Eligi Edward Massawe and 107 others v. A.G and two others (Judicial Review)

 

THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 23 OF 2008

In the Matter of Intended Review

BETWEEN

ELIGI EDWARD MASSAWE &  

107 OTHERS ........................................................ APPLICANTS

AND

THE ATTORNEY GENERAL &

TWO OTHERS   ………………………..……………   RESPONDENTS

(Application for Leave to Amend a Notice of Motion for a Review of the Decision of the Court of Appeal of Tanzania at Dar es Salaam,)

(Munuo, J. A., Msoffe, J. A. And Kaji, J. A.)

dated the  30^th day of May, 2007

in

Civil Appeal No. 86 of 2002

RULING

 24 April & 5 June, 2008

RAMADHANI, C.J.:

The applicants filed a Civil Application No. 75 of 2006 asking this Court to review the decision of this Court in Civil Appeal No 86 of 2002. However, in that application they cited Rule 3 as the enabling provision without specifying the applicable sub-rule. In the present application they are seeking the leave of this Court to cure that defect. The respondents have objected to that application.

The applicants were represented by Mr. David Ntonge, learned counsel, while the Respondents had the services of Mr. Gabriel Malata, learned State Attorney. On 24^th April, 2008, I gave my ruling permitting the Applicants to do the needful but reserved my reasons which I now give.

Mr. Ntonge submitted that there are decisions of this Court which require enabling provisions for any application before the Court to be specific and to indicate the sub-rule and the paragraph, where applicable, relied upon. In the present case, Mr. Ntonge pointed out that the enabling provision has merely been cited as Rule 3 whereas that rule has two sub-rules and that sub-rule (2) has three paragraphs.      

Mr. Malata opposed the application on two grounds: One, he argued that the intended revision was incompetent and that this Court has decided in Leonsi Silayo Ngalai, Civil Application No. 38 of 1996, that leave to amend cannot be granted where an application is incompetent. Two, he submitted that O VI R 17 of the Civil Procedure Act, prohibits such amendment.

I pointed out to Mr. Malata that the issue of the competence of the application for revision is not my baby but it is a matter for the main application; what was before me was an application for leave to amend the Notice of Motion. I then refreshed his memory that the provisions of Civil Procedure Act do not apply to this Court. In spite of that Mr. Malata stuck to his guns.

As the application was not validly objected to, and since Rule 47 (1) provides for applications for leave to amend any document including, as here, a Notice of Motion, as properly pointed out by Mr. Ntonge, I allowed the application to amend the enabling provision to read Rule 3 (2) (a).  

DATED at DAR ES SALAAM this 26^th day of May, 2008.

A.   S. L. RAMADHANI

CHIEF JUSTICE

I certify that this is a true copy of the original.

(S. A. N. WAMBURA)

REGISTRAR

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