v Sadrudin Meghji, Civil Application No. 20 of 1997; Rukwa Autoparts Ltd v Jestina G. Mwakyoma, Civil Application No. 45 of 2000. Citing a wrong provision of the law has the same effect as non-citation of a proper provision of the law. In the case of Mpazi Albert Elia Boaz v the Director of Prevention of Corruption Bureau & Two Others, Civil Application No. 13 of 2013 (unreported), the Court of Appeal of Tanzania held that:- “ Non-citation of the relevant provision of the law from which the Court derives power to hear and determine the application offends the mandatory requirement of rule 48 (1)..” From the above authorities, the undisputed position is that applications that suffer from the malady of the wrong citation are incompetent. To say the least, on account of the wrong citation of the enabling provision which predicates the application, this application has been rendered incompetent. The non-compliance alone suffices to dispose of 8 the application. I find it unnecessary to belabour on the remaining limb of the preliminary objection. In the final result, the application is struck out without costs. Order accordingly. JUDGE 16.11.2021 Ruling delivered on 16th November, 2021 in the presence of Ms. Victoria Gregory, learned counsel for the 1st respondent, Mr. Thomas Massawe, learned counsel for the 2nd respondent also holding brief for Mr. Mlinga, learned counsel for the applicants. In the absence of the 3rd and 4th respondents. JUDGE 16.11.2021 9