COOPERATIVE AND RURAL DEVELOPMENT BANK v FILTON (TANZANIA) LIMITED 1993 TLR 284 (HC)

 

COOPERATIVE AND RURAL DEVELOPMENT BANK v FILTON (TANZANIA) LIMITED 1993 TLR 284 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mackanja J

E CIVIL CASE NO. 122 OF 1993

6 December, 1993

Flynote

F Civil Practice and Procedure - Adjournment - Advocate of a party engaged in

another court - Whether ground for adjournment - Order 17 Rule 1(2)(c) Civil

Procedure Code and the mischief the rule was intended to curb.

-Headnote

G When the matter came for hearing the court was informed that one of the

advocates had travelled to appear before the Court of Appeal of Tanzania. An

application for adjournment of hearing the matter was resisted on the ground that

appearance by an Advocate before another H court is not sufficient cause for an

adjournment as provided in Order 17 Rule 1(2)(c) of the Civil Procedure Code. The

learned Judge considered the mischief this rule is intended to curb.

Held: (i) The purpose for which paragraph (c) of the proviso to Rule 1(2) of

Order 17 of the Civil Procedure Code was intended was to prohibit advocates using

their failure to I maintain their diaries as a ground for adjournment;

1993 TLR p285

MACKANJA J

(ii) These provisions do not cover situations which are beyond the control

of the A Advocate;

(iii) Where the Court of Appeal amends its calendar as a result of which an

Advocate finds himself having to appear before both the Court of Appeal and this

Court, he is bound to appear before the superior Court;

(iv) Since the change of dates was made without the prior knowledge of

learned Counsel B and since those changes were made well after this application was

fixed for hearing it was not the Advocate's fault to find himself having to appear

before the Court of Appeal and this Court on the same date.

Case Information

Order accordingly.

No case referred to. C

Chandoo, for the defendants.

E.D. Kisusi, for the plaintiff.

[zJDz]Judgment

Mackanja, J.: When this matter came for hearing of a Chamber application in which

the applicants D pray that an order be made to consolidate the hearing of the several

cases listed in the Chamber summons, Mr Chandoo, Advocate, informed the Court

that Mr Mohora, one of the defence lawyers had travelled to Zanzibar to appear

before the Court of Appeal of Tanzania. In that connection he E applied for an

adjournment for several days in that they expected Mr Mohora from Zanzibar the

next day.

Mr Kisusi, learned Counsel for the plaintiff strongly objected to the application. His

reasons in so objecting are quite sound; for as he said, appearance by an Advocate

before another Court is not F sufficient cause for an adjournment. This, indeed, is

what para (c) of the provise to Rule 1 sub-rule (2) of Or XVII provides. It states:

`The fact that the Advocate of a party is engaged in another Court shall not be

ground for adjournment.' G

I nonetheless granted the application for adjournment and reserved my reasons. I

now give the reasons.

The purpose for which, in my view, para (c) of the proviso to Rule 1(2) of Order XVII,

was meant to H cover was to prohibit Advocates using their failure to maintain their

diaries as a ground for adjournment. This is not one of those cases; for as Mr Chandoo

stated in reply, these provisions do not cover situations which are beyond the control

of the Advocate. Obviously, where the Court of I

1993 TLR p286

MACKANJA J

A Appeal amends its calender as a result of which an advocate finds himself having

to appear before both the Court of Appeal and this Court, he is bound to appear

before the superior Court. Since the change of dates was made without the prior

knowledge of learned Counsel, and since those changes were made well after this

application was fixed for hearing, it was not Mr Mohora's B fault to find himself

having to appear before the Court of Appeal and this court on the same date. I would

have upheld Mr Kisusi's objection if, knowingly, Mr Mohora had participated in

fixing dates for the hearing of this application so as to coincide with his appearance

before the Court of Appeal. In C my opinion, therefore, Government Notice No 508

of 1991 which publishes the amendments in the Civil Procedure Code which Mr

Kisusi, learned Counsel for the plaintiff, seeks to rely upon does not apply to the

circumstances of this case.

D On the other hand, learned Counsel for the plaintiff sought to defeat the

application for an adjournment on the premise that filing of an application for

consolidation of summary suits is untenable unless the defendants seek and obtain

leave to defend first. I think there are two aspects involved here: the right to defend

oneself, and secondly, to have the claim consolidated so that the E defendant does

not have to file separate application, to defend themselves in each civil case. What the

defendants are enjoined to do now is to challenge the merits of the claim without

leave of the Court. I do not see in that desirability an implied condition that the

defendants are also barred from applying to the Court for an order that the several

claims against them, if they be of the same F nature, be consolidated.

Since an application to consolidate the several civil cases does not affect the merits of

the claim C against the defendants, it will be expedient that the defendants be heard

if they can show sufficient cause.

G In the result the objections are dismissed. Costs shall be in the cause.

1993 TLR p287

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