CO-OPERATIVE AND RURAL DEVELOPMENT BANK v FILTON (TANZANIA) LIMITED 1996 TLR 122 (HC)

 

CO-OPERATIVE AND RURAL DEVELOPMENT BANK v FILTON (TANZANIA) LIMITED 1996 TLR 122 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mackanja J

G

CIVIL CASE NO 122 OF 1993 H

10 December, 1993

Flynote

Civil Practice and Procedure - Consolidation of civil cases - Oral application for -

Whether I competent - Rule 2 of Order 43 of the Civil Procedure Code.

1996 TLR p123

-Headnote

Filton (Tanzania) Ltd is the defendant in a main action and the Applicant in this A

application. The Co-operative and Development Bank is the plaintiff in the main

action and the Respondent in this application.

The Applicant sought an order that he be allowed to proceed with an oral application

for the consolidation of civil cases under various case numbers. The application was B

brought under the proviso to Rule 2 Order 43 of the Civil Procedure Code, which

states that all applications under the Code shall be made by chamber summons

supported by affidavit `provided that the court may where it considers fit to do so,

entertain an application made orally ....'.

Held:

C (i) An application by chamber summons supported by affidavit gives two

important opportunities to the respondent: notice of the remedy which the applicant

seeks, and the course the applicant will take in establishing the justification for the

remedy sought.

(ii) Unless there is something approximating an emergency, the Court will

not lightly abandon a procedure and a practice which have been tested by time and D

are well-founded.

(iii) An oral application may accordingly be allowed in very rare and noncontentious

litigation, or where prompt action is required to protect the parties'

interests, such as immediately upon the pronouncement of judgment.

(iv) There is neither urgency nor the need to depart from the established

rules of E practice and procedure.

(v) The application to proceed orally is dismissed with costs.

(vi) The defendant is granted leave to lodge an application by chamber

summons supported by affidavit, in the normal manner, with costs to be in the cause.

F

Case Information

Ordered accordingly.

Kisusi, for the plaintiff.

Chando, Mchora and Kanabar for the defendant.

[zJDz]Judgment

Mackanja J: G

Mr Mchora, one of the learned defence counsel, is applying for an order that he be

allowed to proceed with an oral application for consolidation of Civil Cases No 122,

123, 124, 125 and 126, all of 1993. This application is made under the proviso to Rule

2 of H Order 43 of the Civil Procedure Code. Rule 2 makes it mandatory, unless

otherwise provided, that all applications under the Civil Procedure Code shall be

made by a chamber summons supported by affidavit:

I 'Provided that the court may where it considers fit to do so, entertain an

application made orally....'

1996 TLR p124

MACKANJA J

An oral application may also be made where all the parties to the suit by a written A

memorandum signed by them or their advocates consent to the order applied for.

Basically the oral application is sought because the written application has not been

admitted by the Honourable the Principal Judge. In that connection Mr Mchora

applied to B the court to withdraw all the papers relating to the written chamber

application which was not admitted.

Mr Kisusi, learned counsel for the plaintiff/respondent, does not oppose the

withdrawal of the written documents relating to the written application. He,

however, opposes the C institution of the oral application on the grounds that the

defence has neither suggested nor indicated why this is a fit matter for an oral

application as opposed to the normal court practice of written applications supported

by affidavit. Learned counsel has argued, and I think quite correctly, that there must

be very good reasons why a party to a civil D action will be allowed to institute

proceedings save according to the general practice of the Court. And since the proviso

referred to grants discretionary powers, Mr Kisusi's contention that that discretion

should, as is normal practice, be exercised judiciously, is also sound.

Learned counsel for the plaintiffs has raised another point, that the application, if

made E orally, will affect six cases. That the mere number of cases entails the

consideration of a collosal amount of facts in order to determine whether the six cases

are fit for consolidation. He has raised concern that it is extremely difficult to digest

orally facts involving six cases. There is no doubt that if the application is made in

writing the F respondents will get advance notice which will enable them to prepare

themselves; this is a fact which cannot be over emphasized. And, of course, as learned

counsel for the plaintiffs/respondents has pointed out, instructions which were given

by the Honourable G the Principal Judge, if any, are of an administrative nature an

are therefore not binding on this Court. This argument brings us to one important

consideration; under what circumstances can an oral application be made?

Mr Mchora argues that the circumstances which are required by the proviso came in

place after the honourable the Principal Judge made the directive. I have gone

through the record and I find no such instructions from the Honourable the Principal

Judge, which form part of the record of this case. It is important to note, however,

that this application is brought under s 95 of the Civil Procedure Code. According to

Mr Mchora, applications of this nature are meant to provide avenues of justice which

are not available in the

1996 TLR p125

MACKANJA J

orders and that, ipso facto, this application falls under Order 43 Rule 3. I have

examined A the law cited and I find nothing from what Mr Mchora has said which

would justify this application to be proceeded with orally and not according to the

general practice of this Court whereby applications are made by Chamber Summons

supported by affidvit. B

The nature of civil litigation is such that it offers equal opportunity to both parties. It

is not one of surprises. Every stage in the process of litigation is regulated by rules

which create an elaborate procedure for pleading. As a general rule, the defendant or

respondent, as the case may be, is entitled to know the case against him by advance C

notice by way of a summons of whatever nature. And by the established practice of

this Court all chamber summonses are supported by affidavit. This procedure has not

been maintained over the ages for nothing. For one thing, an affidavit is evidence

which sets D out how the applicant intends to establish the justification for the

remedy he seeks from the court. The affidavit also provides evidentiary proof of what

it contains. So that an application by chamber summons supported by affidavit gives

two important opportunities to the respondent: notice of the remedy which the

applicant seeks and the E course the applicant shall take in establishing his

justification for the remedy. Unless there is something like an emergency, therefore,

the Court will not lightly abandon a procedure and practice which have been tested

by time and which are well-founded. In this regard an oral application may be

allowed to proceed in very rare and non-contentions litigation; or where it is

necessary to take prompt action for the purpose F of safeguarding the interest of the

parties, especially immediately after judgment is pronounced. The purpose of such an

application, therefore, should be designed to maintain the status quo such as during

intermediate periods between execution of decree and hearing of an appeal against

such decree; to prevent prejudice to the G applicant and to prevent one party from

outwitting the opposite party by maintaining a fair balance between them.

I see neither the urgency nor the need in the instant application which justifies a

deviation from an established procedure and general rule of practice. In the result the

application H to proceed orally fails and is dismissed with costs. It is directed that

the defendant may, if he so wishes, lodge an application by chamber summons

supported by affidavit in line with the established practice of this Court. Costs shall be

in the course. I

1996 TLR p126

A