Arusha International Conference Centre vs Edwin William Shetto (Civil Application No. 69 of 1998) [1999] TZHC 507 (1 March 1999)

ARUSH A IN I FRNATIONALCONTURFNCF. < I N FK I- 1 FDWIN Will I.AM 111 I I < । A temporary injunction can be issued not only under Order XXVII. a but also under section 95 of the Civil Procedure Code. So these objections are overruled with costs. ----------------------------------------------------- B ARUSHA INTERNATIONAL CONFERENCE CENTRE v. EDWIN WILLIAM SHETTO c COURT OF APPEAL OF TANZANIA AT DARES SALAAM (Lugakingira, J. A.) D CIVIL APPLICATION No. 69 OF 1998 Court of Appeal Rules - Applications - Duty to serve Notice of Motion and E accompanying affidavits - Whether the duty to serve is on the Court Registry or on the applicant - Rules 52(1) and 53(1) of the Tanzania Court of Appeal Rules 1979. Court of Appeal Rules - Notice of Motion-Failure to serve Notice of Motion on p the respondent two clear days before the hearing - Effect thereof The respondent in this matter raised a preliminary objection and prayed for the application to be struck out because the applicant had not served him with the Notice of Motion and accompanying affidavits two clear days before the hearing as required G by rule 52(1) of the Court of Appeal Rules 1979. The applicant argued that because rule 52 does not specify whose duty it was to effect service, the duty was not on the applicant. Held: (i) The duty to serve a Notice of Motion and its accompanying aftidavit(s) is H placed on the applicant; (ii) The purpose of the rule requiring service of notice on the respondent is to ensure a reasonable opportunity to the respondent to consider the application and, if

5 J TANZANIA LAW RITORTS [20001 TLR A- desired, to lodge a reply; otherwise, failure to serve notice in the prescribed time only provides a ground to adjourn the hearing and does not invalidate an application. Objection overruled. U Case referred to: (I) Hasmat All Baig v. Baig and Bull Construction Ltd, CAT (AR) Civil Application Number 9 of 1 994 (unreported) Statutory provisions referred to: (i) Tanzania Court of Appeal Rules 1979, rules 52, 52(1), 53(1), 77, 94, 95(2), 97 and 100 Mr Makange, for the Applicant D Mr Ojare, for the Respondent RULING (Dated 01 March 1999) is LUGAKINGIRA, J.A. : When this application for stay of execution came on for hearing on 18 February 1999 learned counsel for the F respondent, Mr Loomu-Ojare, raised a preliminary objection to the effect that the application was incompetent and prayed that it be struck out with costs for non-compliance by the applicant with rule 52(1) of the Court of Appeal Rules. The rule requires Notice of G Motion and copies of affidavits accompanying same to be served on all necessary parties not less than two clear days before the hearing., Elaborating on the objection, Mr Ojare stated that he was given a copy of the Notice of Motion by the Court Registry but it was not H accompanied by any affidavit. He submitted that the duty to effect service was cast upon the applicant and this the applicant herein had failed to discharge. In reply learned counsel for the Applicant, Mr Makange, observed that rule 52 does not specify who should effect £ service. He submitted that if the Legislature had intended to place that duty on the applicant it could have said so in clear terms and

ARUSHA INTERNATIONAL ( ( >\I I RI ( i CINTRI ■ EDWIN Wil I IAMSHETTO instanced the position in rules 77, 94, 95(2), 97 and 100. He contended, a in the circumstances, that the duty to effect service was upon the court. I am not in the least persuaded that the duty to effect service under the rule is placed on the court. Admittedly, the rule is silent B as observed by Mr Makange but reading the rules as a whole 1 think a necessary implication arises that this duty is placed on the applicant. For instance rule 53(1) requires any person served with a Notice of Motion under rule 52 to serve a copy or copies of his affidavit or c affidavits in reply on the applicant. The rules cannot possibly be more onerous on the respondent and require him to serve his reply on the applicant without, in the first place, requiring the applicant to serve the notice on the respondent. It is therefore irresistible to D infer that the duty lies on the applicant to effect service of the notice under the rule. Even if the duty to effect service were placed upon the court, which I say it is not, that would not affect substance of rule 52 which E is that service should be effected not less than two clear days before the hearing. That brings me to Mr Ojare ’ s contention that the application was incompetent and his prayer to strike it out, I think, with due respect, this misapprehends the purpose of the rule which is to ensure F that the opposite party has reasonable opportunity to consider the application and, if so desired, to lodge a reply. What is of essence in the requirement for service is the time available to the other side between the service and the hearing, and the rule fixes this at not g less than two clear days. As this court had occasion to say in Hasmat AH Baig v. Baig and Butt Construction Ltd. (1), “ If the Notice of Motion is not served on the other side, it only means that it cannot proceed to hearing, but the validity of the motion remains unaffected ” . H And so it is in the instant case; the omission to serve the respondent was only a bar to the hearing of the application on 18 February 1999, providing thereby a ground for an adjournment, but did not take away from the validity of the application.

56 TAVZAV' A LAW REPORTS [2060] TL.R. I therefore over rule the objection and direct that the application will proceed to hearing on a date to be appointed after due compliance with rule 52( 1). B AMINA TARATIBU MBONDE v. SELEMANI AHMEDIMTALIKA c HIGH COURT OF TANZANIA ATMTWARA D (Kaji, J) MISC. CIVIL APPEAL No. 3 OF 1997 (From the decision of the District Court of Mtwara in Probate and Administration E Cause No. 2 of 1996) Islamic Law - Administration of Estates - Deceased professed Islam until he died intestate - Law applicable in distributing his estate. f Islamic Law - Inheritance - Children born out of wedlock - Whether a child born out of wedlock can inherit deceased father s estate. Islamic Law - Administration of Estates - Assessment of the widow s “ thumni ” — Whether the court should take into consideration the extent of the widows G active participation in running the deceased ’ s shop. On 27 December 1992 Amina Said and Kaisi Saidi Kaisi, got married under Islamic rites. Prior to that marriage they had lived together as “ lovers ” and on 8 March 1988, they got their only child named Said Kaisi. On 4 May 1996, Kaisi Saidi Kaisi passed H away intestate at Mtwara. The respondent Selemani Ahmedi Mtalika was appointed administrator of the deceased ’ s estate. With the assistance of the Mtwara District Court together with the advice of the Sheikh wa Mkoa, BAKWATA, Mtwara, the respondent proceeded to distribute the deceased ’ s estate in accordance with the said I advice whereby the son was excluded from inheritance. The appellant the widow, was dissatisfied with the distribution. She, consequently, lodged this appeal.