IN THE COURT OF APPEAL OF TANZANIAAT DAR ESSALAAM

(CORAM: MBAROUK, l.A., MUGASHA, l.A., And MWAMBEGELE, l.A.)

CIVIL APPLICATION NO. 47 OF 2014

ELIAS TIBENDELANA APPLICANT

VERSUS

1. INSPECTOR GENERAL OF POLICE...............• RESPONDENT2. THE ATTORNEY GENERAL. ........•.................• RESPONDENT

(Application for review from the decision of theCourt of Appeal of Tanzania at Dar es Salaam)

(Kileo, Bwana, Oriyo, l.l.A.)

Dated 17th day of April, 2013In

Civil Case No. 89 of 2013

RULING OF THE COURT

10th& 17th October, 2017

MBAROUK, l.A.:

In this application, the applicant, Elias Tibendelana is

seeking for an order of this Court to grant him leave to file

memorandum of review. In his notice of motion, he cited Rule

66(1) (a) and (b) of the Tanzania Court of Appeal Rules, 2009

as the enabling provision to move the Court to grant him his

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prayer. In support of the notice of motion, the affidavit of

EliasTibendelana - the applicant has been appended.

According to the affidavital information sworn by the

applicant, the facts which gave rise to this application can be

gathered in the following paragraphs:-

''2. That, I was the Applicant in Civil Application

No. 89/2013 with which was struck out by this

Hon. Court on 17/2/2014.

3. That, upon struck out of the aforementioned

application the Applicant was not given an

opportunity to be heard as his application was

not heard.

4. That, the struck of the application resulted in the

miscarriage of just since the Applicant complied

with requirement of the Rules.

5. That, the decision of the Court was based on the

manifestation of errors on the face of record as

the application wasproperly filed.,.2

6. That, the struck out of my application was not

properly hence amounts the blatant denial of the

Applicants right to be heard. "

In this application, the applicant appeared in person and

fended for himself. On the other hand, Mr. Pounsiano Lukosi,

the learned Principal State Attorney represented the

respondents.

At the hearing, it transpired that the respondents have

earlier on 9th day of August, 2017 filed a notice of preliminary

objection in terms of Rule 4 (2) (a) and (b) of the Court of

Appeal Rules, 2009 (the Rules) to the following effect, namely

that:-

"1. TheApplication is untenable in law.

2. The Application is bad in law for

containing defective Affidavit. rr

As per the practice of this Court, we had to start disposing

of the preliminary objections first preferred by the

respondents before proceeding to hear the application.,.3

Submitting on the objections, he has raised, the learned

Principal State Attorney submitted that, this is not the first

time the applicant prefer the same application for review to

this Court. He said, earlier on the applicant preferred review in

Civil Application No. 89 of 2013 where the same was struck

out. Mr. Lukosi submitted that, the applicant has now come

again to file review of our decision in Civil Application No. 89

of 2013 in terms of Rule 66 (1) (a) and (b) of the Rules.

However, Mr. Lukosi contended that, the provisions cited to

move the Court are not compatible with the prayer sought.

This is because, he said the contents in his notice of motion

prays for leave to be granted to file memorandum of

review, but the enabling provision to move the Court refers

to Rule 66 (1) (a) and (b) of the Ruleswhich is based on the

powers of this Court to review its judgment or order if (a) the

decision was based on a manifest error on the face of the

record and (b) if a party was wrongly deprived of an

opportunity to be heard. For that reason, the learned Principal

State Attorney urged us to find that, such variance between

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the prayers made in the notice of motion and the enabling

provision to move the Court renders the application not

tenable in law. He therefore prayed for the dismissal of the

application as if lacks legs to stand. He then prayed for costs.

On his part, being a lay person not conversant with legal

issues, it took some time to lead the applicant to a proper

track in line with what was before the Court in connection with

the point of preliminary objection discussed. After assisting

him to understand what was discussed at that juncture, the

applicant told the Court that, in drafting his notice of motion,

he was mis-led by the one who assisted him in drawing the

application. However, he later reluctantly acceded to the first

preliminary objection raised by the respondents.

It is evident that, looking at the notice of motion filed by

the applicant in this application, the prayer made therein

varies with the enabling provisions cited to move the Court. To

be concise, the applicant is seeking the order of this Court to

grant him leave to file memorandum of review, but thefill

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enabling provisions cited to move the Court are not

compatible with the prayers made.

We are increasingly of the view that, such variance

between the prayer sought in the notice of motion and the

enabling provisions cited to move the Court render the

application incompetent. For being incompetent, we are

constrained to strike it out with costs as we hereby do. It is so

ordered.

DATED at DAR ES SALAAM this 13th day of October,

2017.

M.S.MBAROUKJUSTICE OF APPEAL

S. E. MUGASHAJUSTICE OF APPEAL

J. C. M. MWAMBEGELEJUSTICE OF APPEAL

I certify that this is a tr copy of the original.\

'.A. H. M UMI

DEPUTY REGISTRARCOURT OF APPEAL

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