Bunda District Council vs Virian Tanzania Ltd. (Civil Case No. 21 of 1997) [1999] TZHC 529 (25 August 1999)
Judgment
BUNDA DISTRICT COUNCIL v. VIRJAN TANZANIA LTD. 385 BUNDADISTRICTCOUNCILv. VIRIANTANZANIA A LTD. HIGH COURT OF TANZANIA ATMWANZA B (Nsekela, J.) CIVIL CASE No. 21 OF 1997 Civil Practice and Procedure - Leave to defend a summary suit - Oral application to file a supplementary affidavit made by an advocate recently instructed
- Order XX¥v, rule 3 and Order XII, rule 2 of the Civil Procedure Code and sections 68(e) and 95 of the Civil Procedure Code. Civil practice and proc_edure - Inherent jurisdiction - Statute containing specific provision under which the court may be moved to take a particular action
- Inherent powers of the court should not be invoked for such action. The plaintiff filed a summary suit under Order XXXV of the Civil Procedure Code for the payment of money. The defendant filed a chamber application under Order XXXV, rule 3 of the Code seeking, interalia, leave to defend the suit. The application was supported by an affidavit of the applicant's first advocate. The plaintiff's advocate filed a counter-affidavit opposing the application for leave. When the application was called on for hearing, an advocate of the applicant who had recently been instructed prayed for time to file a supplementary affidavit. The plaintiff's advocate strongly opposed the prayer and prayed for the case to be heard. Held: (i) Inherent jurisdiction must be exercised subject to the rule that if the Code does contain specific provisions which will meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked; C D E F G it is only when there is no clear provision in the Civil Procedure Code that inherent H jurisdiction can be invoked. (ii) Since in this case there was a specific provision governing the making of applications before the High Court, the inherent powers of the court could not be exercised under section 95 of the Code. I
386 TANZANIA LAW REPORTS [2000]TL.R. A (iii) The oral application, seeking to take a step for the purpose of assisting the applicant in the prosecution of his case before judgment, was properly made under section 68(e) of the Code; and as the applicant's advocate had taken over the conduct of the case from another advocate, there was no reason to deny the applicant legal B representation in prosecuting his case. C D E F G H I The applicant's advocate was directed to file a formal application within seven days. Order accordingly Statutory provisions referred to: (i) Civil Procedure Code, sections 68(e) and 95, Order XXXV, rule 3 and Order XII, rule 2, Order XXXV (ii) Indian Code of Civil Procedure, section 151 (iii) Interpretation and General Clauses Act Number 30 of 1972 (iv) Local Government (District Authorities) Act Number 7 of 1982 Mr. Matata, for the Plaintiff/Respondent Mr. Galati, for the Defendant/Applicant RULING (Delivered 25 August 1999) NSEKELA, J.: The plaintiff, Bunda District Council, a local authority established under the Local Government (District Authorities) Act Number 7 of 1982 instituted a summary suit Number 21 of 1997 against the defendant, Vrrian Tanzania Ltd. Claiming, inter alia, judgment and decree for payment of TZS. 18 165 000. The suit was instituted under Order XXXV of the Civil Procedure Code. The defendant (now applicant) has filed a chamber application under Order XXXV, rule 3 and Order XLII. Rule 2 of the Civil Procedure Code seeking, inter alia, the following order: Leave to defend suit be granted as there are triable issues in the main suit.
BUNDA DISTRICT COUNCIL v. VI RIAN TANZANIA LTD. 387 The application is supported by an affidavit sworn by one Baraka A Makowe, learned advocate for the applicant. The supporting affidavit in part reads as hereunder: 2.. That the respondent has filed a summary suit against the applicant of which no defence can be filed without leave to this Honourable Court; 3.. That there are triable issues that merit the hearing of the suit inter- partes, namely: (i) Whether on agent can collect cotton cess vide a by-law that has not been consented to by the Minister for Local Government. (ii) Whether an agent is liable on non - collecting levy/cess that is a result ofretrospective applicability of a subsidiary legislation. On his part, Mr. Matata learned advocate for the respondent has filed a counter-affidavit which in part reads: B C D 3. That the respondent denies the contents of paragraph 3( l) of the E affidavit and avers that the by-law have been consented to by the Minister for Local Government and published as G.N. 294 of 1996. 4. That as regards to the contents of paragraph 3(ii) of the affidavit the respondent avers that the aforesaid by-law came into operation F on the 1 January 1996 by virtue of clause 2 of G.N. 294/96 read together with section 7 of the Interpretation and General Clauses 5. Act 30/72. That in our view the applicant have no plausible defence to the claim in the main suit. On 9 March 1999 this application came before me for hearing. The applicant was represented by Mr. Galati, learned advocate whereas Mr. Matata, learned advocate, represented the respondent. Mr. Galati, who apparently had been recently instructed to handle the matter for the applicant, prayed for more time, in order to file a supplementary affidavit. Mr. Matata however strongly objected this course of action and implored the court to proceed on hearing the application. In G H I
A B C D E F 388 TANZANIA LAW REPORTS [2000] T.L.R. reply, Mr. Galati submitted that this court has inherent powers under sections 95 and 68(e) of the CPC to grant any order in the interests of justice. This matter has caused me some anxiety. The first application by the applicant was due for hearing on 9 March 1999 but did not take off because apparently the applicant had in between instructed another advocate, Mr. Galati who then made an oral application to file a supplementary affidavit citing sections 68( e) and 95 of the Civil Procedure Code as his authorities for so doing. I reproduce them hereunder: 68. 95. In order to prevent the ends of justice from being defeated the court may, subject to any rules in that behalf: ( e) make such other interlocutory Orders as may appear to the court to be just and convenient. Nothing in this code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Starting with section 95 of the Civil Procedure Code I can do no better than quote from Mulla's Code of Civil Procedure (13 ed) at page 577 where the learned author in a commentary of section 151 of the Indian Code of Civil Procedure, which is in pari meteria with our section 95 above, had this to say: Inherent jurisdiction must be exercised subject to the rule that if the Code G does contain specific provisions which would meet the necessities of the case in question such provisions should be followed and the inherent jurisdiction should not be involved. It is only when there is no clear provision in the Civil Procedure Code that inherent jurisdiction can be invoked. H I And in Sarkar's Law of Civil Procedure (8 ed) the learned authors have this to say on page 484: The inherent power being very wide and incapable of detention its limits should be carefully guarded. The power is intended to supplement the
BUNDA DISTRICl COUNCIL, .. VIRIAN TANZANIA LTD. 389 other provisions of the Code and not to evade them or to invent a new A procedure according to individual sentiment. The question that arises is, does the Civil Procedure Code have any provision governing the making of applications before the court? I think the answer is, yes and this is Order XLIII, rule 2 of the Civil Procedure Code which is in the following terms: Every application to the court made under this Code shall, unless otherwise provided, be made by a Chamber Summons supported by affidavit: Provided that the court may where it considers fit to do so, entertain an application made orally, or where all the parties to a suit consent to the order applied for being made, by a memorandum in writing signed B C by all the parties or their advocates, or in such other mode as may be D appropriate having regard to all the circumstances under which the application is made. Under the circumstances, since there is a specific provision governing the making of applications before this court, the inherent powers of the court cannot be exercised under section 95 of the Civil Procedure Code as contended by Mr. Galati. This takes me to section 68(e) of the Civil Procedure Code. It is common knowledge that in Civil Case Number 21 of 1997 the applicant has filed an application for leave to defend the suit. The current learned advocate for the Applicant, Mr. Galati has made an oral application to file a supplementary affidavit probably to perfect the existing one. According to Jowitt's Dictionary of English Law (2 ed) at page 999 an interlocutory proceeding : E F G is incidental to the principal object of the action, namely, the judgment. This interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment; or of protecting or otherwise dealing with H the subject matter of the action before the rights of the parties are finally determined; or executing the judgment when obtained. Such are applications for time to take a step e.g. to deliver a pleading, for discovery, for an interim injunction, for appointment of a receiver, for obtaining a garnishee order, etc. I