The learned Senior State Attorney Mr. Ngwembe, opposed the application on the grounds
that it is incompetent and that it is frivolous. Contending that the application is incompetent, Mr. Ngwembe, pointed out that the
Notice of Motion states that the application was filed under Rules 45 and 47 of the Court Rules but the specific sub-rules under
which the application was brought were not cited. The error, the learned Senior State Attorney observed, is a fundamental irregularity
which renders the application incompetent. He cited the case of Citibank Tanzania Ltd. versus Tanzania Telecommunications Co. Lt. and 4 Others, Civil Application No. 64 of 2003 (unreported) wherein the Court dismissed revisional proceedings which were brought under an unspecified
provision of Section 4 of the Appellate Jurisdiction Act, 1979.
As for the merits of the application, Mr. Ngwembe contended that the proposed Amendment
at paragraph 1 is similar to paragraph 5 of the Memo of Appeal so in substance there is no amendment which renders the application
frivolous. The learned Senior State Attorney prayed that the application be dismissed with costs because it is frivolous and incompetent
in law.
Although counsel for the applicant orally submitted that the application has been
brought under Rule 104 of the Court Rules which states, inter alia:
g104. The Court may at any time allow amendment of any notice of appeal or notice of cross-appeal or memorandum of appeal, as the case
may be or any other part of the record of appeal on such terms as it thinks fit.h
The said Rule 104 was not cited in the Notice of Motion which clearly states that
the application was brought under Rules 45 and 47 of the Court of Appeal Rules, 1979. It is my considered view that the applicantsf
counselfs attempt to orally amend the Notice of Motion (during his reply to the learned Senior State Attorneyfs submission
that the application is incompetent in law) from the bar cannot cure the fundamental error of not properly and specifically citing
the provisions of Rules 45 and 47 under which the application was brought.
In the case of Citibank versus Tanzania Telecommunications Co. Ltd. and 4 Others cited supra, the Court dealt with a similar problem of not specifying the provision of law under which the application was brought
and observed;
g The central issue then for consideration and determination is whether or not the applicant was justified in moving this Court by
merely citing Section 4 of the Act and Rule 3 of the Court Rules ---. In the case of Abdul Aziz Suleman versus Nyaki Farmers Cooperative Ltd. and Another (1966) E.A 409 the Court of Appeal for East Africa observed that the Rules of the Court of Appeal did not specifically require that
a particular order and rule under which an order sought be stated in the Notice of Motion but that it was the usual practice and
one which should be followed ---.h
The Court further observed;
g--- In all these cases, the Court was emphatic in stating that the applicant was required to cite the relevant provision from which
the Court derives the power to hear and determine the application ---.h
Emphasizing that the practice of citing specific provisions of the law under which the Court derives jurisdiction, the Court stated
furthermore that
g--- The applicant --- did
not go far enough and
mention
the specific subsection that was
applicable. As we have had
occasion to point
out, there are different considerations to be taken
into
account under Section
4 (2) and (3). It ardly
needs to be emphasized that in a notice
of motion,
an applicant must state the specific provision of the
law under which the applicant wants to move the
Court to exercise jurisdiction.h
No specific sub-rules of Rules 45 and 47 of the Court Rules under which the Notice
of Motion was brought were cited so the Notice of Motion is incurably defective just as was the notice of motion in the above Citibank case. Under the circumstances the application is incompetent in law.
Moreover, the application is lacking in merit in that the proposed amendment in paragraph
1 of the Proposed Amended Memorandum of Appeal is substantially the same as paragraph 5 of the Memorandum of Appeal only that the
proposed amended paragraph 1 is more precise and to the point.
For the reasons stated above, the application is both frivolous, and incompetent
in law.
I accordingly dismiss the application with costs.
DATED at DAR ES SALAAM this 24th day of June, 2005.
.RTF of original document