19921218 TZCA Dar es Salaam

t' (COR»1: KIS.l!NGA, J.A. 2 OM1..R 9 J.A.9 l.ndl{NZ.1.Wl'.S2 J.A.) CIVIL .[J>PI;J.l, NO. 33 OF 1992 TDE PRINCIP!J, Sl:;CilETl.RY MINISTRY OF D..:,mW'.ii; fJrn N.t.,T.I ON.L\.L '(ii: SERVICE • • • • • • • ~ .•, JJ'PELL}JJT 0 • • O • • • 1Ji"D Dh,"'VR/)1 P. VlJ.ii.:JBZJ.Ji.. • • .. 0 • 0 t • • RESPONDEf:ifT (h.ppeal from the Ruling, Judgment and Orders of the IZie,i~ Court 'of Tanzania at Dar es Salaam) dated. tLe 13th day of February and. 10th day of }lay, 1991 in ]¥,Co~i_r[; Civil Case No. 210 oi 1932 HULING ICTSJJmA, J .I..• g In Dar es f3alaai,:1 ::~igh Court Civil Ca.se iJo. 210 of 1989 the plaintiff, Messrs. Transpor-'G l!;quipment Ud. (T...:i'L) filed a suit against the defendan:[; t::r, DoP. Yalamblriao 111 answer to the plaint Nr. Vala.mbhia filed a w:,i·cten statement of clefence in wbich he de:.ued the claim and, in addition 3 raised a comrber-claim ~ s t T.i.:lJ. TEL did not file a :ceply to ·0he written statement of d.e;fence, nor a, written statement of de.fe,..ce to the coun-te.r-cla.im. llurthermore, on the date fixed fo:c heari:.1g, the plaintiff's side could not addv.ce evidence in support of i"cs case ei th.er. Whereupon the iligb. Court , ' (Rubama, J.) upon application by Hr. Valambhia's Col.ll1Sel 2 gave judg.em.ent for Er, Vala;;1bb.ia, dismissing the plai;.1tiff 1s eta.in\. and allowing tl1e defei1dalri; 1 s counte~laim, In allowing lilr. 1/aJ.aJ!lbW.a's counte:D-claim against :i1:8'1, ~ ·the 1 earned judge also ordered the Govem-nent of Tanzania ·co pa;y to i1Iro Valai-nbhia and his ,;family, ce.rta.i.ri monies owil1.g f'roui the Government of Tanzania, to TEL.. The .... /2 r 2 monies to be thus paid to i,.Ir,. Valaf:lb!ria were pa.rt of the proceeds· of a contract between tlle said Govern'Tlent of Tanzania and TEL. The Government waS further ordered to pay t.:iese raonies to Mr. VaJ.ambhia's designated overseaS ba}.1.k account. Upon application by Hr .. Valambhia for execution of the judgementj the High Cou1-rt (Ifaumi 1 Jo) granted a gamishee order requiring, inter alia~ the Govern.'1lent of Tanzania to pay the sum of approximately US Dollars 39,823,543.i25 to E;:-. Valai11bhia' s overseaS ba.nlc accou.11:'lio Upon further application by Mro VaJ.ambbia t~ High Court (RubarJa, J .) ordered the Principal Secretary, luni.stry of Defence and llational Service to comply with the garnishee order 'Within three weeks.. That is to say, the H.i.gh Court ordered the Principal Secreta.r2r to conply with tl1e garnishee order which, inter alia, required ·t~1e Goverrui1ent to pay the svm of appronmately US Pollars 39,823,543 .. 25 to Er., Valambhia 1 s overseaS bank account, and that he should ef:i:'ect such pay.nent within ·three weeks of the orw- It is fror.1 that order that this appeal now arises. At the hearing of the appeal the appellant, the Principal Secretary, Ministry of' :Oefe;1ce and National Service~ wa.s represented by Mr .. F. l-Ire;11a, Director, Civil and International '.Department in the Atfor:.1ey-General I s Chambers aSsisted by l,1r. s, 3alula, State A%o:cne,y. hr. Ho lVIaira and Hr. m. Ma.ra.ndo, lea.med. advocates, appea,j.•ed for tb.e respondent, Nr., Valam.bhia. Cclu,psel for the respondent took a prelim:i.na,17 objection to the appeal which objec•tion is based on non-oampliance with rules 76, 77 and 83 of the Cotu~~ ''ot Appeal Rules. Ex. :Maira subnitted "-,, in effect thai the appeal ~ran thae barred in that it was not insti·l;uted wi. tbl.n 60 c.la,y:3 of the date of tl1e notice of appeal as required by rul~ 8.3 (1) of the Rules. In order to appreciate fully 3 this su.1::rnission by Counsel, it is .necessary to give a brief account of the background to -~his mattcro The ruling being appealed from WaS delivered on 10.5.91. The notice of appeal wa.S given in time on 17.5.91, and the letter to the Registrar applying for a copy of the proceedings was also sent in time on 11~5.91. However, copies of the said notice of appeal ax1d of that said letter to the Registral' wer-e not sent to the respondent, and a:f~er the prescribed time for serving these documents on him had expired, the respondent applied to a single juc',ge of this Court ·lio strike out the a,ppellal'lt I s notice of appeal on the grOWlds of f ailu.t'e to serve O-OPi~ of thc,se two documents 1 • on !11.ffi• In a counter-application, however 9 tl.J.e appel\ant aSked for e:::tension of tirae in 01.·c.l.cr to serve the said docunents on the respond.ant. The single judge allowed the applicaJcion to strike out the notice of appeali and rejected the counte.1),,laJ)plication for ert-eaaioo of tirae., Upo!l a reference frorn the decision of the single judge, however, ·clle notice of appeal was restored and the appellant waS granted. ez-~c:nsion of tir.10 during 1·ib.ich.. to. serve the docum.ents on the respondent, which he did. According to Er. Eaira, the appellant so ta2, ~ only ~ and obtained ez'.;eDSion of time to serve on the 1.'eSpond.ent; a copy o£ the notice of appeq]... No erlension of time has been obtained or sought by the a,ppellan·l; to serve the .rospondent with a copy of iUJ.o letter to t}1e Registrar applying for a copy of the proceedings. In thosa oircun~ta.nces therefore, Counsel contended that al though the R~istrar did issue a certifica;te in tenns of rule 83 ( 1) of the Rules, that cer"Gificate was is sued in error, folld t.Jl& appellant was not entitled to rely on the p.ro'Vi.SQ thereto ' ' _. ~·~~--;,.. I\ 4 to e..--::clude the tiDe wJ-:. icll was necessary for tl1e preparation and Si.l,pply of a copy of the proceedings to him. If tho Registrar's certificate is e;;:cludoclJ Counsel went on, tho institution of the a.ppeal is 1,ong time ba:.:-red because it was noJc instituted within 60 d.a.ys of the date of -~::e notice of appeal, and the appellant has not taken the necessary steps to avail himseJ,.f of the protection under t~e prov:i...so to rule 83 (1). Mr. Mrema's reply -co this submission was twofold. First, he subnittod that there was no fixed period within which he was bound. to serve the responw.mt with a copy of the letter to the Registrar. Contrasting ·thi~ position with tha;'c under rul.e 77 -0f tb.e Rules whereby -;;l1.e appellant is required -/;o serve the respondent ,ri th a copy of the notice of appeal within seven daJrS of the date of the notice of appeal, the lea.med Counsel suh:ui tted that there is no coopa.rable rule reqUi..:r,ing the appc,llant to serve a copy of the let·~er to t:1e &gietrar on the :cespond.ent within specified tin1eo In his view, the tine to serve the .respondent with this docv...-:i.ent was open tind he could serve it on hir.i at any time. In the alternative Hr. Hrema contended that if ~ere was a7J3' f'ue.d time for such service, then he did apply for extension of such time and that bis application, though rejected, by the single judge of this 001.,1..rt, was granted by the full -Court upon a .rei'.erence from the decision of the single judge. In response to t:10 first liDb of Hr. Hrc,-aa' s sub:lission, • I.1r. l'•laira subl,,i tted t .::a--c upon construction of rule 83 ( 2) of the Rules, a copy of t~ie letter to the Registrar applyi11g for copy o:f' proceedings HL:st be served on the respondent within :f) days of' the date of tb.c decision. being. appealed froo.,. The , . "i...... , , ' 5 relevant part of Rule 83 of tli.G Court of Appeal Rules proVi.des that:- 11 83 - ( 1 ), Sv.bjcct to the provisions of . Rule 122, 2n appeal sh~l be instiJ.;uted by lodging in the appropriate registry, within si:idy days of ·bi-i.0 date when tl1e no'ilica ot appeal was lodged - (a) a :,10Dorandum of appeal, in qt.1ia"cuplicate ~ · (b) tlle xecord of appeal, in ~1tuplicate j (c) the prescribed fee; and (d) secwity for tb.e cost·s of tl:.e a~:,poal, aa.ve tl1at il.:GI'e an n.pplication fox a copy of tb.e proceedings in the High Court l1as been rn.a.d.e wi t!1in -bhi rly d,aya of the da:~e of t!1e decision against w:1ich it is desired to appeal, -~here:: sllall ~ in coraputing the time within wl1ich t:1e appeal is to be inGtituted be excluded ;::iuch tir,1G as :nay be certified by the Registrar of the lligh Cour~ as having been rc;quired for t!1e preparation and. deliver.y of that copy of t~1e appellant. ( 2) An 2,ppcllant s!iall not be cmti'Ued to rely on tI1e c::ception to sub-ntle ( f) unless his eJ?plication for the copy wa,a\~n writing c:nd a cop,y- of it was sent to t:i~)1, respondent" i · • _j We J,,;hinlc that Mr. Iiircwa 1 s View is untenablG when he $.qJ'S th't:l.t there is no speci:fied period. withfa which to sGrvc. the .t'e.Elp<)Odent with a copy of the lGtter -lio -~:lG licgistrar. To uphold t.!lis subnission would i,lake it difficul·~ 01· irapossible to detera:i.11e ~.u.en a respondent to an intended n.ppeal can seek rer.10dy a.gll,ins.t the appellant f'or non-complia;.1ce with t.t1is req_ui.l·ement. Indeed it ~ might render this reqt1i:.:Gr.m11t ac.aningless in so far as Ji;he respo.."1.d.ent is concer,1ed. :Tor insta11cG 9 ..ri:01·e tho respondent seeks to have tho no·~ico of appeal struck out for foilure by the a.ppell~.t to insti•liuto t:10 appeal wi tl1in 6o cloys ¢f the date of the no-tico of. appeal, tb.e a.pPQJ.lant--ca;n .. a,1.w.a,yis get..·fJJil83 with it ••••/6 6 by se,ying that he l1as no-i; reoei VGd. a copy of the p:.:'occ,edings from the Registrar cwen th01.:.gh t:1e lGtter to the Registrar applying ., for such procoodings he;:, not been sent to tlie respondent, and he could go on l'ely:i.n.B' on such a defence inclefini•~ely. In our jj view, that cannot have been the ain of ·the proviso to rule 83 ( 1). There tiust be a time limit within ·which t!1e a,p~la.nt is to serve the respondent with a copy of tho letter to the Registrar. We think that the period of 30 days within which -~l2e appellant is .required under rule 83 ( 1) to apply to t!1e Registrar for a copy of the proooodings sl1oulcL be oonstru.ed to be oo--e:ct.ensive with the pc.riod within which the appellant has to smd a copy of that lGtter to the responde?It. Ci.'b.at serves to ascertain the period after which tho respa:i,dcmt to aJJ. intended appeal can apply to have the notice of appeal st.ruck out for failure to the notice of' appeal, a.id tlle appdlnnt can raise -t..he dc;fence tha:'i; he received tl10 copy of p.r(lceedings from -~l1e Registrar late, or that ho ~1as not yd rqcGi vE.d such proceedings, only if he, had sent to t:io 1.·espond.cni. a oopy of his letter to the Rcgist1'1J.I' applying Lor -~l10sc proceedings, c1).1d that a copy of dGC~l1 being appealecl fron. l!aving said tt~at J i·c is n<accssary to point out here, however, that r-:ro Eaira. Cc1).mot 1)1, right when he subnitted that the &lgistrar issued to -~::E: prcS<11t appellant the oo.rtifica.te under J;U-1~ 83 ( 1) in error 'bcc~se tlrn appolleJ.1Ji; b.ad not_ served tl1e res-pendent wit!.1 a copy of t1iG lotter to tl:e Hegistra.:r::. It is u.ndi.sputGd that the appellant's application to the Regist.ra.r waS made '\<l. tllin 30 O.aJ'S o:i:' ·c.!..te i;w,te of tlle decision bein&' appealed frtM as r0q1:!.i:ced by rule 83 ( 1) • Therefore 5 the lkgist.rar was perfodly e:nti tled. to issue ·the. -certificate as ••••/7 1 7 he did, and we could. :cii1.cl nothing wrong with ,i;l1at. The issue whether or not the appellant can rely on the certificate, as he was trying to do in t:us ca.so, is qui tc a different matter.. As .1·\ I alilply de..1onstrated above that issue depends on whctl1er a copy of the • appellant's letter to the Registrar applying for a copy of the proceedings was sent to tlw rosponde:.nt within 30 days of the date of the d€cision being appealed from. In a,nswe:,.r to Hr. Mr•c;;1n, 1 s al tcn1.ative submission that the t application for ~:tonsion of timo to serve the doeu:1ent in question on the .respondent was be:forc the sing;le jud$e and t ..hat it was pa.rt of tl.J.e subject oatter of the reference fI'pm the single judge to t1:;.e fL:.11 Court, Mr. Iiiaira s-trongly contended that such applica:bion uas :.1citl:..er before the si;.1gle j\.1.lige nor before tho full Cour'0. The record shows t::..at tlie ;natter wa::; brought. bo:&.re the single judge in Civil f..IJi)lication No,. ,8 of 1991 by a notice of motion the relevant pa,.tt of which rcadsg- 1 '1WTIC:8 OF MOTION (Under RvJ. c 8 t1,ncl 77 ( i) of the Tanza.11ia .Coutt; of Appeal Rules 1979) TA.ICE NC'I1ICE tlli1t on thGoeouo•<>•o6o ♦ •·· tl&Y of••••••• 1991 at 9 .oo 0 1 Qlock in the morning or soon thcrcaftc:' as lie can be heard the Applican't 'W111 oovc the cou.rt tor an order that an i;;:,i;e11sion 9f tine 1:ic cra1rccd to enable the inJ.;~ Appellant servo copicc of the. Notice of Appeal on th~ Respondent~ This Ap1Jlication will be supported by the .Affid.avi"t o:Z ::.:'clix c. Mrema swom on the 28-tll day of Hay, 1991 "• In tl1e accompanying a:ffid.avit of liir 0 !frc;a1a. it is disclosed in par~.ra.Phs 5 and 6 t.J.aJi; t.l:2.e a.pJ>elwt '-s. Counscl ha,d. :instructed ••••/8 8 his junior sta,tf to sGrvG copies of t~1c notico of appGal cind of the application for a Ol:;Jj?y of proco"'dings ii1 t::is :·.1atter on the respondent tl1rougll llis advooe.tes, but t:1at such instructions were neve:c carl.'"i.ed out.. .And in paragraph 9 th'"' deponent says 1- 11 9. T;UT I p7!-0J' in "vll.c intc~st of Justi~ that this applica:~ion for an .E:;:-'GGnsion of time to serve tlla Rospond"n.~ with a. copy of the Notico of Appeal 2.nd. a copy of the .A.pplica,tio:c. for a Ccrtifiud Copy of the ordGr, Ruling and Proceedings in ib.e High Court Civil Case lJoo 210 of 1989 'be grantc(\11., ,. Mr. llaira. contended t:1at there was no applica:tio.n fo..r ..txtension of f t:L11e to serve th0 rospond.cmt with a copy of the l~tte:t to the Registra.r bccauso t:1G notice of :.:.10tion makes no 1Gfc:o:mce to such application i it rders Oi.1ly to the application fo.r ~sion of t:L.1.e to serve tho l'.'Gspondcmt with a copy of thG 11.biicc of appeal. Concedi.1.g that l\lr. liircrna I s aif'idavi t Dakes i JG plain that the appellant was applying for c:ctonsion of time to ~~rve a copy of the that that was iramaterial. In his view, the rGlicf sought must be set out in the notico of' r:iotion, whilo the ~:,?idavi t merely provides the cvidcmcc ii1 ,Jupport of the appliQa.t~Ol1. TbJµI, he eoncJ.udcd, since tl1c. npplication for m..-tol-i.si,m of ·'ci@o fO serve copy of the ldter to t:10 RGgistrar on tl1.e re~po.."1don-t was not set out or avcrr0d in t110 notice of □ otio11 1 such appli.ca:tion was not before the single juc-;gc in Civil Applicatio;1 lfo, 18 of 1991, and therefore, any rc:forc:100 frm;-i the d<;.cisj,011 qt tl1c single judge -f;o tb.e .full Court in. t.:Us a:p_pliostio11 cannot Jra.vo il1V'OlVc.d. t.b.a:t ,· 9 We agree wi tl.1. ib:. Haira t:1at a notice of motion should nalce refereucG to tl1e relief w~~ich it is propos0cl_ to ask the Court to g.:r 8,at. Mr., lilrema' s notice of motion in Civil Application No. 18 of 1991 complied wi•bll this re.quiror:lont only as regards the application for c.rlonsion of tirile to serve the respondent with a copy of -thG notice of 2ppoal. It doGs so by citing rules 8 and 77 (1) of Jche Rules a..'1.d by meir!iioning specifically thG rcliGf wlrlcb. it is propose;.d ·co apply for. Acloittcdly, howovcr, this was not qui to t;.1G case as regards the copy of ·che lGtter to the Registrar.. The notice of :-.iotion ci tGs rule, 8 which relates to crlan.sion of tiLlC bu_·;;. wi t~10ut indicating t11.e pu.rpose. tor 1-1hich ! extension of tine, would bG sougb.t4 The CJ:l).cshon now i,s w'.;1ethar I \ this omission was fr,:cal.. Ih'o Haira strenuously contended that ·.it was fat al notwi tllsta,11di:.1g that t;.1.c acconpanying ar.Hdavi t nade iJli clear tl1at the .appellant was .scoking that relief~ Mr,. Maira, h01-reve..r did 11ot rc.:l:'Gr ..:s to ~ r author:i. -ty for tlri.s prop6si tion. \ We tbink that in a si-CL1.2,tion like this ono it wovJ.d not 'be right to look at Gi tllcr t.l.le ;10tico of ,:10-cion or the accompan,ying af1idavi t in isolation. 1~ notico of i!lotion a;,ic1. ·lihe accorapanying ! afi'idavit arG in tho ve,ry nature o1 things co,,1plemcntary to each other~ and it would be wrong 3l1d indeed unroalistic to loqk at thorn in isolationo 'I'.'.,.c propel' thi~ to do is to look at bot,b. of thera and if on the basis of that it is clear wb1t relief is being sought tl1en t.'.lo Cov.rt. ab.ould p110ceed to consider .and. raised by the opposi iG paz-ty j With that approa.cll ii1 Liind then it we..s ope,n to tlie ~ l e judge in tl:e present case to do ci thcr of tl1e two tl1ings g- lie might .have required t~lG appellant to ai,":le,nd t:1c notice of raotion so a.s to include refcre,;2ce to t!:.e proposed .relief, i..eo €.Xt-0.nsion of •liime. to SGI'Vc t~10 rc.s"90ndcnt 1-,i th. a oopy of tl:..c letter -to the. ...../10 10 Registrar$ and thereby bring i"'G in line with "ii!.,.e contents of paragraphs 5, 6 and 9 of t.::ie accompanying a.i.-"fidavH alludGd to earliGr. vfo should ac:l..d. t11at if the respondent I s Counsel had noticed this inconsistency bdwc;en the notice of notion and the accompa.izy-ing affidavit, he had a duty as an officer of the Court to point it out so -til1at '.;:10 Court might require the appcl.lant to affect th.G desired a;:1<,md:1ont. Alternatively the judge cotud consider t!1e notice of motion and tb.e accompanying a.ff'idavi t, in t~1e light of any opposition by the other party, and proceed to determine the applicat~on. We think that this is e:;::actly what t:1e lcamed single. judge did, and we hold that view io:r tl10 following rcasonsg- First, upon reading through the no·i:iicc of motion. together wit!.1 l)aragraphs 5, 6 and 9 of the acconpai-iying affidavit above cited, one can be le~ in no doubt wl1a:csoei/'€r that the appellant was seeldng extension of tine: to sei-ve tt.e respondent wit.1.1 not only a copy o:f the notice of appeal :J ..lt also with a copy of the letter to t!.:e Registrar applying· Zor a copy of proccGdings. For, tlic notice of motion cites rule 8 oi t:1e Rules, which deals with ro..'"t.,nsion of tine fixod for t.'.:c cloi:1g of va.rious -things under the Rules, and t~lG affidavit spc,cifically requGsts for extension of ti.rJG to serve on thG rospo:.1dc:.1t a copy of t11G lctte.:r: to the Registrar. The two documents r02,cJ. togc,t~1a oalco it abundantly clear what relief the appollant wes seeking. 8coondlys in gr2,nti:..1g t.::..c respondent I s application to strike out tho appellant t D i10tico of appeal 9 th6 learned single judge specifically rcfcrrccl. to ·i;~iG appellant I s applic&,:Gion for extension of time to serve on the respondent a copy of -bl1e letter to the judge .raads :- ··• • • ./ 11 . ' . .• ·• 11 "Mr. V8 1ambhia seeks to have the notice of appeal lodged by JV"tr. Kejo struck out on the ground that 11,1::. Kejo has failed to take some essential steps in the ,..,_ proceedings i,e, that he has not served a copy of the notice of appeal and a copy of the letter applying for a copy of the record of the proceedings in the High · Gou.rt on him. And in Civil applicatio11 · No, 18 of 1991, filed on 29/5/91, Mr, Kejo, through, the Attorney General, admits \ that he has so failed. Eut Mr, Mrema, ~ Principal state Attorney in the Attornet General's Chambers, contends on his beh~lf that the failure is excusable and applie'3, under Rule 8 of tho C.ourt of Appeal Rules,I 1979, for extension of time to effect th1 \ service, which application is strongly \ . \ opposed by 1".Ir. Va 18 mbhia • 11 • I Mr. M.reroa\ added. that in his oral address before the kingle judge he also mad~~clear that he was seeking extension of lime to serve \ \ the res po~ t with a copy of the lettGr to the Regisjr8>:, and h,e above this is borr\~ by the l.Garned single judge when in extract taken yom his Ruling he said:- \ I I 11 Eut \l'1r. M.rcma, a Principal State A~torney \ in tl~ttorney Gcner0l I s Ohambcrs conta ds on his behalf that the fa ilurc _; is exc abk and applies, under rule 8 of the ourt of Appoal Rules, 1979 for extcnsi* of time to affect the se.rvioo 1 which D lication is strongly opposed by M,r. V )..ambhia • n • ' '-\ In t'he oasc of ,Q_song~ and Another v. R. 1972 ~.A. 170 a notice of \ ~ ' . I I tras filed in t\e Court of Appeal for Eastern Africa for cnctienaion of time to r'~la notice of appcrnl. :Before this was heard, . an application for the ~"f relief was made in th<, High Court but was d ism.isS<Jd. L:iko ill flif. own set up tod3y both the High Court I '.1.. and tho than Court of Ap -a~ ha.d concurrent jurisdiction over the l mat-ter but the a1)plicant , u1 go to the High Court first. When the motion came up for he ri~g in the Court of Appeal the question was whethc,r ~ication was incompetent because it had been filed there bgf -the npplica-t.ion t-o -the -H..iJh. Gou.rt. The Cour-t ..held ~ .......... • ••• ,'12 f \ \ \ 12 "We think that 8 motion is Dn oral ·8pplication and therefore thcJt it is made at the time when the applicont addresses the Court or judge, not when the notice of motion is filed. 11 • That deciSion can be t:lkcn to support the' view -tha-t_Mr-~_11rc.ma•s oral nddrcss took c8rc of the inadequncy Ul8t was in his notice Af · motion by referring specifically to the r eliof oei,lg. s.o-ught...- -oth.erw:Lse the d c~ision is Gq_ually consistent with, the broader view we haTC: I• taken that both the notice of motion anq the acgompanying- affidavj_t \ •': have to be -'aken together in considori.rle' .and -~te.rminins the I appl:Lcation. In the light of all this thor0 orc, we 1an find mo mcrtt in 7 Mr. Maira ts contcmtion that the oppcl).antts application for I I extension of time to serve the rospohdent with a copy of the l.etter '' to the .Registrar was never before the s~le judge• Thc plca9ings and the Ruling thereon make it plo in tha~ that application v(/Js } boforG tho .single judge who spGoi.fically·-considc.rcd it but ,tej-cctod it. I I ·. _f ,, Equally devoid ~r merit is' Mr. Ma:µ.-a 1 s asscrtio~ that .. ' ': likewise tho matter was never before tho full Court whi.Qh ' .f'ons.idc.rc d tho reference from the single judge. Indeed ln u.rg ix\g I I that point Mr. Maira had strol)gly I rnDintainod that al"t,µo1.li$h tho i' fuJ.l Court g.ranted the exknsion of time-to serve th~ ~epondent I with a oopy of tbe k ttor to ~hG Registrar, there was no request /;.' ./ for such relief and that that· ull Court simply Went. 9ut of its way .;~/ to g:ant a roliof th8 t was nc er asked for, The Jeat:nad Counsel J ~~- i .cla-imad that what wcs done here was akin to what ,r3s done by the · ~;/ .' /.,.,...,•_.I High tourt and strongly criticised by this Court in the case of //,;.- · \The Attorney General v. W. K. Butambala_,.Q.r.imi~1 Appeal. .. No-.37 . _, r _/ I~~ . ·•i, ·, •.• 1.991 (unreported). :/ . /,f J ,, .·''/ ,/ .--. ••/13 ,/ 1,r. / (I 13 .. can There_t hordly be any su'Dstonce in Mr. Mairais allegations, '.l'h1cr f-ollow:u::ig extract wb.i.cb. is falmn. from tho Ruling of tho fuil Court upon reference from the single judge would serve to put the matter beyond all doubt:- "This is a reference a):'ising from tbe ruling of a single judge of this Court granting an application to strike out a notice of appeal for failure to take essential steps in the proceedings 7 and at the same time refusing a counter application for extension of ~ime .,; to take such essential steps. ..t ..:.·· ,,,!"·· '.f It was common ground that the Principal Secretary Ministry of ]cfence and National Service, failed to serve on Mr. n. P. vaiambhia a copy of hi~ notice of ap::;>eal and a cop":{ of· ' . J:·~. . - . hi& applioation to tbc Registrar, High~~ ·.----~:--·: for copy of proceedings in res~-ct of' ~n • intended a 11prnl ago inst tl1e "ruling of the' High Court requiring him to com1)ly with ' a garnishee order of that Court within three wacks. 11 • .And after considering the merits of the application the Court allowed the reference in the following terms:- 11In the result the reference is a llowecl. The notice of appeal is restored, and the Principal Secretary Ministry of ]ei~nce and National Service is to serve the opposite party with copies of the documents in question within four d 8 ys of his recc ipt of this ruling•". It seems clear from these quotations that tha full c.ourt upon a refGrence from the single judge dealt with, inter alia, ·the ~ t i - a application £or axtenaion of time to serve the respondent with a copy of thG letter to the RegistrQr and, ..ovGrtu.rning the sinelc judge, duly grankd it. Mr. Mai.rats cla:un that this Court, upon a rBfcrence from the single judge granted the appellant an cxtGnaion of time gratuitously was gravoq misconceived and wholly unjustified.. Ji•or, to say thG least, Mr. VJ.rerna having been ags-riovod by the decision of the single ••••.• /14 '/ 14 full Court to rove rsc the .rcfusol · of his applicotion by the single jud 6 e c1nd to proceed to grant him extension of timo to serve on the respondent not only a copy of the notice of appeal but c1lso a copy of the letter to the Re3istrar. I.h other words, knowing that he was spGcifi'cally beinG' charged with failure to seltve the two documents on the respondent, ·_it is µ1conceivable that he would have asked the full Court for extension of time to serve on tho respondent only one docwnent and not both of them. His request for extension of time wc1s in respect of ~oth documents, and the full Court granted tho request accordingly. \ .._.) To sum Ul) on this point, therefore, we are satisfied that the appellc1nt ts 8pplicotion for extcmsion of time to serve the respondent with a copy of the lettor to the Registrar applyine for a copy of the procccdincs wos both before the sing lo judge and also before the full Court upon tho reference from the def'ision of the s ingk judce. The other ground of the prelimirnry object ion, also based on rule 83 (1), turned on non-payment of Court fees and security for costs of the appeal by the appellant. It was conceded that been ·. nono of these payments hm.1.t 1;1.odc 9 o nc1 so Mr. Maira cha1 ged 1 that there: wos no excuse or justificotion for such non-payment. He stated thot the Government wcis cxomptod Crom payin::; Court foos in specific situations. For instance, wider rule 10 of the Court Fees Rules 1964 G.Hs~ 308 and 411 the Governm(mt is exempted from payinc; Court fees in Civil and criminal matters in tho lower Courts, while under rule 112 (b) of the Court of Appeal Rules the Government is expressly exempted from ~ayiJ:18 l l I Court fee:.s in respect of any crimim:il application or cr:i.mina-1 r ! a:ppca 1 in- the. .. Cou:ct---0±:_ Appsal..._ -Tb.Q-oour-t.,-o.f....A.ppea.J...J;lules , .... ·... I 1s 4- . 15 however, aro silent on thG payment of Court feGs by the Government in civil matte.rs. Nr. Maira strongly submitted that tho necessary conclusion to be drawn is th.at the Government is not exempted from paying court fees or security for costs in civil matters in tho Court of .Appeal. And since the GoveJ:.'rlment has not mada these payments, and ~s not applied ' for extGnsion of time to do so, then the appeal~ in terms I ) \ of ruJ.e. .. 84 (a) deemed to be withdrawn. \ \ \ I As stated earlier, it wos conceded for the a,p?(lllant that \ no payment of fees or SGcurity for costs had been ~de. Mr. Mrema conceded .further that he was unable to cite arry leg~l provision which exempted. the Government from such payments. ~e should add that we too have not succeodcd to find one so far. 13ut i-ir. Mrema ; contended that thero has been established in this country I a long i tradition now whGraby the Government has ~ot been reauired to pay court foGs or security for costs in s:uch matters. in tb4 Court of Appeal. This, l1(? so id, was in keeping with :the \ practice in some Co:r:nnonwealth jurisdictions includ~ England,. \ whereby the Government is exer:ipted from such payments,, He oonoluded by soyine in effect tl1r.lt if there was non-o6mplianoe by the Gove.rnmcmt bcrG, this necessarily resulted f!!anl the lo~ practice of not rcrquiring the Government to make such payment. In the circumstances, he went on, it would be unjust te- penalize the Government on this oocaaion for following an established px:a.otice which for a long time hos never been questioned, As noted before, rule 10 of the Court Fees Rules 1964 G. Na. 308 and 411 exempts the Government from paying oow::t fees in l;>oth criminal and civil matters in the lower courts, while under rule 112 {b) of the Court of Appeal Rules the Govurnmen:t. ia .o~rc s s ~ d - - - i J ! . ~ co~a.a--ui. ·er iminal • •·• •• /16 16 appl':Lcations and criminal appeals, but nothinz is said about paymcht of fees in civil matters. We are unable to construe such silence to mean exemption from payment of fees in civil matters. Since the framers of the Rules obviously had in mind the issue of exemption, and indeed expressly granted exenption in c.r:i.min6tl mat tars• then if they were so minded they would have equally granted exemption in civil matters. we aro · inclined to agree with M.r. Maira that such silence can only be cbnstrued to mean that the framers of the Rules intended that the ··Government should pay- court fees in civil ccisas. LikGwise the Government is obliged to pay security for costs as we could find :no basis for express or implied 0xemption. It is true that this view is not in harmony with the total exemption which the Government enjoys in the lower Courts, but for reasons eiven above we could not construe rule 112 (b) of the Court of Appeal Rules to come to any different conclusion. I.f the omission to grant total exemption was really not intended, then it is sqg50stcd that the ai)rropriate authority misht consider amending rule 112 (b) of the Court of Appeal B.ul.Gs to hElrmonize the :position with tl1at of total ax,m:1ption accorded to the Gove~nment in the low.er Courts. We have given due considerotion to Mr. Mroma1a submission that to throw out the appeal on this ground would aI:1ount to penaliz.itlg tl1e GovernI:1ent ·on this occDsion for having followed a practice which for a lon,~· time has never been questioned. It could very well be that the lkgist:y ata£.t: oonoe.?.'¥18d i.lit'he.t consciously or t~ough inadw~noe £.ailod to requir<a the G ~ to -pay court fees and security for costs in the past .• It may also be tl1at this practice l1as gone on for a lons time. . .. •4., f:"-' l ----·--~-~- n, • '· 17 legal le3itimacy however long it rai:::;ht be. Indeed if there was nothing else to this r.i.otter we would h8ve .:J-,en inclined to uphold the preliminary objection on this ground, but there ore other matters to be considored along side with this omission. We shall come back to this point later on but m<:rnntime we ,Proposo ½deal with the.respondent 1 s last ground of objection. This ground was argued on behalf of the respondent by the learned advocatG, Mr. Jvlarondo. He pointed out that grounds 5 to 8 of tho monorandu.,,-;i. of sppG/Jl relata to appeal ocainst the judgoncmt in the main suit i.e. Civil Case N0 • 210 (If 1989. He contended that to tb.ot extent tl1is appeal is incompetent l -1 bo'f':ause the appGllant hos not given 2,ny notice of ap_:pcal in respect thereof and hc1s not sent any copy of such notice to the respondent as required by rules 76 and 77 9 respectively, of the Rules.. Pressine the IJOint further, he chai:e-ed that thi:1 appellant has not aven bothered to seek oxtcmsioµ of time to :toke these steps.. On thesG grounds Counsel subm;i.tted that tke app<wl c1s -t,ontc:1inGd in grounds 5 to 8 ralatil'lg to tha Ga~ suit sbould be struck out as bainz incompetent. our own viGw of thG J:JDttcr is that the order of 10.5 .91 which is the subject mnttor of this op~eai is so closely int€rwcv.en wit.fl. --tri.c judgement in the oain suit that. it would be unre.o.l;La-tic to consider the ~ropriety or otherwise of the said order in isolation. In other words one cannot effectively question tt1G order without ref0rence to the judgement in the main suit froa which thot order springs. In practical terms the said ordGr is an a1,1plification of the relief e-ranted to Mr.. ~ h i . a in t,he main suit. It is-.,. ..i:Lyou_wi.sh., a culmi;coi<ion ····••l18 ·• .. 18 of the relief er:mted in the rnc:iin suit. So that a notice of 8ppeal c1gainst the order of 10.5.91 by necessary inplication means that the decision in tho ;;iain suit, in so far as it extends to tho order, is nlso beinrr challeneGd. Therefore, in our view it was not strictly necessary to 5ive a separate notice in respect of the main suit. As intimoted earlier, we now revert to the natters which have. to be considered alonrr side with the omission by tl1e Government to pay court fees and security for costs in tl1is intended appecJl. Glanci.nc throuc:;h the memor,mdur.1 of appeal and upon hearine Hr. Mrema in answer to this prel~ry objection, it becomes evident tbat the r:ioin 5.rievance of the oppellant is that he was not Given the opportunity to be heard against the .::;arnishee .ord'e:L". l!Et was condemned unheard. That, Mr. Hreraa s~bmitted,, offended against the principle of natural justice. Mr. Mrema submitted furthe.r that had the ap_riellant been affordGd the opportunity of beincs heard 9 he or his Counsel would hove raised the issue of the illeGality of tho proceediD::'S leading to thG grant ins of the gcJrnishce order in thnt thGy violated the provisions of the Government Procecdines Act 1967 which lays down the procodurG of brin[;inc; suits a~air.ist tho Govornmmt. Under tho same Ii.ct ho would have challew~ed the legality of the e;arnishec order as 8 method of executing court dccreas ag~.iust thu GOVG.tlIJllCnt~ He would also have QUestioned the validity of thG order of 10.5e91 rcquirinc the a~pellont t~ coraply with the carnishoe order within tl1rcG weeks whi.ch. .complianCQ: would be in violation of Jij)Cchans·e Control Ree;ulations. While avoidin:i; tb.G risk of (3'oine into the merits of the ••••• /19 19 They arc such thot ii' proved they co to the root of tho ;-:1otto.r • For inafoncs, they allege illcc;ality of the order or or-ders of the Court. That is obviously a point of law. ---·· ----- In Civil J.cfcre:noe ... No. 9 of 1991 inv'.)lv:i.ng the saI;1c partiGs c:is in thiG case, we took the view that where the point of law at issue ls the illecality or othGrwise of the decision beine challenged, that is a point of law of sufficient importance to cotlStitute sufficient reason within rule 8 of the Court of Appeal Rules to overlook fi:" non-ooupliance with the req_uirouents of the Rules and to enlarc;e the t:i.oe for such conrJliance. The sar.1e appliGs he.re• So that oltuo~~ we would have uphold the preliui.nacy objoction on tho erounds of failure by tho Govcrnnont to p~y court fe~s and security far- coats in this appeal, the.re OUeht to bcr afforded opportunity for the Court to nscertain on the issues .raised and, if the allegations arc established, toke approJ?riate ueasu.res~ In the result the preliui.nary objection ;l.s overruled. It is further directed that the Govcrru.·i:1cnt is to iJDY the requisite Court fees and security for costs within 7 dnys of the receipt of this Ruling by thc parties. Althouzh the scueJ:al rule is that in civil cases he who wins has his oosts, ,ire think ,; t A. M. fl. OM..illl JUS TJ td OF lu'P~h~ N. S. MNZAVil.S