Court name
Court of Appeal of Tanzania
Case number
Civil Application 124 of 2005

Kalunga & Co. Advocates vs National Bank of Commerce Ltd (Civil Application 124 of 2005) [2006] TZCA 87 (24 April 2006);

Media neutral citation
[2006] TZCA 87

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM

 

CIVIL APPLICATION NO. 124 OF 2005

 

 

 

KALUNGA AND COMPANY ADVOCATES APPLICANT

VERSUS

NATIONAL BANK OF COMMERCE LTD RESPONDENT

 

 

(Application for leave to appeal to the Court of Appeal of Tanzania from the decision of the High Court of Tanzania at Dar es Salaam)

 

(Mihavo, J.)

 

dated the 10th day of December, 2004

in

Civil Reference No. 5 of 2004

6 & 24 April 2006

 

RULING

 

NSEKELA, J.A.:

By a notice of motion filed on the 26.8.2005, the applicant, Kalunga and Company, Advocates, seek under Rules 8 43 (b), 46 (1) and 46 (3) of the Court of Appeal Rules, the following orders, namely that the time within which to file an application for leave to appeal to this Court be extended and that the applicant be granted leave to appeal to this Court against the decision of Mihayo, J. dated 10.12.2004 in Civil Reference No. 5 of 2005 between the same parties. The application is supported by an affidavit of Mwezi Mhango, learned advocate for the applicant.

In order to appreciate the essence of the application, reproduce in extenso Mr. Mhango's affidavit in support. It reads -

 

 

 

"2. In the taxation between client and advocate in Miscellaneous Civil application 278 of 2002 Honourable Lila, the Taxing Officer, rejected certain items in both the bill of costs and the costs of taxation and being aggrieved by that decision the applicant preferred a reference to the High Court Judge, the same having been filed as Civil Reference No. 5 of 2004

 

 

3. The matter was argued by way of written submissions on the merits of the application and on the day of delivering the ruling Mihayo, J. struck out the application on the ground that the jurat in the affidavit filed in support of the application was defective in that it did not show the date or the place where the affidavit had been taken —

 

4. The jurat which Mihayo, J. said was defective reads as follows:-

 

 

"Sworn by the said LEOPOLD THOMAS KALUNGA before me

 

 

COMMISSIONER FOR OATHS At Dar-es-Salaam 14.4.2004"

and shows that it was sworn before Advocate Chandoo

  1. The Honourable Judge had raised the issue of the jurat suo motu and decided it without inviting Counsel appearing for the parties to argue the point

  2. Being aggrieved by the decision of Mihayo, J. as advocate of the applicant I filed a Notice of Appeal and served it on the respondent within the prescribed period

  3. In addition to what is stated above I further filed an application for leave to appeal to the Court of Appeal which application was heard by Manento, J.K. who on the 26 July, 2005 dismissed it —

  4. Manento, J.K. gave as the ground for dismissing the application on the ground that the affidavit sworn by L.T.L. Kalunga in support of the application that should have first shown the place where it was sworn and this should have been followed by the date

  5. I believe that Manento, J.K.'s ruling amounts to the usurpation of the role of the Court of Appeal since it was not for him to decide whether Mihayo, J. had or had not correctly Interpreted section 8 of the Notaries Public and Commissioner for Oaths Act (Cap. 12).

 

I further sincerely believe that if Mihayo, J. had asked Counsel representing the parties to argue the propriety or impropriety of the jurat instead of acting suo motu he would not have come to the conclusion he did since the oath was taken at Dar-es-Salaam on 14 April, 2004

  1. I believe that the decision of Mihayo, J. that the affidavit of Leopold Thomas Kalunga filed in support of the application for reference was incurably defective in that it did not state in the jurat the date or place where it was taken, requires the intervention of the highest court in the land since to decide whether the jurat was indeed defective, considering its contents as stated in paragraph 4 above, and also whether an affidavit is incurably defective unless it first shows the place where the oath was taken and followed by the date it was taken

  2. The point in issue is a serious legal problem which I believe only the Court of Appeal can solve so that the lower courts have a precedent which they must follow in respect of what a correct jurat should certain

 

 

13. It is further intended to ask the Court of Appeal to look into the question of whether a judge is entitled to raise a legal issue suo motu and proceed to decide the issue without inviting the parties or their Counsel to address the court on the said issue as I believe that deciding without doing so is denial of natural justice."

 

Let me commence with the application to extend time for leave to appeal to this Court. It is evident from paragraph 7 of Mr. Mhango's affidavit in support of the application, that the application for leave to appeal to this Court was dismissed by the High Court (Manento, J.K.) on the 26.7.2005. Under Rule 43 (b) of the Court of Appeal Rules, another application should have been made to this Court within fourteen (14) days of that refusal. The application was however filed on the 26.8.2005, clearly out of time. Under Rule 8 of the Court of Appeal Rules, the Court has a wide discretion to extend the time even where (as here) the time limited for the filing of leave to appeal has already expired. This discretion, however wide it may be, is a discretion to be exercised judicially having regard to the particular circumstances of each case. The Privy Council in the case of Ratnam Cumarasamy (1965) 1 WLR 8 at page 12, stated as follows in an appeal from the Supreme Court of Malaya

 

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time-table for the conduct of litigation."

 

 

And in the case of Savill v. Southend Health Authority (1995) 1 WLR 1254, Mann LJ. at page 1259, stated as follows -

"The Rules of the Supreme Court are the rules for the conduct of litigation. They are there for the benefit of plaintiffs and the protection of the defendants. Here the rule was not complied with. We are asked to exercise our discretion to waive the application of the rule. There is no material put before us on which we should grant a waiver. I do not see how one can exercise a discretion without material upon which to consider it."

 

I have deliberately reproduced Mr. Mhango's affidavit in order to find out reasons explaining the delay. Manento, J.K. dismissed the application for leave to appeal on the 26.7.2005. After this dismissal, the applicant had fourteen days to file another application in this Court by the 9.8.2005 at the latest. However it was filed on the 26.8.2005, seventeen (17) days later. There is no paragraph in Mr. Mhango's affidavit that seeks to explain the reasons, if any, accounting for the 17__days delay. The learned advocate concentrated on explaining the reasons as to why leave to appeal should be granted. Where there is inaction or delay on the part of the applicant, there ought to be some kind of explanation or materialto enable the Court to exercise the discretion given by Rule 8 of the Court of Appeal Rules.

In our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged ilegality be established, to take appropriate measures to put the matter and there cord straight."

I am satisfied that sufficient reason has been shown for the granting of an extension of time to file an application for leave to appeal to this Court. I have taken into account the length of the delay, (17 days) and that there are serious legal points that need consideration by this Court.

 

In the result, I grant the extension and leave as prayed. The appeal should be lodged within fourteen days from the date of this ruling is delivered. Costs will be in the cause.

 

 

DATED at DAR ES SALAAM this 24th day of April, 2006

 

 

H.R. NSEKELA

JUSTICE OF APPEAL

 

 

I certify hat this is a true copy of th original

 

(S. M. RUMANYIKA)

DEPUTY REGISTRAR