yesaya tewela mwambungu vs nbc holding corporation 2001 tzhc 48 12 april 2001

IN THE HIGH COURT OF TANZANIA V ^ ^ MJ^YA • . * MISCELLANEOUS CIVIL APPLICATION NO. 13" OF 1999 (ORGINAL MREYA DISTRICT COURT CIVIL CASE-NO. 92 ' OF 499*0 . ■ - . •YESAYA TEWELA MV/ANBUWOU . . . . . . . . . . . . I .. APPLICANT . ... VERSUS N.B.C. HOLDING CORPORATION .................,.RESIONDENT R U„ L I N_G * MACKANJA i J« ' >* Yesaya Tewela Mwambungu has taken out a chamber summons by whicb he has instituted a chamber application seeking the following orders (1) that this application be entertained out of time; * (2) that the ruling in the Mbeya D istrict Court C iv il Case No.92 of <L99^ dated 9th January, 1997 be revided and be quashed; • to.the counter claim in the y ^(3) that he be given leave to Pgg^jLt a written statement o f defence d C iv il Case, presumably No.92 of 199^? (^f) that th is Court do order that C iv il Case No.92 of 199^ should prdceed to fu ll hearing and final determination. The application is supported by the a ffid a vit of the applicant. In order to lay a clear background to what I propose to say about that a ffid a vit I have deemed it expedient‘.to reproduce it in extenso^, namely:- *• ;,I , TEvJELA MWAiSUNGU, an adult Christian, of Uyole area, Mbeya, do hereby solemnly swear and state on-oath as follow s:- ,1 1. I am the p la in tiff in C iv il Case No.92/9^ at the Mbeya District' Court » This case was finished in a manner that w ill appear in the following paras of this a ffid a v it. 2.' In the said C iv il Case th£ defendant was the former National Bank o f Commerce the presecessor of the respondent* The ssdLd defendant had counter-claimed under Order 35 of the CPC in the sum of 3^8.9,676,19^5 as 25/10/199^ allegedly being the outstanding amount'together with interest and bank- charges- arising out of a term loan and overdraft amounting to shs.3 ,700 ,000/- taken in 19^7 * 3* The main suit that I had file d was for prayers that my prox>erty which had been wrongfully attached by the Bank be returned to me, The said property was a Valmet Tractor * No«r'TZ 86592 and an Isusu 7 ton Lorry-No. MB 3769* The said vehicles had fcAem -wrongfully grabbed,and attached by the Bank- in May, 1989* A . I do not dispute that I took- the. said loan ...n& •overdraft o f shs. 3,700,000/= from the respondent • in 1987* But my complaint is that the Bank did . .not fo llo w the loan agreement' in attaching my * * • .property as fo llo w s :- . >• • r ' (a) Parr. 3 of the BaskTs. le t t e r approving ' » my loan of s h s .j,400,000/= stipu lated th a t’ the f i r s t instalment o f shs.170,000/ ' tov/crds’ repayment o f the loan was duo to bo paid in Juno,19oifV« Yet as oa rly as 4.4* 19$9 the Bank had started claiming that I was over—due in repayment o f the loan ^nd that I was not adhering to the loan ropayment1programine. (b) Para 10 of the said Bank’ s le t t e r stipu lated that the loan was sepured > ♦ -■’ey ny farm at Uyolo registered under * C e rtific a te of Occupancies Nos. 3734 L/o Nos* 72125 and.72131 valued at t ha if time at shs.4,100,000/=. : ? ; Yot'the Bank grabbed the said ..* . ■» vC motor cehicles ,instead of fo reclo sin g end s e llin g the mortgaged farm. f - (c ) ^s stated* above, p a ra -3 of the Banins l e t t e r stipu lated 'that the f i r s t repayment instalment was supposed to be ja id in June, 1989* Yet the Bank attached the said m otor-vehicles in May, 1989 before the sta rt of the agreed repayment period. Attached are copies o f the said ^ 3a.nk: s le t t e r marked .A and B to be part o f this a ffid a v it . ../3 5. What has been stated in para 4, above v;as the theme in the said C iv il Case No. 92/94 which I f i l e d at the D istrict. Court o f Lbeya praying fo r the return of the said motor— veh icles. As stated e a r lie r , the Bank . counter-claimed in the sum of shs. 9 , 676 ,194/45 under Order 35 of the CPC. 6. I applied fo r leave todefend myself against the Countc reclaim ,as stipu lated in Order 35 of the CPC. My reasons fo r applying fo r lea vs to defend were e s s e n tia lly those as. stated in para 4 hereinabove I f given leave to defend. #I would have raised the defence on the fo llo w in g issues: ( a ) ' V/licther i t was proper fo r the Bank ? to attach my property which had not been mortgaged to the Bank. |b) v/hother the Bank was rig h t to foreclose ; 1 'any-property before the repayment date H-dd become due:. (c ) ';7hcther the Bank has powers to attach any property o f a customer which i s "n ot secured on the loan, . 7 In the .’ru lin g fo r the said application fo r leave - to defend, the t r i a l Resident Magistrate dismissed the app lication with costs. The court in sisted that tiio-re was no tria b le issue worth allowing me to defend against the counter-claim and ordered me to pay the Bank the said shs.9,676,194/45* 8. Naturally,. I was. d is s a tis fie d with the ru lin g. I instru cted my former advocate to appeal to the High Court. The s*ud advocate, the learned Mr. Mwangole, informed me that he had f i l e d the appeal' on 5•2.1997. ■- He even served me with the copy o f the memo of appeal which showed that my appeal was .IJo.8/97 » . at the High Court, Lbeya. ' 4 -m I attach a photo-copy o f the said nemo of appeal which is marked C as part of th is a ffid a v it . • The. "copy o f the ru lin g is giajpked D. %all to form part o f th is a ffid a vit". 9. So, from 5*2*1997 I have been of the impression that my appeal»vias pending to be heard at the High Court* My advocate has been t a ilin g roe that the appeal was yet* to be fix e d fo r hearing every-timo I enquired from him about the progress of the tappeal* 10. Howevcrj when I' found, that the appeal wns rather 4 ■dragging on fo r too long, I decided to go straigh t to the c i v i l R egistry o f the High' Court on*' 18/8/1999 * < ■. to enq'oiire about the progress of the case: ■ A wa,p deeply.astonished'*to be to ld t[hat there is V <' ' : no pending appeal in,the-H igh Court in which I am the appellant. .1- was fu rth er told that oven the so -ca lled Cirvil .Appeal .Ho.8/97-as •shown vin "the purporte memo' of-Appeal, i s a fake one. The High Court r e g is tr y shows' that (D) C iv il Appeal No.8/97 i s o f d iffe r e n t p a rties a ltogeth er. . 11. In the circumstances, I am lik e ly to lose my righ ts fo r no ;.iistakes of my own. Hence th is application in which I am praying fo r the follow in g r e l i e f s : (a ) The High Court ravise the proceedings jind’’ruling .in the D is tr ic t Court o f L"beya C iv il Case No. 92/94. , (b) Quash the said D is tr ic t Court’ s ru llin g dated 9.1.97 and set aside the orders thereto. / c} I be given leave to defend myself against the Bankf s counter—#lai*m of shs.-a, 6-76,134/45. , (d) The C iv il Case ITo .'9^/1994 procecd to hearing and f in a l denomination. . . ‘ * • ^ 12. I v e r ify that what has been stated- it* ^r^ras ^ and- 11 above are obtained from inform ation supplied ; by my present aidvooatcs, Kr. <L3cunbo# of the p. -brue-to the .best of my own,personal knowledge." The a ffid a v it , p a rtic u la rly paragraphs 1 to 8y chronicles stages through which the application fo r leave to defend..,passed W ../ 5 The said application fo r leave was. dismissed* The applicant swears in paragraph 3 that the dism issal of his a p p lic a tio n ' « * ag^rieved him, so he instructed his advocate, Mr* IIwan&ole* to in s titu te an appeal before th is Court. To hist, astoshment Mr. Kwangole did not do what he was instructed 'to do* That i t was on 18th August, 1999, when he discovered that the appeal had not been in s titu te d a fte r a ll* Unless, th erefore, th is application >i s allov^d he w ill lose his rig h ts. ^ The counter a ffid a v it by, which the respondent bases her opposition to the application is f a t a lly d efective as i t does not conform to the requirements o f Order XIX rule 2 o f the C iv il Procedure. Code* I t is d efective because even th©ugh i& p a rtly based on the deponent's b e lie f, the grounds fo r such b e lie fs are not. disclosed* , , . J r ■* * ‘ . Mr* Mkumbe,- learned counsel fo r the applicant, has f i l e d * • w ritten submissions which are made up o f two sentence, except fo r the.opening address and concluding words* .^Learned counsel says t h i s : - ' * ” . . . The ror/sbiis fo r th is application arc . ac indi cate cl; in the a ffid a v it by. the applicant which supports the Chamber Summons* . I humbly ' pray that Your. Lordship regard what ever £us . been w ritten in tRe a ffid a v it as. part o f th is w ritten submission**. Mr. Mwakilasa, learned counsel fo r the respondent, hs3 not been extiaustive e ith e r . In essence lie submits that i t is clear * % from the counter a ffid a v it that the. d ecision o f the D is tr ic t Court was not a p p clia b le, so that the a lle g a tio n by the applicant that he f i l e d a’ memorandum of appeal is not true fo r i t has not been countered by the applicant’ s advocate who is alleged to have • drawn the Said* memorandum of appeal. ' Like Mr. lukumbe, rr.Mwakilasi also in v ite s th is Court to aonsider tho counter a ffid a v it as part o f his submissions. As the chambcr summons v iv id ly shows th is application..seeks four in terela ted r e l i e f s . Of coursc , by i t s very nature, the success of the application much depends on the f i r s t r e l i e f . For should i t f a i l , t'hen the rest o f the application w i l l also grumble. ~ • >v *• ••• What, then, must be done in order that the app lication may , ‘ * ’* * succeed. The answer resides in the Law o f Lim itation x*ct, No. 10 i- o f 1971. In Order fo r an app lication such as th is one to suoeeed the requirements o f scction 14(1) o f the Law of Lim itation Act must *e met. I t provides thus:- ... .j I ;-:ft1 4 (l) notwithstanding, the provisions o f ' th is ^ot, the court may, fo r reasonable or s u ffic ie n t cause, extend-' the period of lim ita tio n for-th e in s titu tio n - o f an appeal or application , other than an ap p lication fo r execution of a d e c r e e ...” . * * As by law provided the applicant must show that ho was prevented by "s u ffic ie n t or reasonable causer} to act within the time prescribed by law. * *•# — - The expressions :ts u ffic ie n t cause” or reasonable cause'*’ have not been defined. Mo#-doubt .-these expressions are as widte as they are comprehensive in th e ir meaning. " I t may be said that in th e ir natural meaning they trover a situation,which is beyond the control o f the party who seeks to ju s t ify h is delay. According to the learned authors o f M itra; Conmentarie s "on the Lav; of Liriiitation , 4th E dition at page 99 The te s t, whether or not ,a cause is s u ffic ie n t, is to see whether i t is a bona fid e cause, inasmuch as nothing sh a ll -'fce taken to be done bona f i de ..or in good fa ith which is not done with due care and atten tion ; Subject., to theabove te s t, , v the words ‘S u ffic ie n t ca u sesh o u ld re carve lib e r a l construction so as to advance substantial ju s tic e . "When no negligence*-nre-r in action nor want o f bona fid e s i s imputable to a party fo r ,the r . ,x delay in f i l i n g an appeal i t would constitute a s u ffi cien t cause» . . The Indian scholars were making a -commentary on section 5(1) of the Indian Law o f Lim itatioh Act 'which is in pari' materia with section 14(1) o f ..our h -\w of Lim itation Act. The commentary is , th erefore, relevant to our circumstances. Applying the p rin cip le that is embodied in-the Indian, jurisprudence, the question i s r - s whether the applicant passes the above te s t which I propose to apply here* This can be done i f the .applicant csn show that he has accounted fo r the'tim e o f the •de:layj--.and th is must be done s tr ic tly .' He mu§t show- that he is not g u ilty o f la dies or negligence. '* ' " * ‘ ’ According to the a ffid a v ita l- evidence which supports the s # app lication .the whole delay is blamed, on Hr. Mwangolc, learned counsel, who i t is a lleged , neglected to f i l e the appeal in time. If" that was the case then the applicant was required to have L5r. Mwangole t e s t i f y re gar ding, whether indeed he had instru ctions to in s titu te the appeal. In any’ case, proof was required fo r the fa c t -that the applicant retained Mr, Uwangole to act fo r him. There is no such proof. Even i f Mr, Uwangole was instructed, i t is now t r it e law in our country that counsel* s negli^cnce doe a not constitute "s u ffic ie n t cause or reasonable cause1' fo r any delay. I t follow s that the-delay o f over two years i s not only in ex p lica b ly inordinate, i t was not caused by s u ffic ie n t or reasonable cause.1- As a resu lt the f i r s t prayer would f a i l ; with i t go the other three prayers. - *' Let me now say a word or two about ” submissions" by learned counsel. Seriously th eirs were not submissions;1' they wore prayers. 2xS I had occasion to say in another case, and I f e e l disadvantaged - * *-r to have to quote from my own judgment, Kulwa v. Returning O ffic e r , 4 • > £T99§7 T . L . H . 320 a t p a g s s 322 end 3 2 3 : - As regards thei f i■r s t ground of appeal when th is appeal was ca lled fo r hearing the parties* wure directed to make formal w ritten submissions, w I t would appear that i Mr. Byabuslm, an advocate based in'Musoma, was engaged by the"appellant to prepare the .w ritten subnissions fo r the appellant. He d id 'so and f i l e d 'a document with fiv e sentences, the operative part bf-whi#h read -thus;.. ,t ; it. pic-sso .your Lordship, In addition to my grounds of appeal I mah to submit that the "“ “ learned T r ia l ctent Magistrate ■ misconstrued s. 19(1) tlie ; . * • j { Governiacnt (E lection s) /4ct, 1979 No.' ■ 4 since that section re la te s to a. v o te r.; : 'and not a p e titio n e r lik e myself. A j " j- • ■ p e titio n e r is governed by the provisions quoted in my f i r s t ground of appeal ♦ Learned counsel who drew the a p p ella n t's sub­ missions did not care to make a correct c ita tio n o f .the Act,, nor did he fin d i t necessary to elaborate on the alleged mis construction o f s. 19(a) although he should have rea lised that his gen eralisation is pregnant 'W ith serious aspersion on the profession al ca p a b ility o f the learned T r ia l M agistrate. I fin d i t unnecessary to admonish learned counsel but he should re a lis e that what he drew fo r his c lie n t are not submissions afr a l l . Submissions must contain reasons and base 3 fo r le g a l "and fa ctu a l propositions 5 which are put forward by learned'counsel-as o ffic e r s of the oourt. In these circumstances the appellant has not f i l e d any w ritten submissions as required by the Court.” With that said, the application is dismissed with costs. Ruling to be d elivered by the D is tr ic t R egistrar on 6th A p ril, 2001. sgd; J. 'II. KACEANJA JUDGE 4/ 4/2001 Court Ruling d elivered th is 12th day o f A p ril 2001 in the presence o f rlr. Kkumbe learned counsel fo r the applicants and Kr. Ilwakilasa, learned counsel fo r the respondent. sgd; II* G. Mzuna Ag. DISTRICT REGISTRAR 12/ 4/2001 C e rtifie d true copy of the o r ig in a l Ruling.