| dc.description | ALEX MSAMA MWITA vs. EMMANUEL NASUNZWA KITUNDU & ANOTHER
COURT OF APPEAL OF TANZANIA
AT DAR-ES-SALAAM
(Kihwelo, J.A.)
CIVIL APPLICATION NO.538/17 OF 2020
(Application for extension of time to file revision from the Ruling of the High Court of Tanzania (Land Division) at Dar es Salaam, Mohamed J., dated 7th day of June, 2019, in Misc. Land Application No. 66 of 2019.)
Court of Appeal Rules – Application – Incompetent Application – Failure to serve the Notice of Motion – Whether the failure to serve the notice of motion within 14 days from the date of filing is fatal and the application becomes incompetent.
Court of Appeal Rules – Failure to serve the Notice of Motion – Overriding Objective Principle – Whether the overriding objective principle can be applied in total disregard of the mandatory provisions of the law.
This is an application filed and brought by way of Notice of Motion under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) by the Applicant herein, seeking an order for extension of time within which to lodge an application for revision from the decision of the High Court of Tanzania (Land Division) at Dar es Salaam (Mohamed, J.) dated 07th day of June, 2019 in Misc. Land Application No. 66 of 2019. The applicant is challenging the enforcement of the Deed of Settlement in respect of the property situated at Plot No. 126 Msasani Beach Area, Kinondoni Municipality, Dar es Salaam with Certificate of Title No. 22284. However, when the appeal was due for hearing, the learned counsel for the 2nd Respondent raised a preliminary point of objection notice of which was filed under rule 107 (1) of the Rules to the effect that; “That the notice of motion filed by the applicant be struck out for contravening rule 55(1) of the Tanzania Court of Appeal Rules, 2009 as amended which mandatorily requires the notices of motion to be served within the prescribed period of 14 days thus renders the application incompetent”. That the applicant contravenes rule 55(1) of the Rules, that the notice of motion was filed on 18.12.2020, however, on record, there is no proof of service despite the fact that it was required to be served within fourteen (14) days from the date of filing and that failure to serve the notice of motion is fatal and the application becomes incompetent hence it requires to be struck out. The learned Counsel for the applicant responded that the applicant duly served upon the respondents, however admitted that there was no proof of service and curiously submitted that since the respondents were not served, then they can be served and that will not prejudice the respondents. Learned counsel for the applicant also urged the Court to invoke the overriding objective principle.
Held: (i) The applicant did not comply with the mandatory requirement of the law which requires service of the notice of motion to be done within fourteen (14) days from the date of filing and this omission as the court have pronounced itself in the previous cases, renders the application incompetent.
(ii) The applicant sought to invite this Court to invoke the overriding objective principle and gloss over the omission. It bears reaffirming that, the overriding objective principle cannot be applied blindly in total disregard of the mandatory provisions of the law such as the one in the instant application. In the result, the Court uphold the preliminary objection.
Application is struck out with costs.
Case Laws referred to:
• Enerico Kakala v. Mohamed Mussa (Administrator of Estate of the late Ahmed Zahoro Ahmed) [2017] TLR 71.
• Sadallah I. Sadallah v. SBC Tanzania Limited, Civil Application No. 7 of 2009 (unreported).
• Shirika la Meli la Zanzibar and Another v. Mohamed Hassan Juma and 5 Others, Civil Appeal No.56 of 2006 (unreported).
Statutory provisions referred to:
• Tanzania Court of Appeal Rules, 2009 (the Rules), rule 10, 48(4), 55(1), 66(4), and 107(1).
Mr. Augustine Mathern Kusalika, for the Applicant.
Mr. Samuel Shadrack, for the 1st Respondent.
Mr. Alex Mgongolwa, for the 2nd Respondent. | en_US |
