NATIONAL BANK OF COMMERCE v COSMAS M. MUKOJI 1986 TLR 127 (HC)

 

NATIONAL BANK OF COMMERCE v COSMAS M. MUKOJI 1986 TLR 127 (HC)

Court High Court of Tanzania -Mwanza

Judge Mwalusanya J

21 November, 1986

H CIVIL CASE 2 OF 1983

Flynote

Civil Practice and Procedure - Reviews - Application for a review -Chamber application not

supported by affidavits - Chamber application supported by oral statements made by applicant in

court - Whether such application for review is regular. I

1986 TLR p128

-Headnote

A The applicant, judgment debtor, had previously applied to raise the attachment of his house

allegedly because it was under mortgage. The application was dismissed as it was found as a fact

that the house in question was not under mortgage as claimed. He now applied for review

stating in the present application that in fact he should have applied to B raise the attachment

on the ground that the house was a residential one used by him and his family. The chamber

application was not supported by affidavits.

Held: Although the application for review is irregular for not having been accompanied by

affidavits the irregularity is not C fatal. The oral statements which the applicant made in court

were sufficient to support the chamber application instead of the affidavits.

Case Information

Order accordingly.

D No case referred to.

[zJDz]Judgment

Mwalusanya, J.: The applicant Cosmas M. Mukoji has lodged two combined applications before

E this court. First is the application under s.14(1) of the Law of Limitation Act, 1971 for leave to

lodge an application for review out of time. Second is the application for review under Order 42

and section 48 of the Civil Procedure Code Act No. 49 of 1966 as amended by Act No. 11 of

1976.

F As for the application for leave to apply out of time I note that the application for review

should have been lodged within 30 days from the day the judgment was delivered on 24/4/1986.

This application was lodged on 7/8/1986. A delay of about two months. That is not a very

inordinate delay. The applicant says that the delay was due to the fact that G he is ignorant of

law and so he had to go around to persuade friends to help in drafting the necessary affidavits

and chamber summons. The explanation given is understandable. In view of the fact that the

delay was not too inordinate, I granted orally the leave to lodge the application for review out of

time. H

As regards the application for review the facts are as follows. In April 1986 the applicant who is

a judgment-debtor applied to raise the attachment of his house allegedly because it was under a

mortgage. The application was dismissed as it was found as a fact that the house in question was

not under a mortgage as claimed. He now states in the present I application for review that in

fact he should

1986 TLR p129

MWALUSANYA J

A have applied to raise the attachment on the ground that the house was a residential one used

by him and his family.

It is common ground that under s.48(a) of the Civil Procedure Code Act No. 49 of 1966 as

amended by Act No. 11 of 1976, a residential house used by the judgment-debtor and his family

is not liable to attachment. Counsel for the B respondents Mr. Rutabingwa feebly argued that

the applicant is not using the house for residential purposes but renting it out. I adjourned the

case for a day to give the respondent's counsel time to bring evidence as to whether the house

was indeed rented out or not. The respondent's counsel failed to bring such evidence and in fact

during the hearing he C intimated that he was withdrawing the contention that the house is

rented out. So the position is that it is uncontroverted that the house in dispute is being used as

a residence by the judgment-debtor and his family. It is therefore not liable to attachment.

D It is conceded by this court as ably argued by respondent's counsel that the application for

review is irregular in that there is no affidavit accompanying the application but a mere

statement of facts. But I hold that the irregularity is not fatal. There is no magic in affidavits

and so we should not tend to canonize them. The oral statements which applicant made in court

were sufficient to support the chamber application instead of the affidavits. E

Counsel for the respondent also argued that for any application for review there ought to be a

discovery of a new fact which was not within the knowledge of the applicant at the first trial.

He said that in here the fact that the house in dispute F is a residential one was within the

knowledge of the applicant at the first trial and so the application for review is incompetent and

ought to be rejected.

I agree that the fact that the house is residential was within the knowledge of the applicant at

the first trial. But nevertheless the application is competent. There are two other legs under

which an application for review can be made: G

(a) If there is an error apparent on the face of the record;

(b) If there is any other sufficient reason.

H I would and do hereby allow this application under any of these two legs. I ought on the

earlier judgment of 24/4/1986 to have had taken judicial notice of the fact that the house was

residential and thus should have raised the attachment. I correct that mistake now. I

I wish to make one last but vital observation. I find that these

1986 TLR p130

A two applications were in fact unnecessary. The applicant ought to have simply filed an

application for an order to raise the attachment of the house under s. 48(e) of the Civil

Procedure Code. This application would not have been res judicate as the matter in the former

application concerned a different matter that is whether the house was under a mortgage or not.

The issue in the present case is patently different. The applicant was obviously wrongly advised.

B

Be that as it may, the application is granted. The attachment of the house is raised as prayed.

Each party to bear its own costs of this application.

Order accordingly. C

1986 TLR p130

D