TANZANIA ELECTRIC SUPPLY CO. LTD...APPLICANT/J.DEBTOR INTEREBEST INVESTMENT CO. LIMITED.RESPONDENT/D. HOLDER

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1 IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 68 OF 2000 TANZANIA ELECTRIC SUPPLY CO. LTD....APPLICANT/J.DEBTOR VERSUS INTEREBEST INVESTMENT CO. LIMITED.RESPONDENT/D. HOLDER RULING KALEGEYA, J.: The Respondent has raised a preliminary objection to the following effect that the application was done with wrong citation of the law hence the Court was improperly moved by invoking the inherent powers of the Court when there is a specific provision of the law in the Civil Procedure Code. Maira & Company Advocates, represent the Respondent while the Applicant is represented by Mr. Kisusi, Advocate. It was submitted by the Respondent that it was a misdirection on the part of the Applicants to have relied on s.95 of the Civil Procedure Code which simply provides: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, instead of citing O.XX1, Rule 57(1) CPC, a specific provision catering for the situation. They urged that S. 95 CPC comes into play where there is no

2 specific provision of the law catering for a particular situation, making reference to Jooma and Jaffer v. Bhambra (1967) EA at 326. On consequences of failure to cite the relevant provision or citing a wrong provision of the law, making reference to (CA) Citibank Tanzania Limited vs Tanzania Telecommunications Co. Ltd and others, Civil Application No. 64 of 2003 and (CA) Naibu Katibu Mkuu (CCM) vs. Mohamed Ibrahim Versi and Sons, Civil Application No. 3 of 2003, they submitted that it tantamounts to not having moved the Court and the application becomes incompetent. On their part, the Applicants branded the preliminary objection as misconceived, urging that S. 95 CPC is a proper section to be invoked in the circumstances, making reference to Sarkar s Law of Civil Procedure, 8th Edition; Mulla on the Code of Civil Procedure, 15th Edn, Vol. 1; Narshidas M. Mehta & Co. Ltd. v. Baron Verhegen (1956) 2 TLR 300 (Tanganyika Law Reports, Revised Edition). They distinguished Jooma and Jaffer Bhambra Case (supra) as in there a specific provision of the law existed and there was no abuse of the process of the Court as is the case here. Similary, they distinguished the Citibank and Naibu Katibu Mkuu (CCM) cases because there is no failure to cite the relevant provision of the law or failure to cite any provision. Elaborating further, the Applicants insisted that O.XX1, Rule 57 CPC can only be invoked by objector who is not a party to a suit while Applicant was a Co-Defendant and at the sametime that S.38 CPC is inapplicable because though relating to same parties, the expression is limited to parties opposed to each other thus excluding Co-Defendants. In rejoinder, with respect, the Respondent s Counsel decided to employ an escapist exit employed in academic or political circles as he insisted, it is not our duty to point out under what specific section, Order and/or rule these particular orders ought to have been obtained. We submit by citing section 95 the court has not been properly moved. All we are saying is that the application is incompetent. 2

3 For the last Respondent s submission, with respect, I should say, it is unfortunate. In his capacity as an Advocate, then an officer of the court and lastly, an opponent of what the other party has presented, the Respondent is aptly required to point out what the law is and this, in the circumstances, includes disclosing the provision of the law applicable. The above said, let us turn to the merits. The Applicant s prayers in the chamber summons and which sparked on the preliminary objections are as follows: (i) The garnishee order absolute given on the 26th day of January, 2007 by which the Branch Manager of Tower Branch of CRDB Bank Limited, Dar es Salaam was ordered to deduct from A/C No.0J with said Bank the sum of Tshs. 300,060, being the decretal sum and further sum of 5,000/= being court Commission and pay those sums to the Registrar of this Honourable Court, be raised. (ii) The Applications for execution filed by the Respondent/Judgment Debtor on 13th day of September, 2006 and the two subsequent application for execution also filed by the Respondent co-judgment debtor be dismissed, and/or on 25th January, 2007 and 7th February, 2007 one referring to A/C No. 01J with the Tower Branch of CRDB Bank LTD and the other referring to numerous motor vehicles belonging to the applicant co- judgment debtor should be dismissed, and/or that attachment should not be issued and if issued it should be raised. It is agreed that parties were involved in the trial of the suit giving raise to the present application although subsequently, in the appeal that followed, the Applicant was excluded. It is also agreed that the decree sought to be executed against Applicant has that suit as its source. Now, generally, indeed O.XX1, Rule 57 and S. 38 of the Civil Procedure Code cater for situations where there are objections regarding execution. As rightly submitted by the Applicant however, while the former Order caters for third parties/objectors (not parties to the suit in which the decree emanates) the latter applies to parties in the suit but who should have been opposed to each other. The Applicant and Respondent were not opposed to each other as they were co-defendants. 3

4 In a situation like this one, I am persuaded that S. 95 CPC which prescribes the inherent power of the court and acts as a saving provision where no other fitting provision is available, should be put into play as employed by the Applicant. I am alive to the applicability of the inherent powers of the Court- the court has no inherent power to do that which is prohibited by the Code; that however in many cases, where the circumstances require it, the Court has acted upon the assumption of the possession of an inherent power to act ex debito justitios and to do that real and substantial justice for the administration for which alone it exists (Mulla supra, Pg. 921); that it is only where there is no clear provision in the Civil Procedure Code that inherent jurisdiction can be involved; that in exercise of those inherent powers, the court cannot override general principles of the law and inherent jurisdiction gives only a power of procedure and is dependent upon facts of each case. Now, having concluded that the code is silent on procedure to be employed on the facts of this particular case, having discounted the applicability of O.XX1, Rule 57 and S. 38 of the Civil Procedure Code it stands without question that a fall-back position is S. 95 CPC. It is no wonder that the Respondent s Counsel simply hide under the cover of technical escapism already referred to by vehemently arguing that they are not duty bound to point out the relevant provision of the law. It is not that they are not bound but it is because they know the existence of none in the Code. In the circumstances, indeed the Jooma, Citibank and Naibu Katibu Mkuu cases relied upon by the Respondent are inapplicable. For reasons discussed, I am satisfied that the application is rightly before the court. The preliminary objection stands dismissed. L. B. KALEGEYA JUDGE WORDS: 1,239 4

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