nbc limited vs kalunga company advocates 2006 tzhc 51 18 january 2006

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPLICATION NO.225 OF 2004 NBC LIMITED................................ APPLICANT VERSUS KALUNGA & COMPANY ADVOCATES.... RESPONDENT RULING MANENTO. .TK: The applicants, NBC Ltd. filed a chamber summons under section 5(1) of the Appellate Jurisdiction Act 1979, rules 43(a) of the Tanzania Court of Appeal Rules, 1979 and any other enabling provision of the law, that: 1. Leave be granted to the applicant to appeal to the court of Appeal of Tanzania against the ruling of the High Court (Hon. Mandia, J.) made on the 10th day of September 2004 in favour of the Respondent herein. 2. Costs of the application. On being served with the chamber summons, the respondent filed a notice of preliminary objection on one point of law on period of limitation, but when making the submissions which were in writing, the respondent’s learned counsel, Mr. Mhango raised an issue of none citing of the relevant provision of the law. The first objection was worded as follows: “That the applicant’s application for leave to appeal to the Court of Appeal was filed out of the period of fourteen days prescribed by the law vide rule 43 of the Tanzania Court of Appeal Rules, 1979. In a nut shell, the facts of the application was that a taxing officer had ruled on different items in Miscellaneous Civil Application No.279/2002 against the respondent. Being aggrieved by that ruling the respondent preferred a reference to the High Court. The applicant is now wishing to challenge the ruling of this court, (Mandia, J.) in Civil Reference No.4/2004 which was largely in favour of the respondent. The applicant filed a notice of Appeal which is being challenged even before it is heard on legal points of law. The respondent concedes that leave to appeal to the Court of Appeal on a decision of the High Court is necessary and in doing so, Rule 43(a) of the Court of Appeal Rules applies. That application could be made informally or by chamber summons according to the practice of the High court, within fourteen days of the decision. In the matter before this court, 3 the decision was delivered on 10/9/2994. Therefore, this application for leave should at least have been filed on 24th September, 2004. However, the present application was filed on 19/10/2004 which is over a month from the day the decision was delivered. In both the affidavit of the applicant’s advocate and his submissions, it is contended that it was necessary for the applicant to get a copy of the decision of the High Court in order to properly draft his application and to attach its copy to the chamber summons. The applicants obtained the copy of the ruling on 11th October 2004 having applied for it on 20th September, 2004. They submitted that the time spent in obtaining the copy of the ruling should be excluded in calculating the time within which the application for leave to appeal ought to have been filed as such time was necessary for the applicant to obtain a copy of the ruling. The learned counsel for the applicant relied on the Law of Limitation Act, 1971 Cap.89 (R.E of the Laws) whose section 19(2) of the Act allows the exclusion of the period of time requisite for obtaining the copy of the decree or order appealed from. On the other hand, the respondent relied on Rule 43(a) of the Court of Appeal rules which states that if the application is by way of chamber summons, then it should be in accordance to the practice of the High Court. The practice of the High Court in chamber summons is that one provided for under the Civil Procedure Code, 1966, Order XLIII r2 which requires the chamber summons to be supported by an affidavit. The applicants brought in new ideas to order. XLII rule 2 that it does not cover everything as it does not mention documents to be attached in the application. I am surprised. Those are bare submissions. Order XLIII r.2 mentions a document to be attached, that is an affidavit. For the purpose of the applicant’s application, he would have liked the Order XLIII r 2 to include also a copy of the ruling, order or judgment which is the subject matter of the application. I don’t think that those wishes of the applicant do hold water. I say so because if wishes were horses, every one could ride. Order XLIII r 2 of the Civil Procedure Code, 1966 presupposed that the ruling which is impugned is in the relevant file and so no need for further ruling to be attached. The said Order XLIII r 2 is very flexible in that an aggrieved person could even make an informal application when the decision against which it is desired to appeal is given. When such an informal application is made, then the party whose ruling/judgment has been given in his favour could reply in and there and the court would give its ruling or the application. Therefore, Rule 43(a) of the Court of Appeal Rules, 1979 does not need any support from section 19(2) of the Law of Limitation Act, Cap 89 of the Revised Laws of Tanzania. It is very unfortunate that the Registry office had opened a new file for this application whereas it is a confirmation of the taxation of a bill of cost from Miscellaneous Civil Application No.279/2002, Civil Reference No.4/2004 and now this Misc. Civil Application No.225 of 2004. It is one thing coming in different ways. I hope the Civil Registry will rectify this unprocedural way of filing. Both the learned counsel had endevoured to cite several decided cases in support of this contentions, but I am not persuaded otherwise, other than that under Rule 43(a) of the Court of Appeal Rules, 1979 which is relied upon by the applicant in their application that when the application is made to the High Court, then the procedure to follow in regard to what documents to be attached to the application, Order XLIII r 2 of the Civil Procedure Code, 1966 applies and the only document required is the supporting affidavit. If that is my stand on the issue, then the period of limitation prescribed under Rule 43(a) of the Court of Appeal Rules, 1979 is fourteen days. This application was filed after those fourteen days, almost after a month, and that alone is enough to struck out the application for the reason that it was filed after the period of limitation. In the course of his submissions, the learned counsel for the respondent submitted that the application is incurably defective for the reason of none citing of the proper section of the relevant law. The applicant in his chamber cited section 5(1) of the Appellate Jurisdiction Act, 1979 as the law under which the application is being made. Indeed, section 5(1) has paragraphs (a) (b) (i) (ii) to (ix) and (c). The application does not state under which paragraph it is being made. The counsel for the respondent submitted that court has to be properly moved to confer it with jurisdiction. He further submitted that where no provision is referred or a wrong provision has been quoted which confers jurisdiction upon a court then the application is incompetent. The Court of Appeal decision is relevant on that point, that is Naibu Katibu Mkuu (CCM) v. Mohamed Ibrahim Versi & Sons ZNZ Civil Application No.3/2003 (unreported); Almas Iddie Mwinyi v. National Bank of Commerce and another, Civil App. 88/98 (unreported); where it was said that: It is important that the court must be properly moved to hear and determine the application. The applicant has not cited the provision from which the court derives power to enlarge time to appeal to this Court out of time. This is a basic requirement it is a prerequisite in an application.” The Court of Appeal had gone even further down, requiring a subsection of an enabling section to be cited. That was the case in Civil Application No.64/2003 between Citibank Tanzania Ltd and Tanzania Communication Company Ltd and others, (unreported). Reacting on those submissions, the learned counsel for the applicant submitted that the authorities cited by the respondent are distinguishable in that in many of the said instances, a party did not at all cite a provision as opposed to the present application where the whole provision regulating this application and other application relating to appeal to the Court of Appeal of Tanzania has been cited. He requested this court to ignore the said sleep and overrule the objection. Further that those cases were setting position according to the practice of the Court of Appeal, which is opposed to the practice in the High Court. On this last submission I beg to differ with the learned counsel. I say so because of the established principle of Stare decisis which is sacred principle in our legal system and has to be observed and followed by courts subordinate to the Court of Appeal. Having said so, I cannot ignore or pretend not to see the requirement of citing even a sub rule or subsection of a section of which the applicant would like the Court to act upon. The case of Citibank Tanzania Limited (supra) is there to fortify my reasoning. I think, I needed not cite all the cases cited by the learned counsel for the applicant, because they are of no assistance to him in this ruling. With 8 that in brief, the application is improperly before the court and it is accordingly struck out. A.R. Manento JA.II KIONGOZI 18-1-2996 Coram: Kitusi, DR/HC For the Applicant: Miss Ndikini. For the Respondent - Mr. Mhango advocate. Court: Ruling delivered in court in the presence of Miss Ndikini for the applicant and Mr. Mhango advocate for the respondent. I.P. Kitusi DEPUTY REGISTRAR-HIGH COURT 18/1/2006