Court name
High Court of Tanzania

National Bank of Commerce vs Cosmas M. Mukoji () [1986] TZHC 26 (21 November 1986);

Law report citations
1986 TLR 127 (TZHC)
Media neutral citation
[1986] TZHC 26

Mwalusanya, J.: The applicant Cosmas M. Mukoji has lodged two combined applications before   E this court.  First is the application under s.14(1) of the Law of Limitation Act, 1971 for leave to lodge an application for review out of time.  Second is the application for review under Order 42 and section 48 of the Civil Procedure Code Act No. 49 of 1966 as amended by Act No. 11 of 1976.
  F As for the application for leave to apply out of time I note that the application for review should have been lodged within 30 days from the day the judgment was delivered on 24/4/1986.  This application was lodged on 7/8/1986.  A delay of about two months.  That is not a very inordinate delay.  The applicant says that the delay was due to the fact that   G he is ignorant of law and so he had to go around to persuade friends to help in drafting the necessary affidavits and chamber summons.  The explanation given is understandable.  In view of the fact that the delay was not too inordinate, I granted orally the leave to lodge the application for review out of time. H
As regards the application for review the facts are as follows.  In April 1986 the applicant who is a judgment-debtor applied to raise the attachment of his house allegedly because it was under a mortgage.  The application was dismissed as it was found as a fact that the house in question was not under a mortgage as claimed.  He now states in the present  I application for review that in fact he should

  A have applied to raise the attachment on the ground that the house was a residential one used by him and his family.
It is common ground that under s.48(a) of the Civil Procedure Code Act No. 49 of 1966 as amended by Act No. 11 of 1976, a residential house used by the judgment-debtor and his family is not liable to attachment.  Counsel for the   B respondents Mr. Rutabingwa feebly argued that the applicant is not using the house for residential purposes but renting it out.  I adjourned the case for a day to give the respondent's counsel time to bring evidence as to whether the house was indeed rented out or not.  The respondent's counsel failed to bring such evidence and in fact during the hearing he  C intimated that he was withdrawing the contention that the house is rented out.  So the position is that it is uncontroverted that the house in dispute is being used as a residence by the judgment-debtor and his family.  It is therefore not liable to attachment.
  D It is conceded by this court as ably argued by respondent's counsel that the application for review is irregular in that there is no affidavit accompanying the application but a mere statement of facts.  But I hold that the irregularity is not fatal.  There is no magic in affidavits and so we should not tend to canonize them.  The oral statements which applicant made in court were sufficient to support the chamber application instead of the affidavits. E
Counsel for the respondent also argued that for any application for review there ought to be a discovery of a new fact which was not within the knowledge of the applicant at the first trial.  He said that in here the fact that the house in dispute  F is a residential one was within the knowledge of the applicant at the first trial and so the application for review is incompetent and ought to be rejected.
I agree that the fact that the house is residential was within the knowledge of the applicant at the first trial.  But nevertheless the application is competent.  There are two other legs under which an application for review can be made: G
   (a)   If there is an error apparent on the face of the record;
   (b)   If there is any other sufficient reason.
  H I would and do hereby allow this application under any of these two legs.  I ought on the earlier judgment of 24/4/1986 to have had taken judicial notice of the fact that the house was residential and thus should have raised the attachment.  I correct that mistake now. I
I wish to make one last but vital observation.  I find that these

  A two applications were in fact unnecessary.  The applicant ought to have simply filed an application for an order to raise the attachment of the house under s. 48(e) of the Civil Procedure Code.  This application would not have been res judicate as the matter in the former application concerned a different matter that is whether the house was under a mortgage or not.  The issue in the present case is patently different.  The applicant was obviously wrongly advised. B
Be that as it may, the application is granted.  The attachment of the house is raised as prayed.  Each party to bear its own costs of this application.
Order accordingly. C

D