20060713 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MROSO, l.A., NSEKELA, l.A. AND KAJI, J.A.) CIVIL APPLICATION NO. 108 OF 2004 RENATUS AMBROSE HAULE ••••••••••.•••••••••••••••••••••• APPLICANT VERSUS TANZANIA RAILWAYS CORPORATION & PSRC. ■ •••••••• ■ ••••••••• ■ •• ■ •••••• ■ •••••••••••••••••••• ■ •••• RESPONDENTS I •••• . (Revision from the Ruling of the High Court of Tanzania at Dar es Salaam) (Luanda, J.) dated the 8 th day of September, 2003 in HC. Civil Case No. 318 of 2002 ---------------------- RULING OF THE COURT --------------------- 10 July & 13 July, 2006 NSEKELA, J. A.: This matter came before the Court after Luanda, J. drew our attention to the fact that the Deputy Registrar of the High Court, one I' 2 Mutungi, erred in the exercise of powers conferred upon Registrars of the High Court under Order XLIII Rules l(a) and 6 of the Civil Procedure Code, 1966. A brief factual background to the matter will be helpful. In the High Court, Dar es Salaam Registry, the plaintiff, Renatus Ambrose Haule, instituted Civil Case No. 318 of 2002 against (i) Tanzania Railways Corporation and (ii) Parastatal Sector Reform Commission, claiming, inter alia, shs.94,702,400/= being subsistence allowance. On the 25.11.2002, the parties appeared before the said Deputy Registrar. The defendants were represented by Mr. Mgare, learned advocate, and the plaintiff appeared in person, unrepresented. Mr. Mgare prayed to file a written statement of defence on behalf of the 1st defendant who had been served with summons to file its defence on the 23.9.2002. This meant that on the 25.11.2002, the twenty - one days within which to file its written statement of defence had already expired. In fact this period had expired on the 15.10.2002. However, the Deputy Registrar, on the 25.11.2002 ordered that the defence should be filed on or before the 6.12.2002. The learned advocate actually filed it on the 28.11.2002. 3 Subsequently, on the 10.12.2002, the matter came before Luanda, J. On examining the court proceedings, it became apparent to the learned judge that the Deputy Registrar, though vested with. powers to extend time under Order XLIII Rule l(a) of the Civil Procedure Code, 1966, had made an illegal order by exceeding the prescribed twenty - one days under Order XLIII Rule 6. The learned judge could only lament that he had no powers in this situation to rectify the error which was apparent on the face of the record. We start with an examination of Order XLIII Rules l(a) and 6 which are in the following terms - "1. Subject to any general or special direction of the Chief Justice, the following powers may be exercised by the Registrar or any Deputy Registrar or District Registrar of the High Court in any proceeding before the High Court - (a) to extend the time under rule 6. 4 6. The Court may extend the time limited by the rules contained under the first and second Schedules herein for the doing of an act authorized or required by such rules. Provided that an application for extension of time is made by the party concerned within twenty - one days of the expiration of the prescribed time, unless otherwise provided by the relevant rule". { emphasis added) The prescribed time expired on the 15.10.2002 and so the application for extension of time started to run from the 16.10.2002. Mr. Mgare, learned advocate, made the application on the 25.11.2002, clearly outside the prescribed period of twenty - one days as reckoned from the 16.10.2002. 5 It is now common knowledge that under the Appellate Jurisdiction Act, 1979 as amended by Act No. 17 of 1993 the Court's revisional powers can be exercised in one of two ways - (i) under Section 4(2) in the course of hearing an appeal and (ii) under Section 4(3) which provides - "(3) Without prejudice to subsection (2), the Court shall have the power, authority and jurisdiction to call for and examine the record of any proceedings before the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision made thereon and as to the regularity of any proceedings of the High Court". The Court has articulated certain principles before exercising its revisional powers. These are:- 6 ~,1. · The Court may, on its own motion and at any time, invoke its revisional jurisdiction in respect of proceedings in the High Court; 2. Except under exceptional circumstances, a party in proceedings in the High Court cannot invoke the revisional jurisdiction of the Court as an alternative to the appellate jurisdiction of the Court; 3. A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court in matters which are not appealable with or without leave; 4. A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court where the appellate process has been blocked by judicial process." {See: Halais Pro- Chemie v. Wei/a A.G. {1996) TLR 269 at page272) 7 The instant case falls under the first category. We have had the opportunity to examine the record of the proceedings in the High Court and the record reveals the illegality of the order made by the Deputy Registrar on the 25.11.2002. We do not entertain any doubts whatsoever that the Deputy Registrar erred in the exercise of powers conferred upon him under Order XLIII Rule l(a) of the Civil Procedure Code, 1966. The twenty - one days commenced to run from the 16.10.2002 and when the application for extension of time was made on the 25.11.2002, it was outside the prescribed period. In the result, we set aside the order of the Deputy Registrar dated the 25.11.2002 and order that the case should proceed according to law from the order of Luanda, J. made on the 28.10.2002. We make no order as to costs. DATED at DAR ES SALAAM this 13th day of July, 2006. 8 J. A. MROSO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. s. DE