IN THE HIGH COURT OF TANZANIA
IN THE DISTRICT REGISTRY AT MWANZA
MISCELLANEOUS CIVIL APPLICATION NO. 152 OF 2019
(Arising from PC Civil Appeal No. 37 of 2018 which originated from Bupandwa Primary Court, Civil Case No. 27 of 2017)
WILFRED JOHN................................................. APPLICANT
VERSUS
PAULO KAZUNGU............................................RESPONDENT
2tfh May■ & 0tfh July, 2020.
TIGANGA,
..........................I must say that the law regarding this matter is well settled. It is to the effect that the wrong citation as well as the non citation of the enabling provisions renders the application incompetent. This has been stated in a number of decided cases when the court was faced with similar circumstances as this one at hand.
For instance in the case of Hussein Mgonja versus The Trustees of the Tanzania Episcopal Conference, Civil Revision No.02 of 2002, CA (unreported), the Court of Appeal when striking out an application on the ground of incompetence stated that;
"If a party cites the wrong provision o f the law, the matter becomes incompetent as the court will not have been properly moved" Also see,Edward Bachwa & Three Others vs The Attorney General & Another, Civil Application No. 128 of 2006.
The applicant herein moved this court by citing Order IX Rule 9, Order XLIII Rule 2 and section 95 of the Civil Procedure Code (supra) as enabling provisions to set aside the dismissal order, however, it is clear and from his own concession that the cited provisions are irrelevant hence amounts to wrong citation.
Although the applicant has urged this court toinvoke the oxygen principle and focus on the substantive part of the matter stating that the wrong citation does not go to the root of the matter, this court, with due respect, does not share the same view. The gravity of the error in citing a wrong enabling provision was stated by the Court of Appeal in the case of China Henan International Co-operation Group versus Salvand K. A. Rwegasira, [2006] TLR 220, where the court held that;
"here the omission in citing the proper provision o f the rule relating to a reference and worse still 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
With the above quoted principle, this court concludes that the wrong citation does go to the root of the matter and since this application has been preferred under the wrong provisions it is therefore based on the wrong legal foundation hence bound to collapse. Having discussed as above, I hold that the first limb of objection regarding the wrong citation of the enabling provision is meritorious and it is therefore sustained.
Since this objection alone suffices to dispose of the application, I hereby do the same by striking it out with costs.
It is so ordered,
DATED at MWANZA this 06th day of July, 2020
Ruling delivered in open chambers in the presence of the parties in the presence of the parties as per coram.
J. C. Tiganga Judge 06/07/2020
