THE PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE v DURAM P. VALAMBHIA 1992 TLR 387 (CA)

THE PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE v DURAM P. VALAMBHIA 1992 TLR 387 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Kisanga JJA, Omar JJA, Mnzavas, JJA

18 December, 1992

Flynote

Civil Practice and Procedure - Court of Appeal Rules - Letter to Registrar applying for copy of proceedings - Copy of letter not served on respondent - Whether applicant is duty bound E to serve copy of letter to Registrar to respondents - Whether there is a time limit within which to serve copy of the letter - Rule 83 (i) of the Court of Appeal Rules construed.

Civil Practice and Procedure - Court of Appeal Rules - Notice of motion does not specify F relief sought - Accompanying affidavit specifies relief sought - Oral address specifies relief sought -Whether the affidavit and/or the oral address specifying relief sought can take care of the inadequacy in notice of motion.

Civil Practice and Procedure - Court of Appeal Rules - Application for extension of time to serve respondents with copy of letter to Registrar applying for copy of proceedings not mentioned in notice of motion - Relief sought specified in affidavit and mentioned when orally addressing the Court - Whether application for extension of time properly before the court.

Civil Practice and Procedure - Court of Appeal Rules - Payment of court fees and security for costs by Government - Government expressly exempted from paying court fees in respect of criminal applications and criminal appeals before the Court of Appeal - Rules are silent on payment of court fees and security for costs by Government in respect of civil I matters before Court of Appeal Whether Government to pay court fees and security for costs in respect of civil matters before the Court of Appeal.

Civil Practice and Procedure - Court of Appeal Rules - Long established tradition that Government does not pay court fees and security for costs - Whether such tradition can be a basis for exempting Government from paying court fees and security for costs in respect B of civil matters before the Court of Appeal.

Civil Practice and Procedure - Court of Appeal Rules - Application for extension of time to pay court fees and security for costs - Illegality of decision being challenged - Whether sufficient reason to allow the application.

-Headnote

Mr. D.P. Valambhia won a case in the High Court which was filed by M/s Transport Equipment Ltd. (TEL). In awarding relief to Mr. Valambhia the High Court made certain orders against the Government of Tanzania (The Ministry of Defence and National Service) which was creditor to TEL. The High Court ordered the Principal Secretary Ministry of Defence and National Service to comply with a garnishee order which, inter alia, required the Government to pay the sum of approximately US $ 39,823,543.25 to Mr. Valambhia's overseas bank account and that such payment was to be effected within three weeks of the order.

The appellant sought to challenge the order of the High Court on the grounds, among others, that no opportunity was afforded to the Government to be heard and that there was some illegality involved in respect of the order.

At the hearing of the appeal, counsel for the respondent took a preliminary objection to the appeal based on non-compliance with rules 76, 77 and 83 of the Court of Appeal Rules. Counsel contended that the appeal was time-barred. It was argued that the Rules were not complied with in that a copy of the letter to the Registrar applying for the proceedings was not served on the respondent. It was further pointed out that a notice of motion by the appellant before a single Judge of the Court of Appeal did not specify the relief sought, i.e, extension of time within which to serve the respondents with a copy of the letter to the Registrar. A number of other aspects were considered including whether or not the Government has to pay court fees and security for costs in respect of civil matters before the court of Appeal and if so whether there was sufficient reason to extend time to allow the Government pay court fees and security for costs.

Held: 

(i) There must be a time limit within which the appellant is to serve the respondent with a copy of the letter to the Registrar. We think that the period of 30 days within which the appellant is required under rule 83(1) to apply to the Registrar for a copy of the proceedings should be construed to be co-extensive with the period within which the appellant has to send a copy of that letter to the respondent;

(ii) a notice of motion and the accompanying affidavit are in the very nature of things complementary to each other, and it would be wrong and indeed unrealistic to look at them in isolation. The proper thing to do is to look at both of them and if on the basis of that it is clear what relief is being sought then the Court should proceed to consider and determine the matter, regard being had to the objection, if any, raised by the opposite party;

(iii) an oral address can take care of the inadequacy in the notice of motion by referring specifically to the relief being sought;

(iv) the appellant's application for extension of time to serve the respondent with a copy of the letter to the Registrar applying for a copy of the proceedings was both before the single judge and also before the full court upon the reference from the decision of the single judge;

(v) the silence in the Court of Appeal Rules on whether or not Government has to pay court fees in respect of civil matters before the Court of Appeal can only be construed to mean that the framers of the Rules intended that the Government should pay court fees in civil cases. Likewise the Government is obliged to pay security for costs there being no express or implied exemption;

(vi) since the long established practice that the Government does not pay court fees is not sanctioned in law it can never acquire legal legitimacy however long it might be;

(vii) where the point of law at issue is the illegality or otherwise of the decision being challenged, that is a point of law of sufficient importance to constitute a sufficient reason within rule 8 of the Court of Appeal Rules to overlook noncompliance with the requirements of the Rules and to enlarge the time for such compliance. The same applies here.

Case Information

Preliminary objection overruled.

Mrema, for the appellant.

Maira and Marando, for the respondent.

1992 TLR p390

[zJDz]Judgment

Kisanga, Omar and Mnzavas, JJ.A.: In Dar es Salaam High Court Civil Case A No. 210 of 1989 the plaintiff, Messrs. Transport Equipment Ltd. (TEL) filed a suit against the defendant Mr. D.P. Valambhia. In answer to the plaint Mr. Valambhia filed a written statement of defence in which he denied the claim and, in addition, raised a counter-claim against TEL. TEL did not file a reply to the written statement of defence, nor a written statement of defence to the counter-claim. Furthermore, on the date fixed for hearing, the plaintiff's side could not adduce evidence in support of its case either. Whereupon the High Court (Rubama, J.) upon application by Mr. Valambhia's Counsel, gave judgment for Mr. Valambhia, dismissing the plaintiff's claim and allowing the defendant's counter-claim. In allowing Mr. Valambhia's counter-claim against TEL, the learned judge also ordered the Government of Tanzania to pay to Mr. Valambhia and his family, certain monies owing from the Government of Tanzania to TEL. The monies to be thus paid to Mr. Valambhia were part of the proceeds of a contract between the said Government of Tanzania and TEL. The Government was further ordered to pay these monies to Mr. Valambhia's designated overseas bank account.

Upon application by Mr. Valambhia for execution of the judgment, the High Court (Msumi, J.) granted a garnishee order requiring, inter alia, the Government of Tanzania to pay the sum of approximately US Dollars 39,823,543.25 to Mr. Valambhia's overseas bank account. Upon further application by Mr. Valambhia the High Court F (Rubama, J.) ordered the Principal Secretary, Ministry of Defence and National Service to comply with the garnishee order within three weeks. That is to say, the High Court ordered the Principal Secretary to comply with the garnishee order which, inter alia, required the Government to pay the sum of approximately US Dollars 39,823,543.25 G to Mr. Valambia's overseas bank account, and that he should effect such payment within three weeks of the order. It is from that order that this appeal now arises.

At the hearing of the appeal the appellant, the Principal Secretary, Ministry of Defence and National Service, was represented by Mr. F. Mrema, Director, Civil and International Department in the Attorney-General's Chambers assisted by Mr. S. Salula, State Attorney. Mr. H. Maira and Mr. M. Marando, learned advocates, appeared for the respondent, Mr. Valambhia.

Counsel for the respondent took a preliminary objection to the appeal which objection is based on non-compliance with rules 76, 77 and 83 of the Court of Appeal Rules. Mr. Maira submitted in effect that the appeal was time barred in that it was not instituted within 60 days of the date of the notice of appeal as required by rule 83 (1) of the Rules. In order to appreciate fully this submission by Counsel, it is necessary to give a brief account of the background to this matter.

The ruling being appealed from was delivered on 10.5.91. The notice of appeal was given in time on 17.5.91, and the letter to the Registrar applying for a copy of the proceedings was also sent in time on 11.5.91. However, copies of the said notice of appeal and of that said letter to the Registrar were not sent to the respondent, and after the prescribed time for serving these documents on him had expired, the respondent applied to a single judge of this Court to strike out the appellant's notice of appeal on the grounds of failure to serve copies of these two documents on him.

In a counter-application, however, the appellant asked for extension of time in order to serve the said documents on the respondent. The single judge allowed the application to strike out the notice of appeal, and rejected the counter-application for extension of time. Upon a reference from the decision of the single judge, however, the notice of appeal was restored and the appellant was granted extension of time during which to serve the documents on the respondent, which he did.

According to Mr. Maira, the appellant so far, has only sought and obtained extension of time to serve on the respondent a copy of the notice of appeal. No extension of time has been obtained or sought by the appellant to serve the respondent with a copy of the letter to the Registrar applying for a copy of the proceedings. In these circumstances therefore, Counsel contended that although the Registrar did issue a certificate in terms of rule 83 (1) of the Rules, that certificate was issued in error, and the appellant was not entitled to rely on the proviso thereto to exclude the time which was necessary for the preparation and supply of a copy of the proceedings to him. If the Registrar's certificate is excluded, Counsel went on, the institution of the appeal is long time barred because it was not instituted within 60 days of the date of the notice of appeal, and the appellant H has not taken the necessary steps to avail himself of the protection under the proviso to rule 83 (1).

Mr. Mrema's reply to this submission was twofold. First, he submitted that there was no fixed period within which he was bound to serve the respondent with a copy of the letter I to the Registrar. Contrasting this position with that under rule 77 of the rules whereby the appellant is required to serve the respondent with a copy of the notice of appeal within seven days of the date of the notice of appeal, the learned Counsel submitted that there is no comparable rule requiring the appellant to serve a copy of the letter to the Registrar on the respondent within specified time. In his view, the time to serve the respondent with this document was open and he could serve it on him at any time.

In the alternative Mr. Mrema contended that if there was any fixed time for such service, then he did apply for extension of such time and that his application, though rejected by the single judge of this Court, was granted by the full Court upon a reference from the decision of the single judge.

In response to the first limb of Mr. Mrema's submission, Mr. Maira submitted that upon construction of rule 83 (2) of the Rules, a copy of the letter to the Registrar applying for copy of proceedings must be served on the respondent within 30 days of the date of the decision being appealed from. The relevant part of Rule 83 of the Court of Appeal Rules provides that:

83 - (1) subject to the provisions of Rule 122, an appeal shall be instituted by lodging in E the appropriate registry, within sixty days of the date when the notice of appeal was lodged -

(a) a memorandum of appeal, in quintuplicate;

(b) the record of appeal, in quintuplicate;

(c) the prescribed fee; and

(d) security for the costs of the appeal, save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery of that copy to the appellant.

(2) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and a copy of it was sent to the respondent.

We think that Mr. Mrema's view is untenable when he says that there is no specified period within which to serve the respondent with a copy of the letter to the Registrar. To uphold this submission would make it difficult or impossible to determine when a respondent to an intended appeal can seek remedy against the appellant for non-compliance with this requirement. Indeed it might render this requirement meaningless in so far as the respondent is concerned.

For instance, where the respondent seeks to have the notice of appeal struck out for failure by the appellant to institute the appeal within 60 days of the date of the notice of appeal, the appellant can always get away with it by saying that he has not received a copy of the proceedings from the Registrar even though the letter to the Registrar applying for such proceedings has not been sent to the respondent, and he could go on relying on such a defence indefinitely. In our view, that cannot have been the aim of the proviso to rule 83 (1). There must be a time limit within which the appellant is to serve the respondent with a copy of the letter to the Registrar. We think that the period of 30 days within which the appellant is required under rule 83 (1) to apply to the Registrar for a copy of the proceedings should be construed to be co-extensive with the period within which the appellant has to send a copy of that letter to the respondent. That serves to ascertain the period after which the respondent to an intended appeal can apply to have the notice of appeal struck out for failure to institute the appeal. What is, he can do so after 60 days of the notice of appeal, and the appellant can raise the defence that he has not yet received such proceedings, only if he had sent to the respondent a copy of his letter to the Registrar applying for those proceedings, and that a copy of that letter was so sent within 30 days of the date of the decision being appealed from.

Having said that, it is necessary to point out here, however, that Mr. Maira cannot be right when he submitted that the Registrar issued to the present appellant the certificate under rule 83 (1) in error because the appellant had not served the respondent with a copy of the letter to the Registrar. It is undisputed that the appellant's application to the Registrar was made within 30 days of the date of the decision being appealed from as required by rule 83 (1). Therefore, the Registrar was perfectly entitled to issue the certificate as he did, and we could find nothing wrong with that. The issue whether or not the appellant can rely on the certificate, as he was trying to do in this case, is quite a different matter. As amply demonstrated above that issue depends on whether a copy of the appellant's letter to the Registrar applying for a copy of the proceedings was sent to the respondent within 30 days of the date of the decision being appealed from.

In answer to Mr. Mrema's alternative submission that the application for extension of time to serve the document in question on the respondent was before the single judge and that it was part of the subject matter of the reference from the single judge to the full Court, Mr. Maira strongly contended that such application was neither before the single judge nor before the full Court.

The record shows that the matter was brought before the single judge in Civil Application No. 18 of 1991 by a notice of motion the relevant part of which reads:

NOTICE OF MOTION

(Under Rule 8 and 77 (i) of the Tanzania Court of Appeal Rules 1979)

TAKE NOTICE that on the ................ day of ...... 1991 at 9.00 o'clock in the morning or soon thereafter as he can be heard the Applicant will move the court for an order that an Extension of time be granted to enable the intended Appellant serve copies of the Notice of Appeal on the Respondent.

This Application will be supported by the Affidavit of Felix. Mrema sworn on the 28th day of May, 1991.

In the accompanying affidavit of Mr. Mrema it is disclosed in paragraphs 5 and 6 that the appellant's Counsel had instructed his junior staff to serve copies of the notice of appeal and of the application for a copy of proceedings in this matter on the respondent through his advocates, but that such instructions were never carried out.

And in paragraph 9 the deponent says:

9. THAT I pray in the interest of Justice that this appliction for an Extension of time to serve the Respondents with a copy of the Notice of Appeal and a copy of the Application for a H certified Copy of the order, Ruling and Proceedings in the High Court Civil Case No. 210 of 1989 be granted.

Mr. Maira contended that there was no application for extension of time to serve the respondent with a copy of the letter to the Registrar because the notice of motion makes no reference to such application; it refers only to the application for extension of time to serve the respondent with a copy of the notice of appeal. Conceding that Mr. Mrema's affidavit makes it plain that the appellant was applying for extension of time to serve a copy of the said letter on the respondent, learned Counsel strongly maintained that that was immaterial. In his view, the relief sought must be set out in the notice of motion, while the affidavit merely provides the evidence in support of the application. Thus, he concluded, since the application for extension of time to serve copy of the letter to the Registrar on the respondent was not set out or averred in the notice of motion, such application was not before the single judge in Civil Application No. 18 of 1991, and therefore any reference from the decision of the single judge to the full Court in this application cannot have involved that issue.

We agree with Mr. Maira that a notice of motion should make reference to the relief which it is proposed to ask the Court to grant. Mr. Mrema's notice of motion in Civil Application No. 18 of 1991 complied with this requirement only as regards the application for extension of time to serve the respondent with a copy of the notice of appeal. It does so by citing rules 8 and 77 (1) of the Rules and by mentioning specifically the relief which it is proposed to apply for. Admittedly, however, this was not quite the case as regards the copy of the letter to the Registrar. The notice of motion cites rule 8 which relates to extension of time but without indicating the purpose for which extension of time would be sought. The question now is whether this omission was fatal. Mr. Maira strenuously contended that it was fatal notwithstanding that the accompanying affidavit made it clear that the appellant was seeking that relief. Mr. Maira, however did not refer us to any authority for this proposition. We think that in a situation like this one it would not be right to look at either the notice of motion or the accompanying affidavit in isolation. A notice of motion and the accompanying affidavit are in the very nature of things complementary to each other, and it would be wrong and indeed unrealistic to look at them in isolation. The proper thing to do is to look at both of them and if on the basis of that it is clear what relief is being sought then the Court should proceed to consider and determine the matter, regard being had to the H objection, if any, raised by the opposite party.

With that approach in mind then it was open to the single judge in the present case to do either of the two things: He might have required the appellant to amend the notice of motion so as to include reference to the proposed relief, i.e. extension of time to serve the respondent with a copy of the letter to the Registrar, and thereby bring it in line with the contents of paragraphs 5, 6 and 9 of the accompanying affidavit alluded to earlier. We should add that if the respondent's Counsel had noticed this inconsistency between the notice of motion and the accompanying affidavit, he had a duty as an officer B of the Court to point it out so that the Court might require the appellant to effect the desired amendment.

Altenatively the judge could consider the notice of motion and the accompanying affidavit, in the light of any opposition by the other party, and proceed to determine the application. We think that this is exactly what the learned single judge did, and we held that view for the following reasons:- First, upon reading through the notice of motion together with paragraphs 5, 6 and 9 of thje accompanying affidavit above cited, one can be left in no doubt whatsoever that the appellant was seeking extension of time to serve the respondent with not only a copy of the notice of appeal but also with a copy of the letter to the Registrar applying for a copy of proceedings. For, the notice of motion cites rule 8 of the Rules, which deals with extension of time fixed for the doing of various things under the Rules, and the affidavit specifically requests for extension of time to serve on the respondent a copy of the letter to the Registrar. The two documents read together make it abundantly clear what relief the appellant was seeking.

Secondly, in granting the respondent's application to strike out the appellant's notice of appeal, the learned single judge specifically referred to the appellant's application for extension of time to serve on the respondent a copy of the letter to the Registrar.

The relevant part of the Ruling of the learned single judge reads: Mr. Valambhia seeks to have the notice of appeal lodged by Mr. Kejo struck out on the ground that Mr. Kejo has failed to take some essential steps in the proceedings i.e. that he has not served a copy of the notice of appeal and a copy of the letter applying for a copy of the record of the proceedings in the High Court on him. And in Civil application No. 18 of 1991, filed on 29/5/91, Mr. Kejo, through, the Attorney General, admits that he has so H failed. But Mr. Mrema, a Principal State Attorney in the Attorney General's Chambers, contends on his behalf that the failure is excusable and applies, under Rule 8 of the Court of Appeal Rules, 1979, for extension of time to effect the service, which application is I strongly opposed by Mr. Valambhia.

Mr. Mrema added that in his oral address before the single judge he also made it clear that he was seeking extension of time to serve the respondent with a copy of the letter to the Registrar, and this is been out by the learned single judge when in the above extract taken from his Ruling he said:

But Mr. Mrema, a Principal State Attorney in the Attorney General's Chambers contends on his behalf that the failure is excusable and applies, under rule 8 of the Court of Appeal Rules, 1979 for extension of time to effect the service, which application is strongly opposed by Mr. Valambhia.

In the case of Osongo and Another v R. [1972] E.A. 170 a notice of motion was filed in the Court of Appeal for Eastern Africa for extension of time to file notice of appeal. Before this was heard, an application for the same relief was made in the High Court but was dismissed. Like in our own set up today both the High Court and the then Court of Appeal had concurrent jurisdiction over the matter but the applicant must go to the High Court first. When the motion came up for hearing in the Court of Appeal the question was whether the application was incompetent because it had been filed there before the application to the High Court. The Court held:

We think that a motion is an oral application and therefore that it is made at the time when the applicant addresses the Court or judge, not when the notice of motion is filed.

That decision can be taken to support the view that Mr. Mrema's oral address took care of the inadequacy that was in his notice of motion by referring specifically to the relief being sought. Otherwise the decision is equally consistent with the broader view we have taken that both the notice of motion and the accompanying affidavit have to be taken together in considering and determining the application.

In the light of all this therefore, we can find no merit in Mr. Maira's contention that the appellant's application for extension of time to serve the respondent with a copy of the letter to the Registrar was never before the single judge. The pleadings and the Ruling thereon make it plain that that appliction was before the single judge who specifically considered it but rejected it.

Equally devoid of merit is Mr. Maira's assertion that likewise the matter was never before the full Court which considered the reference from the single judge. Indeed in urging that point Mr. Maira had strongly maintained that although the full Court granted the extension of time to serve the respondent with a copy of the letter to the Registrar, there was no request for such relief and that the full Court simply went out of its way to grant a relief that was never asked for. The learned Counsel claimed that what was done here was akin to what was done by the High Court and strongly criticized by this Court in the case of The Attorney General v W. K. Butambala Criminal Appeal No. 37 of 1991 (Unreported).

There can hardly be any substance in Mr. Maira's allegations. The following extract which is taken from the Ruling of the full Court upon reference from the single judge would serve to put the matter beyond all doubt:

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 appliction 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.

And after considering the merits of the application the Court allowed the reference in the following terms:

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.

It seems clear from these quotations that the full Court upon a reference from the single judge dealt with, inter alia, the appellant's application for extension of time to serve the respondent with a copy of the letter to the Registrar and, overturning the single judge, I duly granted it. Mr. Maira's claim that this Court, upon a reference from the single judge granted the appellant an extension of time gratuitously was gravely misconceived and wholly unjustified. For, to say the least, Mr. Mrema having been aggrieved by the decision of the single judge, one would naturally expect him on reference to ask the full Court to reverse the refusal of his application by the single judge and to proceed to grant him extension of time to serve on the respondent not only a copy of the notice of appeal but also a copy of the letter to the Registrar. In other words, knowing that he was specifically being charged with failure to serve the two documents on the respondent, it is inconceivable that he would have asked the full Court for extension of time to serve on the respondent only one document and not both of C them. His request for extension of time was in respect of both documents, and the full Court granted the request accordingly.

To sum up on this point, therefore, we are satisfied that the appellant's application for extension of time to serve the respondent with a copy of the letter to the Registrar applying for a copy of the proceedings was both before the single judge and also before the full Court upon the reference from the decision of the single judge.

The other ground of the preliminary objection, also based on rule 83 (1), turned on non-payment of Court fees and security for costs of the appeal by the appellant. It was conceded that none of these payments had been made, and so Mr. Maira charged that there was no excuse or justification for such non-payment. He stated that the Government was exempted from paying Court fees in specific situations. For instance, under rule 10 of the Court Fees Rules 1964 G.Ns. 308 and 411 the Government is exempted from paying Court fees in Civil and Criminal matters in the lower Courts, while under rule 112 (b) of the Court of Appeal Rules the Government is expressly exempted from paying Court fees in respect of any criminal application or criminal appeal in the Court of Appeal. The Court of Appeal Rules, however, are silent on the payment of Court fees by the Government in civil matters. Mr. Maira strongly submitted that the necessary conclusion to be drawn is that the Government is not exempted from paying court fees or security for costs in civil matters in the Court of Appeal. And since H the Government has not made these payments, and has not applied for extension of time to do so, then the appeal is in terms of rule 84 (a) deemed to be withdrawn.

As stated earlier, it was conceded for the appellant that no payment of fees or security for costs had been made. Mr. Mrema conceded further that he was unable to cite any legal provision which exempted the Government from such payments. We should add that we too have not succeeded to find one so far. But Mr. Mrema contended that there has been established in this country a long tradition now whereby the Government has not been required to pay court fees or security for costs in such matters in the Court of Appeal. This, he said, was in keeping with the practice in some Commonwealth jurisdictions including England, whereby the Government is exempted from such payments. He concluded by saying in effect that if there was non-compliance by the Government here, this necessarily resulted from the long practice of not requiring the Government to make such payment. In the circumstances, he went on, it would be unjust to penalize the Government on this occasion for following an established practice which for a long time has never been questioned.

As noted before, rule 10 of the Court Fees Rules 1964. Ns. 308 and 411 exempts the Government from paying court fees in both criminal and civil matters in the lower courts, while under rule 112 (b) of the Court of Appeal Rules the Government is expressly exempted from paying court fees in criminal applications and criminal appeals, but nothing is said about payment of fees in civil matters. We are unable to construe such silence to mean exemption from payment of fees in civil matters.

Since the framers of the Rules obviously had in mind the issue of exemption, and indeed expressly granted exemption in criminal matters, than if they were so minded they would have equally granted exemption in civil matters. We are inclined to agree with Mr. Maira that such F silence can only be construed to mean that the framers of the rules intended that the Government should pay court fees in civil cases. Likewise the Government is obliged to pay security for costs as we could find no basis for express or implied exemption.

It is true that this view is not in harmony with the total exemption which the Government enjoys in the lower Courts, but for reasons given above we could not construe rule 112 (b) of the Court of Appeal Rules to come to any different conclusion. If the omission to grant total exemption was really not intended, then it is suggested that the appropriate authority might consider amending rule 112 (b) of the Court of Appeal Rules to harmonize the position with that of total exemption accorded to the Government in the lower Courts.

We have given due consideration to Mr. Mrema's submission that to threw out the appeal on this ground would amount to penalizing the Government on this occasion for I having followed a practice which for a long time has never been questioned. It could very well be that the Registry staff concerned either consciously or through inadvertence failed to require the Government to pay court fees and security for costs in the past. It may also be that this practice has gone on for a long time. But a practice which is not sanctioned in law can never acquire legal legitimacy however long it might be.

Indeed if there was nothing else to this matter we would have been inclined to uphold the preliminary objection on this ground, but there are other matters to be considered along-side this omission. We shall come back to this point later on but meantime we prepare to deal with the respondent's last ground of objection.

This ground was argued on behalf of the respondent by the learned advocate, Mr. Marando. He pointed out that grounds 5 to 8 of the memorandum of appeal relate to appeal against the judgment in the main suit i.e. Civil Case No. 210 of 1989. He contended that to that extent this appeal is incompetent because the appellant has not given any notice of appeal in respect thereof and has not sent any copy of such notice to the respondent as required by rules 76 and 77, respectively, of the Rules.

Pressing the point further, he charged that the appellant has not even bothered to seek extension of time to take these steps. On these grounds Counsel submitted that the appeal as contained in grounds 5 to 8 relating to the main suit should be struck out as being incompetent.

Our own view of the matter is that the order of 10.5.91 which is the subject matter of this appeal is so closely interwoven with the judgment in the main suit that it would be unrealistic to consider the propriety or otherwise of the said order in isolation.

In other words one cannot effectively question the order without reference to the judgment in the main suit from which that order springs. In practical terms the said order is an amplification of the relief granted to Mr. Valambhia in the main suit. It is, if you wish, a culmination of the relief granted in the main suit. So that a notice of appeal against the order of 10.5.91 by necessary implication means that the decision in the main suit, in so far as it extends to the order, is also being challenged.

Therefore, in our view it was not strictly necessary to give a separate notice in respect of the main suit. As intimated earlier, we now revert to the matters which have to be considered along-side the omission by the Government to pay court fees and security for costs in this intended appeal. Glancing through the memorandum of appeal and upon hearing Mr. Mrema in answer to this preliminary objection, it becomes evident that the main grievance of the appellant is that he was not given the opportunity to be heard against the garnishee order. He was condemned unheard.

That, Mr. Mrema submitted, offended against the principle of natural justice. Mr. Mrema submitted further that had the appellant been afforded the opportunity of being heard, he or his Counsel would have raised the issue of the illegality of the proceedings leading to the granting of the garnishee order in that they violated the provisions of the Government Proceedings Act 1967 which lays down the procedure of bringing suits against the Government. Under the same Act he would have challenged the legality of the garnishee order as a method of executing court decrees against the Government. He would also have questioned the validity of the order of 10.5.91 requiring the appellant to comply with the garnishee order within three weeks which compliance would be in violation of Exchange Control Regulations.

While avoiding the risk of going into the merits of the case, we think that the points raised are sufficiently weighty. They are such that if proved they go to the root of the matter. For instance, they allege illegality of the order or orders of the Court. That is obviously a point of law. In Civil Reference No. 9 of 1991 involving the same parties as in this case, we took the view that where the point of law at issue is the illegality or otherwise of the decision being challenged, that is a point of law of sufficient importance to constitute sufficient reason within rule 8 of the Court of Appeal Rules to overlook non-compliance with the requirements of the Rules and to enlarge the time for such compliance. The same applies here. So that although we would have upheld the F preliminary objection on the grounds of failure by the Government to pay court fees and security for costs in this appeal, there ought to be afforded opportunity for the Court to ascertain on the issues raised and, if the allegations are established, take appropriate measures.

In the result the preliminary objection is overruled. It is further directed that the Government is to pay the Requisite Court fees and security for costs within 7 days of the receipt of this Ruling by the parties. Although the general rule is that in civil cases he who wins has his costs, we think that in the unusual circumstances of this case each party is to bear his own costs. It is ordered accordingly.

I Ordered accordingly.

1991

Editorial Board

Chairman

The Hon. Justice F.L. NYALALI, Chief Justice,

Court of Appeal of Tanzania

Managing Editor

Dr. Z.S. GONDWE, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Editors

The Hon. Mr. Justice H.M. HAMID, Chief Justice, Zanzibar

The Hon. Mr. Justice B.A. SAMATTA, Principal Judge (J.K.),

High Court of Tanzania

Mr. K.S. MASSABA, D.P.P., Attorney-General Chambers,

Dar es Salaam

Mr. A.M. MISKRY, State Attorney, Attorney-General Chambers, Zanzibar

Dr. S. BWANA, Registrar, Court of Appeal of Tanzania

Mr. S.J. JADEJA, Advocate, High Court of Tanzania

Ms. C. ORIYO, Corporation Counsel,Tanzania Legal Corporation

Mr. S. MCHOME, Lecturer in Law, Faculty of Law,

University of Dar es Salaam, Assistant Managing Editor

Administrative Assistant, Ms. M. SHANGALI

Special Assistant, Dr. N.N.N. NDITI, Senior Lecturer in Law,

Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of Tanzania and the High

Courts of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1991] T.L.R

Judges of the Court of Appeal of Tanzania in 1991

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice L.M. Makarne Justice of Appeal

3. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

4. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

5. The Hon. Mr Justice A.S.L. Ramadhani Justice of Appeal

6. The Hon. Mr. Justice N.Z. Mrizavas Justice of Appeal

7. The Hon. Mr. Justice L.M. Mfalila Justice of Appeal

Judges of the High Court of Tanzania in 1991

1. The Hon. Mr. Justice B.A. Samatta Principal Judge (J.K.)

2. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

3. The Hon. Mr. Justice K. S. K. Lugakingira Puisne Judge

4. The Hon. Mr. Justice E.W Katiti Puisne Judge

5. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

6. The Hon. Mr. Justice N.M. Mushi Puisne Judge

7. The Hon. Mr. Justice W. Maina Puisne Judge

8. The Hon. Mr. Justice J.A. Mroso Puisne Judge

9, The Hon. Mr. Justice L.J.R. Chua Puisne Judge

10. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

11. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

12. The Hon. Mr. Justice H.E.D. Sisya Puisne Judge

13. The Hon. Mr. Justice Y S. Rubarna Puisne Judge

14. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

15. The Hon. Mr. Justice A. Bahati Puisne Judge

16. The Hon. Mr. Justice H.A. Msumi Puisne Judge

17. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

18. Fhe Hon. Mr. Justice E.E. Kazirnoto Puisne Judge

19. The Hon. Mr. Justice L.A. Kyando Puisne Judge

20. The Hon. Mr. Justice W.H. Sekule Puisne Judge

21. The Hon. (Madam) Justice E.N. Munuo Puisne Judge

21. The Hon. Mr. Justice J. Masanche Puisne Judge

23. The Hon. Mr. Justice L.B. Mchome Puisne Judge

24. The Hon. Mr. Justice M.D. Nchalla Puisne Judge

25. The Hon. Mr. Justice J.J.M. Mackanja Puisne Judge

26. The Hon. Mr. Justice J. Mkwawa Puisne Judge

27. The Hon. Mr. Justice T. Mkude Puisne Judge

28. The Hon. Mr. Justice E.l.K Mwipopo Puisne Judge

29. The Hon. Mr. Justice E. Rutakangwa Puisne Judge

Judges of the High Court of Zanzibar in 1991

1. The Hon. Mr. Justice Hamid M. Hamid Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

Cases Reported

1991 TLR p1

A