20060424 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 124 OF 2005 KALUNGA AND COMPANY ADVOCATES ....................... APPLICANT VERSUS NATIONAL BANK OF COMMERCE LTD ...................... RESPONDENT (Application for leave to appeal to the Court of Appeal of Tanzania from the decision of the High Court of Tanzania at Dar es Salaam) {Mihayo, J.) dated the 10th day of December, 2004 in Civil Reference No. 5 of 2004 6 & 27 April 2006 RULING NSEKELA, J.A.: By a notice of motion filed on the 26.8.2005, the applicant, Kalunga and Company, Advocates, seek under Rules 8 43 (b), 46 (1) and 46 (3) of the Court of Appeal Rules, the following orders, namely that the time within which to file an 9pplication for leave to appeal to this Court be extended and that the applicant be granted leave to appeal to this Court against the decision of Mihayo, J. dated 10.12.2004 in Civil Reference No. 5 of 2005 between the same parties. The appl.ication is supported by an affidavit of Mwezi Mhango, l'earned advocate for the applicant. 2 In order to appreciate the essence of the application, I reproduce in extenso Mr. Mhango's affidavit in support. It reads - "2. In the taxation between client and advocate in Miscellaneous Civil application 278 of 2002 Honourable Lila, the Taxing Officer, rejected certain items in both the bill of costs and the costs of taxation and being aggrieved by that decision the applicant preferred a reference to the High Court Judge, the same havjngc been filed as Civil Reference No. 5 of 2004 3. The matter was argued by way of written submissions on the merits of the application and on the day of delivering the ruling Mihayo, J. struck out the application on the ground that the jurat in the affidavit filed in support of the application was defective in that it did not show the date or the place where the affidavit had been taken---- • J 4. The jurat which Mihayo, J. said was defective reads as follows:- "Sworn by the said LEOPOLD THOMAS KALUNGA before me COMMISSIONER FOR OATHS At Dar-es-Salaam 14.4.2004" and shows that it was sworn before Advocate Chandoo --------- 5. The Honourable Judge had raised the issue of the jurat suo motu and decided! it without inviting Counsel appearing for the parties to argue the point 6. Being aggrieved by the decision of Mihayo, J. as advocate of the applicant I filed a Notice of Appeal and served it on the respondent within the prescribed period 4 7. In addition to what is stated above I further filed an application for leave to appeal to the Court of Appeal which application was heard by Manento, J.K. who on the 26 July, 2005 dismissed it --:-- 8. Manento, J.K. gave as the ground for dismissing the application on the ground that the affidavit sworn by L.T.L. Kalunga in support of the application that should have first shown the place where it was sworn and this should have been foHowed by the date 9. I believe that Manento, J.K.'s rulin9 amounts to the usurpation of the role of the Court of Appeal since it was not for him to decide whether Mihayo, J. had or had not correctly interpreted section 8 of the Notaries Public and Commissioner for Oaths Act (Cap. 12). 10. I further sincerely believe that if Mihayo, J. had asked Counsel representing the parties to argue the propriety or 5 impropriety of the jurat instead of acting suo motu he would not have come to the conclusion he did since the oath was taken at Dar-es-Salaam on 14 April, 2004 11. I believe that the decision of Mihayo, J. that the affidavit of Leopold Thomas Kalunga filed in support of the application for reference was incurably defective in that it did not state in the jurat the date or place where it was taken, requires the intervention of the highest court in the land since to decide whether the jurat was indeed defective, considering its contents as stated in paragraph 4 above, and also whether an affidavit is incurably defective unless it first shows the place where the oath was taken and followed by the date it was taken 12. The point in issue is a serious l'egal problem which I believe only the Court of Appeal can solve so that the lower courts have a precedent which they must follow 6 in respect of what a correct jurat should certain 13. It is further intended to ask the Court of Appeal to look into the question of whether a judge is entitled to raise a legal issue suo motu and proceed to decide the issue without inviting the parties or their Counsel to address the court on the said issue as I believe that deciding without doing so is denial of natural justice." Let me commence with the application to extend time for leave to appeal to this Court. It is evident from paragraph 7 of f•lr. Mhango's affidavit in support of the application, that the application for leave to appeal to this Court was dismissed by the High Court (Manento, J.K.) on the 26.7.2005. Under Rule 43 (b) of the Court of Appeal Rules, another application should have been made to this Court within fourteen (14) days of that refusal. The application was however filed on the 26.8.2005, clearly out of time. Under Rule 8 of the Court of Appeal Rules, the Court has a wide discretion to extend 7 the time even where (as here) the time limited for the filing of leave to appeal has already expired. This discretion, however wide it may be, is a discretion to be exercised judicially having regard to the particular circumstances of each case. The Privy Council in the case of Ratnam Cumarasamy (1965) 1 WLR 8 at page 12, stated as follows in an appeal from the Supreme Court of Malaya - "The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the Hme during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time-table for the conduct of litigation." And in the case of Savin v. Southend Health Authority (1995) 1 WLR 1254, Mann L.J. at page 1259, stated as follows - 8 "The Rules of the Supreme Court are the rules for the conduct of litigation. They are there for the benefit of plaintiffs and the protection of the defendants. Here the rule was not complied with. We are asked to exercise our discretion to waive the application of the rule. There is no material put before us on which we should grant a waiver. I do not see how one can exercise a discretion without material upon which to consider it." I have deliberately reproduced Mr. Mhango's affidavit in order to find out reasons explaining the delay. Manento, J.K. dismissed the application for leave to appeal on the 26.7.2005. After this dismissal, the applicant had fourteen days to file another application in this Court by the 9.8.2005 at the latest. However it was filed on the 26.8.2005, seventeen (17) days later. There is no paragraph in Mr. Mhango's affidavit that seeks to explain the reasons, if any, accounting for the 17 days delay. The learned advocate concentrated on explaining the reasons as to why leave to appeal 1 should be granted. Where there is inaction or delay on the part of the applicant, there ought to be some kind. of explanation or material 9 . ' ' to enable the Court to exercise the discretion given by Rule 8 of the Court of Appeal Rules. This Court has discretion to extend time but such extension, in the words of Rule 8 can only be done if "sufficient reason" has been given. The problem which often arises is what amounts to "sufficient reason". In this instance, the information as disclosed in the affidavit is to the effect that the learned advocate wants to challenge the validity of the High Courts decision in interpreting Section 8 of Cap. 12 and secondly, the propriety of a judge raising an issue suo motu, and making a decision without the parties concerned being heard upon it. In the case of Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia (1992) TLR 182, this Court at page 189 stated as under - "In our view when the point at issue is one aHeging illegality of the decision beingi chaUenged, the Court has a duty, even if itt means extending the time for the purpose, to ascertain the point and, if the alleged illegality i_ • be established, to take appropriate measures to put the matter and there cord straight. 11 I am satisfied that sufficient reason has been shown for the granting of an extension of time to file an application for leave to appeal to this Court. I have taken into account the length of the delay, (17 days) and that there are serious legal points that need consideration by this Court. In the result, I grant the extension and leave as prayed. The appeal should be lodged within fourteen days from the date of this ruling is delivered. Costs will be in the cause. th DATED at DAR ES SALAAM this 24 day of April, 2006. H.R. NSEKELA JUSTICE OF APPEAL - " ! ! ! ~ ~ rtify that this is a true copy of the original. ' KA) RAR