IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(MWANZA SUB-REGISTRY)
AT MWANZA
MISC. CIVIL APPLICATION NO. 67 OF 2023
BETWEEN
MARLICEY MASESA...………….…………………………... APPLICANT
AND
SIMEO SHIJA IDUKA…………..……………………1st RESPONDENT
STANLEY SHIJA JAGI………....…………………….2nd RESPONDENT
RULING
Last Order 18/07/2023.
Ruling 14/08/2023.
KS. KAMANA, J.
At the instance of the counsel for the defendants, who was only engaged in drafting, a couple of preliminary objections have been raised, challenging the competence of the application preferred against the defendants. These objections were raised under a notice of objection in which the defendants contend as follows:
That, the applicant’s application is incurably defective in law for being contain the prayers in affidavit.
That, the applicant’s application is incompetent in law because chamber summons has not accompanied by affidavit as required by the law.
That, the applicant’s application is defective in law for not locating case number of the primary court which the appeal arose from.
That, the applicant’s application is defective in law for being omnibus (more than one prayer).
When the matter came up for hearing it was agreed by both parties that hearing of the matter will be by way of written submissions. The scheduling order was issued by the Court on 18/07/2023 where the respondents were ordered to file written submissions in support of PO not later than 25/07/2023, the applicant was ordered to file his reply on PO not later than 02/08/2023 and rejoinder if any to be filed not later than 07/08/2023.
While the respondents have acted accordingly with Court’s order the applicant has failed to file her reply in respect of the PO as raised by the respondents. Provisions under VIII Rule 14 (2) of the Civil Procedure provide that, if no WSD is filed, the Court may proceed exparte. The fact that the applicant has slept on his right to defend in respect of PO this Court has no other choice than to proceed to determine the PO exparte.
Coming back to the submissions by the respondents in support of the PO, while submitting on the first point, counsel for the respondents stated that the application is incurably defective for containing prayers in the affidavit. He referred to paragraph 6 of the supporting affidavit through which the applicant has prayed for orders in chamber summons. He holds the view that such prayers violate rules and principles regarding affidavits. He cited the decisions in the case of Mustapha Raphael vs East Gold Mines Ltd, Civil Application No. 40 of 1998 and Uganda vs Commissioner of Prisons Exparte Matovu [1966] EZ 514.
Regarding the second ground of appeal which faults the application for failure to accompany the affidavit as required under the law. He argues that chamber summons does not indicate the name of the Court as required by the law. To support his contention, he cited the decisions in the case of James Sendama vs Republic, Criminal Appeal No. 279 of 2023 CAT Tabora (Unreported).
On the third ground, counsel contended that the applicant’s failure to cite the case number of the trial court in the application renders the application origination anonymous. He added that such failure contradicts the mandatory provisions of Section 5(2) of the Appellate Jurisdiction Act R.E 2019.
Regarding the fourth ground of the PO counsel for the respondents submitted that Section 47 (1) of the Land Disputes Settlement Act which was cited by the applicant in his application does not apply in the proceedings originating from the Primary Courts. He referred this Court in the decision of Hessein Mgonja vs The Trustees of the Tanzania Episcopal Conference, Civil Revision No. 2 of 2002 CAT (Unreported).
On the fifth ground, counsel contended that the application is incurably defective for containing omnibus prayers. His averments on this ground are that the application is intending to move the court to grant leave to appeal to the Court of Appeal and at the same time it intends to move the court to grant a certificate on point of law. To him, such prayers cannot be sought on the same application. To bolster his averments, he referred this court to the decisions in the case of Ali Chamani vs Karagwe District Council, Civil Application No. 411 of 2017 (Unreported) and Rutagantina C.L vs The Advocates Committee & Others, Civil Application No. 98 of 2010 CAT at Dar es salaam (Unreported).
In the end, he prayed this Court to dismiss this application with the costs of the case.
After a careful review of the preliminary points of objection and submissions by counsel for the defendants, the profound question which requires the attention of this Court is whether the raised points by the defendants carry some significance warranting this court’s intervention in dismissing the application as prayed. In disposing of this PO, I choose to confine my arguments on the fourth limb of the PO. It is the arguments by the counsel for the defendants in respect of the 4th limb of objection that the application is incurably defective for containing omnibus prayers.
I find it apt to quote the reasoning of this Court in Gibson Petro v. Veneranda Bachunya, HC-Civil Revision No. 10 of 2018 (MZA, unreported). It was held at pp. 7 and 8 as follows:
‘Let me start by setting the record straight, that the law is quite settled and clear in our legal system, that combination of several prayers in one application is not an abhorrent practice, especially where the prayers, as both counsel unanimously ]agree, are related and they can be dealt with through the same provisions of the law or by the same piece of legislation. This position was enunciated in Tanzania Knitwear Ltd v. Shamshu Esmail [1989] TLR 48. The principle was cemented in MIC Tanzania (supra). The rationale for this is, as correctly submitted by the counsel for the applicant, to tame needless multiplicity of applications which are time consuming and resource guzzlers.
However, where an application contains two or more prayers which are diametrically opposed to each other; and/or where the governing provisions of the law are different, time frames for applications are different; and where considerations to be taken into account in determining them are different, such application is said to be omnibus and, therefore, incompetent.’
It was previously stated, in the decision of Mohamed Salmini vs Jumanne Omary Mapesa, Civil Appeal No. 103 of 2014 CAT (Unreported) thus:
‘as it is, the application is omnibus for combining two or more unrelated applications. As this Court has held for time(s) without number, an omnibus application renders the application incompetent and is liable to be struct out’.
From the above quotation, it is clear that a combination of the applications is, subject to the conditions set out in the cited decision, an allowable good practice unless they are unrelated.
The question then is whether the instant application is a fit case in which such a combination is not abhorrent.
As stated earlier on, the application has two substantive prayers one intending to move this court to grant leave and certification on point of law to be determined by the Court of Appeal. Court of Appeal in the decision of Mathew Mlay vs Rashid Majid Kasenga, Civil Application No. 354/17 of 2020 CAT (Unreported) had this to say on the combination of applications for leave and certificate on point of law in a single application:
‘In order to ward off misconceptions, we wish to seize this opportunity to reiterate the position of law regarding applications for leave and for a certificate on point of law. the law does not permit the riding of these two horses simultaneously as some parties tend to do’ (Emphasis Added).
based on the above decision, combining the application for leave to appeal and certificate on point of law is bad in law as they are not interrelated nor interconnected in the sense that they serve different purposes. In view of that, I join hands with the arguments by the learned counsel for the respondents and hold that the application is bad for constituting omnibus prayers prohibited under the law.
as a result, the application is hereby struck out. Based on the circumstances of this case I order each party to bear its own costs.
Order accordingly.
DATED at MWANZA this 14th day of August, 2023.
KS KMANA.
JUDGE
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