20061117 TZCA Zanzibar

•. IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR ZNZ CIVIL APPLICATION NO. 6 OF 2005 ZANZIBAR SHIPPING CORPORATION .................... APPLICANT VERSUS MKUNAZINI GENERAL TRADERS ........................ RESPONDENT (Application for leave to appeal to The Court of Appeal of Tanzania from the Ruling and Order of the High Court of Zanzibar at Vuga) (Kihio, l.) dated the 9 th day of lune, 2004 in Civil Case No. 19 of 2002 RULING 1 & 17 November 2006 NSEKELA, l.A.: The applicant, Zanzibar Shipping Corporation filed a Notice of Motion under Rules 43 (b); 46 (1) and (3) of the Court of Appeal Rules, 1979 (the Rules) seeking, inter a/ia, the following order, that~ "The applicant be granted leave to appeal to this Court against the ruling and the order of the High Court of Zanzibar at Vuga, Zanzibar (l 2 in Civil Case No. 19 of 2002 dated 9th of June, 2004." The Notice of Motion was supported by an affidavit sworn by Godfrey S. Ukwong'a, learned advocate for the applicant. When the application was called on for hearing, I had to first deal with the preliminary objection raised by the respondent, Mkunazini General Traders. The respondent raised two grounds in the preliminary objection - "(a) The Notice of Motion is defective and incompetent for want of format. (b) The Notice of Motion is defective and incompetent for failure to state the grounds of the application." The essence of the grounds of complaint as submitted by Mr. Mbwezeleni, learned advocate for the respondent, was to the effect that the applicant's Notice of Motion did not comply with the mandatory requirements of Form "A" in the First Schedule to the Rules. The applicant did not state the grounds of the application. 3 This omission therefore rendered the Notice of Motion incompetent. On his part, Mr. Ukwong'a at first resisted the application. The learned advocate was of the view that the grounds for the application were to be found in the affidavit in support of the application. However, he conceded that there was an omission to state the grounds in the Notice of Motion but this was not fatal to the application and was curable under Rule 3 (2) (a) of the Rules. In order to appreciate the rival contentions of the learned advocates for the parties, I reproduce in part the applicant's Notice of Motion. It provides - "TAKE NOTICE that on the ....... day of ................ 2005 at 9.00 o'clock or so soon thereafter as he can be heard, counsel for the applicant herein shall move the Court for orders that:- 1. The applicant be granted leave to appeal to this Court against the ruling and the order of the High Court of 4 Zanzibar at Vuga, Zanzibar in Civil Case No. 19 of 2002 dated the 9th of June 2004. 2. And for order that the costs of and incidental to this application abide the result of the said appeal. This application shall be supported by the affidavit of the advocate of the applicant sworn on the 5th day of December, 2005." It is not in dispute that in the instant application no grounds for the application are disclosed in the Notice of Motion. Under the circumstances Mr. Mbwezeleni submitted that the application was incompetent and should be struck out. I am aware that there are decisions of this Court, including Civil Application No. 4 of 1994, Giafar Mohamed Bedar and General Construction Co. Ltd. v Ital African Transporters Ltd. ( unreported) which have held that an application which does not state the grounds is incurably defective. The defect in this application is that the grounds have been omitted and hence the same consequence should follow. Does 5 it make any difference that the grounds are stated in the affidavit in support of the application? Mr. Ukwonga's affidavit reads in part as follows - "2. The applicant herein filed an application in the High Court of Zanzibar seeking for orders that the Court be pleased to extend time to fiie an application for review of the ruling of W. Dourado J. dated the 1st day of July, 2002 and the High Court of Zanzibar denied the applicant the order sought --------- 3. That the applicant having been dissatisfied with the said ruling gave notice of its intention to appeal against the ruling and the order above referred to the Court of Appeal of Tanzania. That to enable the applicant appeal to the Court of Appeal of Tanzania it applied for leave to Court as was required hence the filing of the application for leave to appeal in the said Court. 4. That on the 23 rd day of November, 2005 the said application for leave to appeal to this Court by the applicant was struck out by 6 Kihio, J. for reasons that the intended appeal has no chances of success --- 5. That the decision to deny leave did not abide with the conditions set by this Honourable Court for the High Court to grant leave to appeal. Leave should be granted for matters fit for further consideration by this Court on matters of law of facts and/or both law and facts. 6. That points of both law and facts were availed to the High Court of Zanzibar and were not correctly applied by the judge hence this 2nd application to have the application heard by this Court. 7. That on our part we were not able to file notice because we were assured that notice was filed and besides we were instructed after the 10 days requirement for notice to issue had elapse (sic)" In Civil Application No. 47 of 1996, VIP Engineering and Marketing Ltd. and Said Salim Bakhresa Ltd. (unreported) Samatta, J.A. as he then was, made the following pertinent 7 observations regarding non-compliance with Rule 45. He stated thus- "There can be no rational dispute over the fact that procedural rules are enacted to be complied with. Usually there is a legal principle behind every procedural rule. But those rules differ in importance. Some are vital and go to the root of the matter; these cannot be broken. Others are not of that character and can, therefore, be overlooked provided there is a substantial compliance with the rules read as a whole and provided no prejudice is occasioned. In my judgment Rule 45 belongs to the former class. That Rule makes it mandatory for a notice of motion, save as provided for under sub-rule (3) thereof, to be substantially in the Form A in the First Schedule to the Rules. The Notice of Motion filed in the present application is certainly not substantially in that form because a very vital part of the Form A - grounds of the application was omitted." 8 Notwithstanding this conclusion, His Lordship went on to state that in the application before him, the grounds of the application were disclosed in the affidavit in support. He was of the view that the respondent therein was not prejudiced and so allowed the applicant to amend the Notice of Motion. The applicant herein filed the Notice of Motion on the 6.12.2005 and the respondent filed notice of preliminary objection on the 19.10.2006. The affidavit in support of the application disclosed the grounds of the application, admittedly not in the format prescribed in Form A in the First Schedule to the Rules. In the Bakhresa application referred to above, Samatta, J.A. as he then was observed further that - "While the importance of litigants complying with the rules of procedure cannot be overemphasized, it must not be forgotten that there is danger of consumers of justice losing confidence in the Courts if judicial officers are obsessed more with strict compliance with procedural rules than what the merits of the 9 disputes before them are. To stray into that error is to aid the judicature's grave diggers." Needless to say, the applicant did not comply with Rule 45 (1) and (2) of the Rules in that the grounds of the application have been omitted in the Notice of Motion but were stated in the affidavit in support. The respondent cannot be said that he was not aware of the grounds for the application. He was not in anyway prejudiced by the absence of the grounds in the Notice of Motion. Jn the result, I dismiss the preliminary objection and do hereby grant leave to the applicant to amend the Notice of Motion within ten (10) days from the date hereof by stating the ground or grounds of the application. Each party to bear its own costs. DATED at ZANZIBAR this 17th day of November, 2006. H.R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original.