The case concerned an application before the Court of Appeal which, during the proceedings, was found to have a procedural defect as well as a lack of merit.
The important point was not simply whether the applicant had a good case. The Court had to consider what the proper procedural consequence should be where an application is found to be incompetent after the Court has proceeded to hear it on its merits.
The central procedural question was essentially:
What should the Court do where an application is incompetent, but the Court has already proceeded to hear it on its merits?
The Court of Appeal held that where an application has already proceeded to a hearing on the merits, and during that hearing the Court finds that the application is both incompetent and lacking in merit, the proper course is to dismiss the application.
The principle is commonly quoted as:
“In a situation where the application proceeds to a hearing on merit and in such hearing the application is found to be not only incompetent but also lacking in merit, it must be dismissed.
The importance of Ntongwisangu is therefore procedural rather than substantive.
It helps distinguish between:
Striking out — generally appropriate where a matter is incompetent and the Court does not properly proceed to determine it on its merits; and
Dismissal — appropriate where the Court has already heard the matter on its merits and concludes that the application is both incompetent and without merit.
The case has subsequently been relied upon by Tanzanian courts when dealing with the consequences of defective applications. For example, the High Court in Stephano s/o Mashinyeli & 7 Others v Chenge s/o Samson Machenge & 2 Others cited Ntongwisangu for precisely this proposition.
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