IN THE COURT
OF APPEAL OF TANZANIA
AT ARUSHA
(CORAM: LUBUVA, J.A., RUTAKANGWA, J.A., And
KIMARO, J.A.)
CIVIL APPEAL
NO. 129 OF 2002
1. PAUL A. KWEKA
2. HILLARY
P. KWEKA..……………………………………………. APPELLANTS
VERSUS
NGORIKA BUS SERVICES AND
TRANSPORT COMPANY LIMITED
……………………………… RESPONDENT
(Appeal from
the decision of the High
Court of
Tanzania at Moshi)
(Mchome,
J.)
dated the 10th
day of May, 2002
in
Miscellaneous
Civil Application No. 104 of 2001
--------------
ORDER OF
THE COURT
11 September & 4
October 2006
RUTAKANGWA,
J.A.:
This
is an appeal against the ruling and order of the High Court at Moshi (Mchome,
J.) in Miscellaneous Civil Application No. 104 of 2001. The background giving rise to the appeal will
shortly be apparent. Suffice it to say that
the appellants instituted a suit against the respondent company and two others
(The National Insurance Corporation or the N.I.C. and John Hosea) in the High
Court at Moshi. The respondent company
failed to file the written statement of
defence (w.s.d) and so the High Court entered an ex parte judgement against it under Order VIII, rule 14 of the
Civil Procedure Code 1966 (hereinafter the C.P.C.). that was on 14th December 2000.
Subsequent
to obtaining the ex parte judgement
in their favour, the appellants withdrew the suit as against the NIC and John
Hosea. However, on becoming aware of the
ex parte judgement against it the
respondent, on 5th October 2001, through Prof. Msanga, learned
advocate, filed Miscellaneous Civil Application No. 104 of 2001, under Order
IX, rule 13 of the C.P.C., seeking an order to set aside the ex parte judgement. The said application was vigorously resisted
by the two appellants who were represented by Mr. Jonathan, learned advocate
from M/s Shayo, Jonathan and Company, Advocates. The said application was heard and
conclusively determined on 5th May, 2002 when the High Court
(Mchome, J.) delivered the ruling. In
the said ruling the learned judge granted the order sought. The ex
parte judgement was accordingly set aside and the respondent ordered to
file its w.s.d. within twenty one days from the date of the ruling.
The
appellants were dissatisfied with the said ruling and order of the High Court
and desired to appeal against it. To
execute their desire to appeal the appellants duly filed, Miscellaneous Civil
Application No. 52 of 2002 in the High Court at Moshi. They were applying for leave to appeal in
terms of section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. the application was heard ex
parte and leave to appeal was granted by the High Court. The applicants were dissatisfied hence this
appeal before us.
The
memorandum of appeal filed by M/s Shayo, Jonathan and Company, Advocates,
contains six (6) grounds of appeal. When
this appeal was called on for hearing Mr. Jonathan decided to argue the appeal
on the following two grounds of complaint namely:-
(a)
that the learned High Court
judge acted without jurisdiction in entertaining and determining the
application in as much as the same was barred by limitation, and
(b)
that the learned judge
erred in finding that the respondent had shown good cause for not ente3ring
appearance and for not filing a w.s.d.
Mr. Jonathan zealously addressed us at
length on why he believed that the learned High Court judge erred in granting
the order appealed against while it was patently obvious that the application
was time barred and the respondent had failed to show good cause for his
failure to enter appearance. He
accordingly urged us to allow this appeal in its totality by quashing and
setting aside the High Court order and substituting therefor an order
dismissing the application with costs.
With enthusiasm, Prof. Msanga, counsel
for the respondent resisted the appeal.
According to him, the respondent not only gave a satisfactory account
for its failure to enter appearance and/or to file a w.s.d. but it also filed
the impugned application within fourteen days as ordered by the High Court
judge following the withdrawal, with leave, in Miscellaneous Civil Application
No. 1 of 2001. This latter application
was one for review of the ex parte judgement, Professor rested the matter there.
In the course of hearing the appeal it
transpired that there were two serious legal issues which were not adverted to
by both counsel in their respective submissions. These issues relate to, first, the fact that the record of appeal does not contain a copy
of the order of the High Court granting leave to appeal which was signed by the
judge. This is a mandatory requirement
under rule 89 (1) (i) of the Rules of the Court, 1979. Secondly,
there is the issue of jurisdiction, in the sense whether the order of the High
Court appealed from is appealable. We
gave counsel for both parties full opportunity to address us on these two
issues. They did commendably well and
their contributions have been of invaluable assistance to us.
It was Mr. Jonathan’s strong submission
that going by the clear provisions of the Appellate Jurisdiction Act, 1979,
(hereinafter the Act), the C.P.C. does not apply to proceedings before the
Court. This point was not disputed by
Professor Msanga in his submission. Mr.
Jonathan specifically directed his mind to section 5 (1) of the Act, which sets
out the types of decrees and/or orders of the High Court which are appealable
to this Court. He specifically drew our
attention to section 5 (1) (c) of the Act which, he gallantly submitted,
governs this appeal. For ease of
reference we shall reproduce that provision of the Act here. It reads as follows:-
“5
– (1) In all civil proceedings, except
where any other written law for the time being in force provides otherwise,
an appeal shall lie to the Court of Appeal –
(a)
…
(b)
…
(c)
With leave of the High
Court or of the Court of Appeal, against every other decree, order, judgement,
decision or finding of the High Court” (emphasis is ours).
According to Mr. Jonathan an order setting aside an ex parte decree falls under the category
of “other order” not covered by sub-section (1) (b) of the Act; and as leave to
appeal was sought and granted, the appeal is competently before the Court.
We invited
Mr. Jonathan to address his mind to Order XLII, rule 7 which bars appeals from
orders rejecting applications for review with a view of finding out if there is
any similarity between it and Order XL, rule 1 (d) which also bars appeals from
orders setting aside ex parte decrees under Order IX, rule 13. We did so advisedly because this Court at
times invoked its revisional powers to entertain applications for revision
where the High Court had rejected an application for review. This is done because an aggrieved party has
no right of appeal under the said rule 7 (1) of Order XLII of the C.P.C. Mr. Jonathan simply stated that he saw no
similarity between the two. He only
reiterated his position that where an application to set aside an ex parte decree is either granted or refused, an
aggrieved party may appeal to the Court provided leave to appeal is obtained.
We also
invited Mr. Jonathan to tell us what he made out of the provisions in section 5
(1) (b) (ix) of the Act, when read together with section 74 (1) (i) and Order
XL, rule 1 and XLIII, rule 1 of the C.P.C.
Mr. Jonathan readily conceded, and we think correctly so, that Order
XLIII rule 1 spells out the powers of the Registrar of the High Court under the
C.P.C., while Order XL, rule 1 spells out appealable orders under the
C.P.C. It was his opinion therefore that
there might have been a typing error in that the words “rule 1 of Order XLIII”
were mistakenly substituted for the words “rule 1 of Order XL”. All the same, he insisted that this appeal
falls under section 5 (1) (c) of the Act and not section 5 (1) (b) of the Act.
Professor
Msanga firmly maintained that an order of the High Court setting aside an ex parte decree under Order IX, rule 13
of the C.P.C. is not appealable in terms of Order XL, rule (d). He sought to fortify his position by relying
on commentaries by MULLA in his treatise entitled MULLA ON THE CODE OF CIVIL
PROCEDURE ACT V OF 1908. Commenting on
the provisions of Order IX rule 13 of the Indian Code which are almost
identical with our rule 13 of Order IX and relying on decided cases in India,
the learned author says:-
“If,
in a case open to appeal, an application under this rule is dismissed, an
appeal lies from the order dismissing the application, whether the dismissal
was on merits or for default (citing Order 43, rule 1 (d). But where the application is granted no
appeal lies from the order granting the application. And this is so when the ex parte decree set aside is one passed by the High Court in the
exercise of its original jurisdiction …” (emphasis is ours) at page 1354 of
Volume II 15th edition.
Professor
Msanga further submitted that appeals to this Court are governed by procedures
before the High Court. It was his
contention that where the C.P.C. bars an appeal, as in Ordeer XL, rule 1 in
respect of an order under Order 9, rule 13, no appeal to this Court shold be
entertained. He urged the Court to seek
inspiration from Order XLII, rule 7 where an appeal against an order of the
High Court rejecting an application for review is barred and dthe Court has so
held in the past paving way for the aggrieved party to move the Court to
intervene by way of revision. According
to him the two situations are indistinguishable. He accordingly urged us to hold that this
appeal is incompetent and strike it out with costs.
Coming to
the issue of the signing of the order extracted from the ruling giving leave to
appeal both counsel were in agreement on only one basic fact. This is that such order ought to be signed by
the judge who issued it or his/her successor in office, as is the case with a
decree issued under Order XX, rules 7 and 8 of the C.P.C. thereafter they parted company with each
other. According to Mr. Jonathan, if the
order is not so signed this is an irregularity which can be rectified by an
amendment under rule 104 of the Rules of the Court, 1979. Mr. Jonathan even went further to suggest
that it is not even necessary for a copy of the formal order to be incorporated
in the record of appeal if the record contains a copy of the ruling/order
giving leave.
On his
part, Professor Msanga urged us not to endorse Mr. Jonathans position on the
issue. To him non-signing of the formal
order granting leave to appeal by a judge is fatal. He predicated his stance on the definition of
the word “order” found in section 3 of the C.P.C. the word “ordeer” is defined therein as “the
formal expression of any decision of a civil court which is not a decree”. According to Professor Msanga it is only the
judge who can know exactly what was ordered in the decision giving leave to
appeal. While conceding, quite rightly,
that this was a novel situation, he invited us to deal with this issue in a
similar manner as the court has been dealing with identical situations in
relation to decrees. Regarding section 5
(1) (b) of the Act, he insisted that there was a typing error as the proper
order to be cited therein ought to have been Order XL, rule 1.
We shall
first deal with the issue whether this appeal is competently before the
Court. We have given due consideration
to the submissions of both counsel on the issue. We hasten to say that we have found the
submission of Professor Msanga on the issue to be very persuasive and we have
decided to go along with him. It is our
view that an order under Order IX, rule 13 of the C.P.C. is not appelable, as
is the case in India
The
rationale for making the orders non-appealable is not hard to find. Firstly,
it promotes an expeditious administration of justice, that is it ensures timely
justice, at the same time making access to justice affordable, that is less
costly. Secondly, and more importantly, it affords both parties in the case
equal opportunity to be heard at the full trial. It would be recalled that the right to a full
hearing is one of the basic attributes of the right to equality before the law
granted under Article 13 (6) (a) of the Consstitution of the United Republic of
Tanzania, 1977.
It should
also be recalled that the right of appeal is a creation of a statute. There is therefore no automatic right of
appeal to this Court. Whenever thee is
an appeal to this Court ehre is a law behind which gave the right to
appeal. In this appeal, the appellants,
as shown in Mr. Jonathan’s submission, are relying on the Appellate
Jurisdiction Act, 1979. This being a
civil proceeding the controlling section is section 6 (1) of the Act, which we
have already partly reproduced above.
This right of appeal granted by the Act is all the same restrictive in
nature. In part, it provides that in
civil proceedings before the High Court, an appeal shall lie to this Court “except
where any other written law for the time being in force provides otherwise”. It is our considered opinion that with
respect to orders under Order IX, rule 13 of the C.P.C., the written law for
the time being in force, is, the C.P.C.
It is provided in Order XL, rule 1 (d) that an appeal shall lie only
from an order under rule 13 of Order IX rejecting an application for an ordeer
to set aside a decree or judgement passed ex
parte (in a case open to appeal).
That being the legal position, it will be accepted without further
elaboration that this appeal is barred by the C.P.C. This is the law which provides otherwise in
terms of section 5 (1) of the Act.
Consequently, we are, with respect, in agreement with Professor Msanga
in his submission that this appeal is incompetent. We are reinforced in this view by the learned
author MULLA when he states:-
…
an order under Order 9, rule 13 setting aside an ex parte decree is not an order that affects the merits of
the case, such an ordeer merely ensures a hearing upon the merits (MULLA, supra
Vol. 1 P. 748).
We entirely agree with this sound approach. After all, that is what justice is all about.
In the
event, we are satisfied that an order granting an application tos et aside the ex parte judgement is not
appealable. The appeal before us is, as
urged by Professor Msanga, incompetent.
It is accordingly struck out with costs.
Having
taken this course of action, it therefore becomes unnecessary to deal any
further with the issue relating to non-inclusion of a properly signed order in
terms of rule 89 (1) (i) of the Rules of the Court, 1979.
It is so
ordered.
DATED at ARUSHA this 4th day
of October, 2006.
D. Z. LUBUVA
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
N. P. KIMARO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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