RAMADHANI NYONI v M/S HAULE & COMPANY, ADVOCATES 1996 TLR 71 (HC)

 RAMADHANI NYONI v M/S HAULE & COMPANY, ADVOCATES 1996 TLR 71 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mkwawa J

D

CIVIL APPEAL NO. 29 of 1990

17 January, 1991 E

(Application for leave to appeal)

Flynote

Civil Practice and Procedure - Leave to appeal out of time - Application for - Section

14(1) of the Law of Limitation Act, 1971 (Act 10 of 1971). F

Civil Practice and Procedure - Execution - Stay of, pending appeal - Order 39 rule

5(4) of the Criminal Procedure Act.

Civil Practice and Procedure - Affidavits - Defects in - Whether curable - Section 95

of the Civil Procedure Code. G

-Headnote

The Respondent herein obtained judgment against the present Applicant in the

Resident Magistrate's Court at Kisutu on 30 May 1990. The Applicant, who filed his

notice of appeal outside the permissible period, now applies for leave to appeal against

the Magistrates' Court's decision and a stay of execution pending the intended appeal.

The H Respondent took the point, broadly, that Applicant's affidavit in support of

the application does not state under what provision of the law his application is

brought.

Held:

(i) The application being one for leave to appeal out of time and for stay of

I execution pending the outcome of the appeal, it should reasonably be treated as an

application brought in terms of Section 14(1) of the

1996 TLR p72

A Law of Limitation Act, 1971, and Order 39 rule 5(4) of the Criminal

Procedure Act, respectively.

(ii) In a case where a layman, unaware of the process of the machinery of

justice, tries to get relief before the courts, procedural rules should not be used to

defeat justice and the irregularities in an affidavit are curable in terms of Section 95 of

the Civil Procedure Code. B

(iii) Leave to appeal out of time is granted to the Applicant and stay of

execution pending the appeal is ordered.

Case Information

Case referred to: C

1. Standard Goods Corporation Ltd v Harak Chand Nathan & Co [1950] 17

EA 99

[zJDz]Judgment

Mkwawa J: This is basically an application for leave to appeal out of time to this court

and stay of execution pending the appeal. The applicant was sued by the respondent

D before the resident magistrate's court at Kisutu whereupon judgment was entered

against him. He now seeks to appeal to this court against the decision of the trial

court. The applicant has, however, learnt that as he has filed his intended appeal

outside the legal permissible period. He has therefore to obtain leave of this court to

do so and E hence this instant application. This matter proceeded ex-parte because

the respondent's advocate refused service summons on the grounds that this

application was set down for hearing on 11 April 1991 and not 15 January 1991. This

being the state of affairs I find F myself compelled to mention that this new date was

set down consequent to the applicant's application for an only hearing date under

certificate of urgency.

The applicant in his affidavit in support of this application has deposed that judgment

against him was delivered on 30 May 1990. On 9 June 1990 he went to the Civil

Registry G of the Court of the Resident Magistrate at Kisutu with his relevant papers

to have them filed for his intended appeal to this court. He further avers that the

court official refused the said papers on the grounds that time for his appeal had

already expired.

On rebuttal the respondent has through his counter-affidavit challenged this instant

H application inter alia on the following grounds:

(i) The affidavit does not disclose source of information.

I (ii) The chamber summons is misconceived and/or founded on no law.

1996 TLR p73

MKWAWA J

(iii) The applicant has not raised sufficient cause to support this application.

A

I have carefully considered the arguments raised from both sides. There is no doubt or

rather dispute, as it is rightly pointed by the respondent in his counter-affidavit that

the B application does not state under what provision of the law this application is

brought. But this state of affairs is understandable as the applicant is a layman and had

no assistance from a counsel in bringing action. As this is an application for leave to

appeal C out of time and stay of execution pending the determination of the

intended appeal, it is reasonable and fair to treat it as an application brought under

the provisions of s 14(1) of the Law of Limitation Act 10 of 1971 and Order 30 Rule

5(4) of the Criminal Procedure Act respectively. D

I have further noted other irregularities in the deponent's affidavit taking into

account the most celebrated case of Standard Goods Corporation Ltd v Harak Chand

Nathan & Co (1) where the defunct Court of Appeal for Eastern Africa held that

when an affidavit is made in information it should not be acted upon by any court

unless the sources of E information are specified. While dwelling on this matter I

understand that procedural rules are intended to serve as the hand maiden of justice

and not to defeat or frustrate it, and it can be denied that the strict application of the

rule in question may in certain cases amount to legal formalisation. In the light of the

foregoing I am of the settled view F that this Court like any other court worthy of

the name has the duty to look into the matter sympathetically with a broad mind and

most realistic approach. In order to do justice to the case, especially in a case where a

layman, unaware of the process of the machinery of justice, tries to get remedy

procedural rules should not be used to defeat G justice. In my view the irregularities

in the affidavit are curable by the provisions of s 95 of the Civil Procedure Code.

The basic point for consideration and determination in the instant application is

whether the applicant had reasonable or sufficient cause on which this court may

exercise its H discretion and extend the time for appeal as there are no reasons why I

should disbelieve the applicant's explanation. Having regard to all the facts and the

circumstances of this case, I find that the applicant has shown sufficient cause for

allowing his application. In the result leave to appeal of time and stay of execution I

pending the determination of the appeal are accordingly granted. The applicant

should

1996 TLR p74

file his appeal to this court within twenty one days (21) from this date upon paying

the A usual fees in time.

The matter to be mentioned before the Registrar on 2 February 1991 with a view to

fixing a hearing date. The results of this ruling should be brought to the notice of the

respondent. Order accordingly. B

1996 TLR p74

C