PRINCIPAL SECRETARY, MINISTRY OF DEFENCE; NATIONAL SERVICE v DEVRAM VALAMBHIA 1992 TLR 185 (CA)

PRINCIPAL SECRETARY, MINISTRY OF DEFENCE; NATIONAL SERVICE v DEVRAM VALAMBHIA 1992 TLR 185 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Kisanga JJA, Ramadhani JJA

3 July, 1992

Flynote

Civil Practice and Procedure - Court of Appeal Rules - Reference - Point of law involved - Whether the said point constitutes sufficient reason to allow the reference.

-Headnote

This was a reference arising from the ruling of a single judge of the Court of Appeal granting an application to strike out a notice of appeal for failure to take essential steps in the proceedings and at the same time refusing a counter application for extension of time to take such essential steps.

During the hearing counsel for the applicant urged the Court to allow the reference on the ground that the intended appeal involved a point of law. The Court considered whether the said point of law involved constituted "sufficient reason" in terms of rule 8 of the Court of Appeal Rules.

Held: 

(i) Where, as here, the point of law at issue is the illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute "sufficient reason" I within the meaning of rule 8 of the Rules for extending time;

(ii) 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 illegality be established, to take appropriate measures to put the matter and the record right.

Case Information

Appeal allowed.

Mrema, for the applicant

Marando, for the respondent.

[zJDz]Judgment

Kisanga, Makame and Ramadhani, JJ.A.: This is a reference arising from the ruling of a single Judge of this Court granting an application to strike out a notice of appeal for failure to take essential steps in the proceedings, and at the same time refusing a counter application for extension of time to take such essential steps.

It was common ground that the Principal Secretary Ministry of Defence and National Service, failed to serve on Mr. D.P. Valambhia a copy of his notice of appeal and a copy of his application to the Registrar, High Court, for copy of proceedings in respect of an intended appeal against the ruling of the High Court requiring him to comply with a garnishee order of that Court within three weeks.

It was claimed on behalf of the Principal Secretary that one Mr. Mtangi of the Attorney-General's Chambers had been duly instructed to serve copies of the said documents on the opposite party but he failed to do so. However, the said Mr. Mtangi was not made to file an affidavit to confirm that he was duly instructed to serve the documents on the opposite party and if so why he did not comply therewith. In refusing the counter-application for extension of time the learned single judge took the view that no sufficient reason had been disclosed in terms of rule l8 of the Court of Appeal Rules because the information so far adduced through the affidavits did not rule out the possibility that the said instructions might not have been given to Mr. Mtangi in due time. We, too share that view, and if there was nothing also we would have so difficulty in dismissing this reference.

But Mr. Mrema, the Director of Civil and International Law Department in the Attorney-General's Chambers who appeared for the Principal Secretary Ministry of Defence and National Services, had urged us also to allow the reference on the ground that the intended appeal raises an important point of law. The said point of law, he went on, concerned the interpretation of rule 2A of Order 21 of the Government Proceedings (Procedure) Rules 1968 (G.N. 376 of 1968) whether in terms of that rule the garnishee order made by the High Court came within the ambit of section 15 of the Government Proceedings Act, 1967 which prescribes the mode of satisfying or executing Court orders against the Government or Government offices.

It is noted that this point was the subject of considerable submissions by counsel in the High Court and the learned High Court judge in his ruling dealt with it at length, although the single judge of this Court in his ruling did not allude to it at all.

Before us Mr. Mrema submitted, in effect, that the High Court put a wrong interpretation on rule 2A of order 21 of the Government Proceedings (Procedure) Rules 1968 (G.N. 376 of 1968), and thereby came to the erroneous conclusion that the decree could properly be executed by issuing a garnishee order when it could not.

Mr. Mrema strongly felt that this Court should declare what the law is on the matter. On the other hand Mr. Marando, the learned advocate appearing for Mr. Valambhia, ardently maintained that the alleged point of law did not in fact arise because the garnishee order in question did not come within the ambit of Section 15 of the Government Proceedings Act 1967. Upon a glance through the record, and having regard to the submissions by counsel for both sides, we think that the matter is arguable; a point of law is involved and the decision on it may go one way or the other. The question which falls for consideration F now is whether the said point constitutes "sufficient reason" in terms of rule 8 of the Court of Appeal Rules to warrant the exercise of discretion in favour of the Principal Secretary Ministry of Defence and National Service to extend the time for him to serve copies of the said documents on the opposite part.

The same question arose in the case of The Commissioner of Transport v The Attorney-General of Uganda and Another [1959] E.A. 329 involving somewhat similar facts. There the Court of Appeal for Eastern Africa refused to extend the time and in the course of doing so it said, inter alia:

As to the argument that a point of law of fundamental importance was at issue, it is to be noted that this contention was not supported by the respondent. We were not impressed by the argument and thought that there would be little difficulty in testing the matter in I other proceedings. We saw no reason to hold that the importance of the point at issue was such as to constitute sufficient reason for extension of time under r. 9 of the Appeal Rules. In other words the Court refused to extend time because the point of law at issue was not of sufficient importance to justify the extension. The corollary of that is that in some cases a point of law may be of sufficient importance to warrant extension of time, while in others it may not.

The point of law at issue in that case was whether contracts of a certain type required registration as a floating charge under the law and, as shown above, the Court held that the point was not of sufficient importance to warrant extension; it taking the view that the matter could be tested in other proceedings. In other words the Court was saying that the opinion of the lower Court on the question whether that type of contracts required registration as a floating charge was not of sufficient importance to warrant extension of time and the decision embodying that opinion should remain on record.

In the case before us, however, the point at issue, in effect is the illegality or otherwise of the garnishee order as a means of executing the Court order against the Government. For, should it turn out that the garnishee order is within the ambit of Section 1 of the Government Proceedings Act, 1967 as urged by counsel for the Principal Secretary Ministry of Defence and National Service, then the order is illegal and hence a nullity. We think that where, as here, the point of law at issue is the illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute "sufficient reason" within the meaning of rule 8 of the Rules for extending time. To hold otherwise would amount to permitting a decision, which in law might not exist, to stand. In the context G of the present case this would amount to allowing the garnishee order to remain on record and to be enforced even though it might very well turn out that order is, in fact a nullity and does not exist in law. That would not be in keeping with the role of this Court whose primary duty it is to uphold the rule of law.

It should be noted that the position in this case is distinguishable from that in the case of The Commissioner of Transport v The Attorney-General of Uganda and Another earlier cited. There the point at issue was not the illegality of the type of contracts in question; it was simply the correctness or otherwise of the opinion whether or not that type of contracts required registration as a floating charge. Indeed the refusal by the Court to extend time amounted to allowing the decision being challenged to remain on record and to be enforced. That was perfectly in order, for, the decision was itself valid in law, while the issue whether or not the opinion expressed therein is erroneous should, in the Court's own discretion, await decision in other proceedings. Such is not the position in the present case where the point at issue is the illegality of the decision being challenged. 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 illegality be established, to take appropriate measures to put the matter C and the record right.

There were certain weaknesses and failures on the part of the Principal Secretary Ministry of Defence and National Service, and some members of the Attorney- General's Chambers in their handling of this matter. However, we think that the importance of the point of law at issue outweighs our consideration and such failures and weaknesses. In the result, the reference is allowed. The notice of appeal is restored and The Principal Secretary Ministry of Defence and National Service is to serve the opposite party with copies of the documents in question within four days of his receipt of this ruling. We make no order as to costs.

Appeal allowed.

1992 TLR p189

F