Urging the Court to allow the application for extension of time, counsel for the
applicant contended that the counter-claim and decree thereon are illegal because the cause of action arose in 1978, about 21 years
before the counter-claim was filed in 1999 which shows that the said counter-claim was hopelessly time barred and as such is not
sustainable in law. He observed that if the counter-claim was based on breach of a tenancy agreement by the applicant landlord, it
should have been filed with a period of six years commencing 1978. In view of the invalidity of the counter-claim and decree, counsel
for the applicant argued that non-compliance with Rule 52 (1) of the Court Rules, a mere procedural irregularity, should give way
to substantive justice on the issue of the limitation period of the counter-claim. He cited, among other cases, the case of D.T. Dobie (Tanzania) Ltd. versus Phantom Modern Transport (1985) Ltd., Civil Application No. 141 of 2001, Court of Appeal of Tanzania (unreported) in which the Court observed that ?
--- It has always been that rules of procedure are handmaids of justice and I take this to mean that they should facilitate rather
than impede decisions on substantive issues.
In the said case, the Court further observed that in the case of Cropper versus Smith
(1884) 26 CL. D.700 at page 710:-
--- It is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for
mistakes they made in the conduct of their cases by deciding otherwise than in accordance with their rights. c I know of no
kind of error or mistake which if not fraudlent or intended to overreach, the court ought to correct, if it can be done without injustice
to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy. [Lord Bowen]
To synchronize the principle of delivering substantive vis-a vi technical justice
by regarding rules of procedure as handmaids of justice, in the above Phantom case, the Court also referred to Article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977, which imposes
on the Courts, an obligation to refrain from being bogged down by technicalities at the expense of substantive justice. Article 107A
(2) (e) states:
107A ?
1)
---
2)
Katika kutoa maamuzi na mashauri ya madai na jinai kwa kuzingatia sheria, mahakama zitafuata kanuni zifuatazo, yaani:
-----
(e) kutenda haki bila ya kufungwa
kupita kiasi
na masharti ya kiufundi yanayoweza
kukwamisha haki kutendeka.
Meaning ?
107A (1) ---
(2) In determining Civil and
Criminal Matters court shall:
------------
(e) Administer justice without
undue technicalities.
That the courts should refrain from giving technicalities undue consideration was
also recognized in the case of General Marketing Co. Ltd. versus A.A. Shariff (1980) TLR 61 at Page 65 wherein Biron, J. held that ?
Rules of procedure are handmaids of justice and should not be used to defeat justice.
The same principle was also asserted in the cases of Rawal versus Mombasa Hardware (1968) E.A 392; and Manji Ltd. versus Arusha General Stores (1991) TLR 165.
In view of the above, I am satisfied that non-compliance with Rule 52 (1) of the
Tanzania Court of Appeal Rules, 1979 does not go to the root of the application so it is indeed a mere curable procedural irregularity.
It was cured when the respondent was served the day before the hearing of the application. For that reason the preliminary objection
lacks merit. I accordingly overrule the preliminary objection.
On the merits of the application, I am satisfied that the issue of the period of
limitation of the counter-claim is a serious triable point of law in the intended appeal. Under the circumstances, the issue of limitation
constitute sufficient ground for granting extension of time in order to establish whether or not the counter-claim and decree therefrom
are sustainable in law.
For the reasons stated above, I grant extension of time to lodge a Notice of Appeal
against the decision in Civil Case No. 139 of 1999 in the High Court of Tanzania at Dar-es-Salaam. The Notice of Appeal to be filed
by the 30th December, 2005.
DATED at DAR ES SALAAM this 16th day of December, 2005.
.RTF of original document