IN THE HIGH COURT OF TANZANIA

(MWANZA DISTRICT REGISTRY)

AT MWANZA

MISC. LAND APPLICATION NO. 66 OF 2019

JOHN MARCO.............................................. APPLICANT

VERSUS
SEIF JOSHUA MALIMBE........................... RESPONDENT

RULING

23rd April, & 20th May, 2020

ISMAIL, J.

This is a ruling on a preliminary objection, taken at the instance of

the respondent, to the effect that the application that is pending before me

is defective on the grounds:

1. That the Court is improperly moved for citing wrong provision o f

the law;
2. That the applicant's affidavit is fatally defective for containing
argument; and
3. That the title o f the Misc. application itselfis confusing.

The pending application has twin substantive prayers seeking to

extend time within which the applicant can file an application for extension

of time for certification on a point of law. It also seeks to move the Court
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to certify that there is a point of law to be taken to the Court of Appeal, by

way of appeal. The intended appeal seeks to challenge the decision of the

Court in Land Appeal No. 80 of 2018 in which the respondent emerged a

victor. The Court quashed and set aside the decision of the District Land

and Housing Tribunal for Geita and the Ward Tribunal for Nyehunge in

Geita.

When the matter came up for hearing on 23rd April, 2020, I guided

that the preliminary objections be argued by way of written submission.

This order was well received and duly complied with by the parties. Kicking

off the discussion was the respondent who enjoyed the able services of Ms.

Prisila Pancras, learned counsel.

With respect to the first ground, the respondent's contention is

twofold. In the first, the contention is that the applicant has applied a dead

law in that, the provisions of Rule 45 (a) of the Court of Appeal Rules, 2009

(Rules) are no longer in existence, following amendment of the Rules

effected through the Tanzanian Court of Appeal (Amendments) Rules, GN.

No. 362 of 2017, which were gazetted and came into force on 22nd

September, 2017. She contended that these amendments effectively

extinguished Rule 45 (a) cited by the applicant as the enabling provision.

The second limb of the first ground is that, whereas the cited provision
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relates to application for leave to appeal to the Court of Appeal and the

manner in which it may be preferred, the instant application is for

extension of time to apply for a certification on a point of law and for the

certification itself. The respondent's contention is that the provision would

still be irrelevant even before the amendments. Cautioning on the use of

the principle of overriding objective, the learned counsel made reference to

the case of Mohamed Chambuso & 2 Others v. Saidi Mwinyimkuu,

Misc. Civil Application No. 189 of 2019 (unreported) in which it was

(presumably) held that the overriding objective cannot be used to abrogate

the mandatory provisions of the law. Sadly, a copy of the said decision was

not attached to the submission.

In respect of the 2nd ground of objection, the learned counsel argued

that the affidavit sworn in support of the application is violative of Order

XIX Rule 3 (1) and (2) of the Civil Procedure Code, Cap. 33 R.E. 2002

(CPC). The contention is that the said affidavit is argumentative instead of

stating facts that the applicant is able to prove on his own. The

respondent's counsel has singled out paragraphs 3, 4 and 5 as the

offending portion of the affidavit. She contended that the severity of the

violation cannot be mitigated by the principle of overriding objective.

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 The respondent's contention in the third ground is also twofold. The

first relates to the applicant's failure to indicate the origin of the case. The

respondent alleges that such failure has brought a confusion on where

exactly the case came from. On the second, the respondent's counsel

decries what he contends as the applicant's act of preferring proceedings

against the respondent's personal capacity while it is clear that the

proceedings emanate from a matter in which the respondent featured as

an administrator of the estate of the late Jushua Malimbe. Citing Order XXX

Rule 1 of the CPC, the respondent held the view that this was a fatal

omission that deserves nothing short of a dismissal.

The applicant's submission was extremely brief. He simply argued

that preparation of the application was done by a counsel he had engaged

to draw it, and he believed that it was well written, consistent with what

the law provides. Holding the view that the respondent's contention is

devoid of merit, he prayed that the objections be rejected out of hand,

with costs.

From these rival submissions, the questions that await resolution is

whether this Court has been properly moved and, whether the application

is competent.
As stated above, the respondent has taken exception to the applicant's

choice of the provision under which the application has been preferred. He

firmly contends that the provision cited as an enabler of the instant

application has not properly moved the Court to grant the prayers sought.

The applicant sees nothing wrong with the cited provision. After all, the

application has been prepared by a legal practitioner. Let me emphasize

that the law in this Country is quite settled in this respect. It is to the effect

that non-citation or wrong citation of the enabling provisions of the law

renders the application incompetent. This position has been stated in

countless decisions of this Court and the Court of Appeal of Tanzania.

These include: Robert Leskar v. Shibesh Abebe, CAT-Civil Application

No. 4 of 2006; Hussein Mgonja v. The Trustees of the Tanzania

Episcopal Conference, CAT-Civil Revision No. 2 of 2002 (AR); Anthony

Tesha v. Anita Tesha, CAT-Civil Appeal No. 10 of 2003; Fabian

Akonaay v. Matias Dawite, CAT-Civil Application No. 11 of 2003;

Aioyce Mseiie v. The N.B.C. Consolidated Holding Corporation, Civil

Application No. 11 of 2002 (all unreported); and China Henan

International Cooperation Group v. Saivand K.A. Rwegasira [2006]

TLR 220.

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 In Robert Leskar v. Shibesh Abebe (supra) the learned superior

Bench made the following observation:

"It is equally settled law that non citation o f the relevant

provisions in the notice o f motion renders the proceeding
incompetent"

The reasoning in the quoted passage followed in the footsteps of the

decision in Hussein Mgonja v. T.E.C. (supra) wherein the application was

struck out on the ground of incompetence for "failure to move the Court

properly". The superior Court held as follows:

"If a party cites the wrong provision o f the law the matter
becomes incompetent as the Court will not have been
properly moved".

The most captivating position in this respect was accentuated by the

full bench of the Court of Appeal in China Henan v. Sa/vand K.A.

Rwegasira (supra), in which held that such failure constitutes "a

fundamental matter which goes to the root o f the matter....... Once the

application is based on wrong legal foundation; it is bound to collapse".

Underscoring that the error is far worse than a mere technical error, the

learned Bench held:

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 "... worse still the error in citing a wrong and inapplicable
rule in support o f the application is not in our view, a
technicality falling within the scope and purview o f Article
107A (2) (e) o f the Constitution. It is a matter which goes to
the very root o f the matter
While there may not be any qualms about whether or not the

application was drawn by a legal practitioner of whatever competency or

repute, what is clear is that Rule 45 (a) of the Court of Appeal Rules, 2009

(Rules) chosen by the legal practitioner is utterly irrelevant and constitutes

a wrong citation. A glance at the Rules reveals that the cited Rule 45 (a)

neither caters for extension of time nor does it provide for certification on a

point of law. For ease of reference I find it apposite to reproduce the said

provision as hereunder:

"45. In civil matters-

where an appeal lies with leave o f the High Court, application

for leave may be made informally, when the decision against
which, it is desired to appeal is given, or by chamber
summons according to the practice o f the High Court, within
fourteen days o f the decision."

This provision of the law has undergone some amendments vide

Amendment Rules, 2017 (supra), but the most notable is the increment in
time within which leave may be applied. Time set out for an application for
leave is now thirty days and not fourteen days as it was prior to the
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amendment. Clearly, this is not a provision under which an application for
extension of time or for certification can be preferred. It is exclusively for
applications for leave to appeal to the Court of Appeal, and there can
hardly be any dispute that the instant application has nothing to do with
leave to appeal. It follows that the instant application has been preferred
under a wrong provision of the law and, therefore, incompetent. The
profound error in the choice of the enabling provision is fundamental and
going to the very root of the matter. In view thereof, this application
deserves no better treatment than that stated in the cited decisions. It is
simply that the Court has not been properly moved and the incompetent
application is liable to striking out.

Consequently, I hold that the objection on wrong citation of the

enabling provision is meritorious and I sustain it. Accordingly, on this

ground alone, I strike out the application with costs. Given the decisive

importance of this ground, I refrain from discussing the rest of the

objections.

It is so ordered.

DATED at MWANZA this 26th day of May, 2020.

J sr * k
M.K. ISMAIL
JUDGE

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Date: 26/05/2020
Coram: Hon. J. M. Karayemaha, DR
Applicant: Present
Respondent: Ms. Prisila Pancras, Advocate
B/C: B. France

Ms. Prisila:
The matter is set for ruling. I am ready to receive it.
Applicant:
I am ready for the ruling.

Court:
Ruling delivered under my hand and Seal of the Court, this 26th May,
2020 in the presence of both parties.

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