20131028 TZCA Dar es Salaam

I / IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 176 OF 2012 TITO LUPYANA NDULUTE ................................................. APPELLANT VERSUS CONSOLIDATED HOLDING CORPORATION . ................... RESPONDENT (Application for extension of time to file Application for leave to Appeal out of time from the decision of the High Court of Tanzania, at Dar es Salaam.) (Mihavo, J.) Dated the 22,d day of December, 2006 in Civil Anneal No. 28 of 2006 RULING MMILLA, iA.: Tito Lupyana Ndulute (the applicant), has by a way of notice of motion instituted Civil Application No. 176 of 2012. It is made under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and section 14 of the Law of Limitation Act Cap. 89 of the Revised Edition, 2002. It is seeking for, among other reliefs, this Court's indulgence to extend time to enable him institute an appeal out of time. While the applicant appeared in person and'was not defended, Mr. Joseph Sang'udi, learned advocate, appeared for the respondent, Consolidated Holding Corporation. 1 The background facts leading to this application are briefly that; the applicant, a former employee of the National Bank of th Commerce (NBC) since 1986, was on 27 May 1993 dismissed from the employment. He appealed to the Conciliation Board and the Board lifted the dismissal but recommended redundancy. He then appealed to the Minister for Labour and Youth Development who ordered his reinstatement and be paid all his rights. In 2002, the applicant filed a suit against the respondent at Kisutu Resident Magistrates' Court for execution. The court decided in his favour. However, the respondent successfully appealed to the High Court whereby the judgment of the trial court was quashed and its decree was set aside. The applicant felt aggrieved but at the time he resolved to appeal to this Court, he found that he was time barred. His first application in the High Court for extension of time was struck out on account that it was time barred. He decided to apply for leave in this Court. The respondent's advocates filed notice of preliminary objection in which they raised four grounds as fol lows:- That the application is incompetent and pre-mature for want of leave to appeal to the Court of Appeal of Tanzania. 114--mt. in support That the verification clause of the = of motion contravenes the requirements of order XIX rule 3 (1) of the Civil Procedure Code Cap.33 of the Revised Edition 2002. 2 That the Law of Limitation Act cited as enabling law in the notice of motion does not apply in the Court of Appeal of Tanzania. That the affidavit in support of motion is tainted with untruths by virtue of the averments contained in paragraph 6 thereof. Mr. Joseph Sang'udi argued these grounds seriatim. The gist of Mr. Joseph Sang'udi's submission in support of the first ground is that in terms of Rule 45 (b) of the Rules, the applicant ought to have first applied for leave to appeal to this Court in the High Court. He contended that he was aware that the applicant made efforts of filing an application for leave to appeal in the High Court, but that his application was struck out on account that it was time barred. After that episode he submitted, the applicant instituted the present application in this Court instead of going back to the High Court, hence his argument that the application is incompetent and pre-mature to come to this Court. He referred the Court to the case of Muhsin Mohamed Taki Abdalla v. Tariq Mirza, Civil Application No. 100 of 1999, CAT, Dar es Salaam Registry (unreported). As regards the second ground, Mr. Joseph Sang'udi submitted that. the verification clause of the applicant's affidavit in support of the notice of motion is defective in that it contravenes the provisions of Order XIX rule 3(1) of the Civil Procedure Code Cap. 33 of the 3 Revised Edition, 2002. Under that rule, he submitted, the deponent is required to confine himself to the facts as he may be able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted. The learned advocate has charged that the applicant in the present matter generalised that all what he covered was true to his own knowledge while in fact there is information in some of the paragraphs which suggest that he sourced elsewhere. On this point, he relied on the case of Salima Vuai Foum v. Registrar of Cooperative Societies and Three Others [1995] T.L.R. 75, particularly holdings (I) and (ii) thereof. He asserted that where the verification clause is like that, then the affidavit is incompetent and cannot be relied upon. He prayed the Court to declare that the said affidavit is incompetent. The third ground is that the Law of Limitation Act cited as enabling law in the notice of motion is not applicable in this Court. He submitted that it was not open for the applicant to have cited section 14 of that Act, and that he ought to have cited only Rule 10 of the Rules. He stressed that the necessity of citing the specific provisions of law has been underscored in Rule 48 (1) of the Rules. If found the Law of Limitation Act does not apply to this Court, Mr. Joseph Sang'udi prayed for the Court to expunge the wrongly cited provision. Lastly is the ground alleging that the applicant's affidavit in support of the notice of motion is tainted with untruths by virtue of 4 the averments contained in some of the paragraphs. He in particular mentioned paragraphs 6 and 7 of the said affidavit. In paragraph 6, he submitted, the applicant is not truthful when he said he flied an application for extension of time in which toRp1 in the High- Court which took almost a year. It is his argument that the application he referred to had nothing to do with extension of time in which to appeal, but was for leave to appeal. He added that it was that very application which was struck out for having been filed out of time. Even, Mr. Joseph Sang'udi submitted, the High Court has no jurisdiction to entertain an application for extension of time in which to lodge an appeal in the Court of Appeal. Equally untrue, the learned advocate submitted, are the contents of paragraph 7 of the applicant's affidavit in which he said Civil Appeal No. 51 of 2010 was pending before this Court. He said it was a lie on account that 4t case was not an appeal, but was an application for leave to appeal which was struck out on 30.10.2010 by Hon. Mandia, JA. Relying on case of Ignazio Messina v. Willow Investment SPRL, Civil Application No. 21 of 2001, CAT, Dar es Salaam Registry (unreported), Mr. Joseph Sang'udi submitted that since the untruths shown go to the root of justice, the applicant's affidavit should be declared unreliable. Over all, for reasons assigned the respondent's advocated prayed the Court to dismiss the application with costs. 5 The applicant readily admitted in the first place that he prematurely filed the instant application to this Court. He lamented though, that he was forced to do so because his previous such application before the High Court took too long time to be determined, and that he filed it in this Court believing that justice would be dispensed expeditely. On the other hand, the applicant had nothing substantial to say as regards the second, third and fourth grounds. He rested the matter in the hands of the Court for consideration as it would deem proper and equitable to do. He nevertheless pleaded for it to take into consideration, in deliberating the decision to be handed down in this matter, the dictates of article 107A (2) (e) of the Constitution of the United Republic of Tanzania (the Constitution). In a brief rejoinder, while appreciating the applicant's concern in relying on article 107A (2) (e) of the Constitution, Mr. Joseph Sang'udi reminded the Court to consider that article along with other laws. He reiterated for the Court to dismiss the present application. The first ground raised by the respondent's advocate should not detain the Court long on the basis that it is plain and certain that it is pre-mature on account that after the first such application was struck out for having been instituted out of time, the applicant did not first re-lodge the same before the High Court seeking to appeal to this Court as envisaged by Rule 47 and not Rule 45 (b) of the Rules cited to me by Mr. Joseph Sang'udi. Rule 47 of the Rules provides that:- "Whenever application may be made either to the Court or to the High Court, it shall in the first instance be made to the High Court or tribunal as the case may be, but in any criminal matter the Court may in its discretion, on application or on its own motion give leave to appeal or extend the time for the doing of any act, notwithstanding the fact that no application has been made to the High Court." or There are a coupleases which addressed this position; they include those of Ital Africa Transport Ltd v. Giafarm Beder [1999] T.L.R. 251 and Muhsin Mohamed Taki Abdalla v. Tariq Mirza (supra). In both those cases, basing on Rule 44 of the old Tanzania Court of Appeal Rules, 1979 which has been replicated in the current Rules, viz. Rule 47 thereof; the applicants' respective applications to this Court were rejected for having not first been filed in the High Court. In disallowing the application in Mohamed Taki Abdalla v. Tariq Mirza (supra), the Court observed inter alla that:- "First of all, since the application was struck out rather than dismissed, it ceased to exist. It is as if no application had been made. Any subsequent application cannot come to this Court because whenever it is made either to this Court or to the 7 High Court, it has to be made to the High Court in the first instance. The respondent therefore cannot be heard to say that they have been waiting to be supplied with a copy of the ruling of 29th May, so as to enable [them] lodge an application for leave before this Court. I only take that for three years now they have not seen the need to do the correct thing mainly to re-apply to the High Court for leave to appeal. F, Fortunately, the applicant in our present case has appreciated the point and conceded. It suffices to say that this ground has merits and is upheld. The second ground allege that the verification clause of the defendant in support of notice of motion contravenes the requirements of order XIX rule 3 (1) of the Civil Procedure Code Cap.33 of the Revised Edition 2002. Mr. Joseph Sang'udi has submitted in this regard that the deponent was required to have deponed on matters within his knowledge or on those matters believed by him but for which reasons are given for his belief. He has asserted that in his affidavit, the applicant made generalization without specifying which among the information he gave was based on his own knowledge and which was based on his belief and reasons thereof. He relied on the case of Salima Vuai Foum v. Registrar of Cooperative Societies and Three Others (supra) - holdings (I) and (ii) thereto. He contended that where this is the case, the affidavit is incompetent and should not be acted upon. He prayed the Court to declare the applicant's affidavit incompetent. On his part, the applicant had nothing to say. As earlier pointed out, he rested the same in the hands of the Court. Let me hasten to say that Rule 3(1) of order XIX of the Civil Procedure Code relied upon by Mr. Joseph Sang'udi stipulates very clearly that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted. I also agree with what was expressed in the case of Saluma Vuai Foum (supra) that where an affidavit is made on information, it should not be acted upon by any court unless the sources of information are specified, and that where the source of information is not specified, such affidavit is incompetent and should not be acted upon. I have gone through the applicant's affidavit under consideration. I have not found any paragraph whose contents fit the criticism levelled against him by the respondent's advocate. To the contrary, the contents of all the paragraphs in his affidavit clearly show that he covered information of which he had knowledge of. In the circumstances, I do not agree with Mr. Joseph Sang'udi that the applicant flouted the provisions of the above cited order. Thus, this ground is not well founded and is dismissed. On the other hand, let me rush to say that I agree with the respondent's advocate regarding his complaint in the third ground of the preliminary objection that the Law of Limitation Act cited as enabling law in the notice of motion does not apply in the Court of Appeal of Tanzania. The reason is clear that applications to this Court are governed by the Rules, and that since there is a specific Rule in the Rules which accommodates the kind of application he lodged, he ought to have relied on that provision without more. Thus, I find and hold that citing the provisions of section 14 of the Law of Limitation Act constituted an irregularity. However, since it was not a fundamental defect, the remedy would be to strike it out as I accordingly do. In a proper case, that would have left only Rule 10 of the Rules for consideration. The last ground is that the affidavit in support of notice of motion is tainted with untruths by virtue of the averments contained in some of the paragraphs. He was specific that paragraphs 6 and 7 thereof did not reflect the truth of what they stood for. Relying on the case of Ignazio Messina v. Willow Investment SPRL Ignazio Messina v. Willow Investment SPRL (supra), Mr. Joseph Sang'udi prayed the Court to declare the affidavit unreliable. In this regard, let me hasten to say that there is substance in what Mr. Joseph Sang'udi said concerning both these paragraphs. In the first place, I agree with him that the applicant's allegation in the 6th paragraph that he filed an application for extension of time in the High Court which took almost a year did not represent the truth 10 firstly because the application he referred to was not for extension of time .in which to appeal, but was seeking for leave to appeal. That application was struck out by that court (Hon. Aboud, J). Secondly, that court had no power to entertain an application for extension of time in which to appeal to this Court. On the other hand, the applicant said in paragraph 7 of his affidavit that there was a pending appeal No. 51 of 2010 which was struck out on 30.103O4-2- Once again, I agree with Mr. Joseph Sang'udi that the applicant was not truthful because that was an application for leave to appeal and not an appeal. That application was struck out by Hon. Mandia, J.A. Notwithstanding however, the fact that the two paragraphs mentioned above are found to be tainted with untruths, I pose here to ask; can that aspect alone form the basis of determination of the entire application? What does a preliminary objection entail? The test of a preliminary objection properly so called had been expressed in many cases amongst which is that of COTWO (T) OTTU Union & another v. Hon. Idd Simba - Minister of Industries and Trade & Another [2002] T.L.R. 88 in which the Court re-affirmed the meaning of the phrase preliminary objection expressed in the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd. [1959] E.A. 696. It said:- "A preliminary objection should be raising a point of law which is based on ascertainment of facts, not on 11 fact which has not been ascertained and, if sustained, preliminary objection should be capable of disposing of the case". As far as our present case is concerned, I am not convinced that falsehood is a point of law capable wholly disposing of the matt:er before the Court. The reason is clear that not all the paragraphs in the said affidavit were false. As is the case, the attack on the basis of falsehood refers to only two paragraphs out of eight of them. So that, while I appreciate the Court's expression in in the case of Ignazio Messina v. Willow Investment SPRL Ignazio Messina v. Willow. Investment SPRL (supra) that an tainted with untruths is no affidavit at all, I hurriedly heed to the caution that every case must be considered on its own set of facts. The reason is clear that at most, the paragraphs which may be said to be false may attract the wrath of their being expunged out of the record so as to leave the untainted ones to be proceeded with, if at all. Thus, while I hold that the 6th and 7th paragraphs were tainted with untruths, I would have, in a fit case, directed their removal from the record. However, I am holding off the desire to so direct in view of my having upheld the first ground of the preliminary objection that it was fatal for the applicant to have filed this application in this Court without having first instituted it in the High Court, therefore that he flouted the provisions of Rule 47 of the Rules. 12 As I earlier on pointed out, the applicant pleaded that in deliberating the decision to be handed down in this matter, the Court takes into consideration the dictates of article 107A (2) (e) of the Constitution. This article provides that:- "In the determination of civil and criminal matters according to law:- (e) administering justice without being unduly constrained by technical requirements, which are capable of preventing justice from being done." Put it the courts shall have regard to the following principles, that is to say differently, it means that a court should take a liberal approach to rules of practice and procedure, and that procedural irregularities should not vitiate proceedings if no injustice has been occasioned. The rationale is that Rules of procedures are handmaids of justice and should not be used to defeat justice. Despite what I have just said above, it is important to also point out that procedural rules are enacted to be complied with. This was better expressed by this Court (Samatta, JA) in VIP Engineering & Marketing Ltd vs Said Salim Bakhressa Ltd., Civil Application No. 47 of 1996, CAT, Dar Registry (unreported). In that case the Court said that:- "There can be no rational dispute over the fact that procedural rules are enacted to be complied with. Usually there is a legal principle behind every procedural rule. But those rules differ in 13 4 importance. Some are vital and go to the root of the matter, these cannot be broken. Others are not of that character and can, therefore, be overlooked provided there is a substantial compliance with the rules read as a whole and provided no prejudice is occasioned." This explains why, in a number of cases the Court has consistently pointed out that article (107A (2) (e) (supra)) did not do away with all rules of procedure in the administration of justice in the country. The said cases include those of Zuberi Mussa v. Shinyanga Town Council, Civil Application No. 100 of 2004, C.A.T at Mwanza Registry, Francisca Mbakileki v. Tanzania Harbours Authority, Civil Reference No. 14 of 2004, CAT, Dar es Salaam Registry and The Hon. Attorney General v. Reverend Christopher Mtikila, Civil Appeal No. 20 of 2007, CAT, Dar es Salaam Registry (all unreported). In the case of Zuberi Mussa v. Shinyanga Town Council CiviL(supra), the court held that:- "... .In our decided opinion, article 107(2) (e) is so couched that in itself it is both conclusive and exclusive of any opposite interpretation. A purposive interpretation makes it plain that it should be taken as a guideline for court action and not as an iron clad rule which bars the court from taking cognizance of salutary rules of procedure which when properly employed help to enhance the quality of justice delivered. It recognizes the importance of such rules in the orderly and predictable administration of justice. The courts are enjoined by it to 14 At administer justice according to law only without being unduly constrained by rules of procedure and/or technical requirements. The word "unduly" here should only be taken to mean "more than is right or reasonable; excessively or wrongfully ... one cannot be said to be acting wrongfully or unreasonably when he is executing the dictates of the law." It is clear therefore that this constitutional provision does not provide rescue to the applicant's fate in the present matter. Since the major complaint in the first ground of preliminary objection which I have upheld refers to applicant's failure to comply with the provisions of Rule 47 of the Rules, which in my firm view is a vital Rule such that its non-compliance go to the root of the matter, it cannot be broken. As such, this article cannot be called to applicant's aid. In conclusion, on the basis of what I have said in respect of the first ground of the preliminary objection, I find the instant application incompetent. I thus dismiss it with costs. DATED at DAR ES SALAAM this.. :z.day of October, 2013. --1 B. MMMI1=LA JUSTICE OF APPEAL 15