CIVIL APPEAL NO 288 OF 2021 AFRICAN BANKING CORPORATION T LTD VERSUS MUSSA MASEMBO

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM fCORAM: WAMBALI. 3.A.. MASHAKA. 3.A. And MGONYA, 3.A.) CIVIL APPEAL NO. 288 OF 2021 AFRICAN BANKING CORPORATION (T) L T D .................................APPELLANT VERSUS MUSSA MASEMBO...................................... ....................................RESPONDENT (Appeal from the Judgment and decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Luvanda, 3.) dated the 26th day of October, 2020 in Revision No. 505 of 2015 RULING OF THE COURT 9th August, 2024 & 31st January, 2025 MASHAKA. J.A.: The appeal is against the decision of the High Court of Tanzania Labour Division which upheld the decision of the Commission for Mediation and Arbitration (the CMA) save for the compensation which was reduced to twelve months, equals TZS 45,600,000.00. Dissatisfied, the appellant preferred the appeal predicated on three grounds which content may not be relevant to this ruling. When the appeal was called on for hearing, Mr. Mohamed Muya learned counsel represented the appellant whereas the respondent enjoyed the services of Mr. Dismas Raphael, learned counsel. Initially, having perused the record of appeal the Court invited the learned counsel to address it on the propriety of the appeal particularly on the presence of two certificates of delay. Mr. Muya conceded to the existence of the two certificates of delay. However, he amplified that the second certificate of delay came into being because the date in the decree supplied to the appellant was not the same with the date of the delivery of the judgment. Therefore, by a letter dated 7/05/2021 with Ref. No. AAA/2021/100 followed by the reminder letter dated 08/06/2021, the appellant informed the Deputy Registrar of the High Court on the anomaly and requested for rectification of the decree and a certificate of delay as the time to appeal had already lapsed. Consequently, the Deputy Registrar of the High Court issued the second certificate of delay but the corrected version of the decree was not supplied, he argued. Encountered with that situation, Mr. Muya beseeched us to allow him to go back to the High Court for the purpose of rectifying the decree so that it can be the same with the date in the judgment and request the Deputy Registrar of the High Court to cancel the first certificate of delay and to correct the second certificate of delay so that it contains the rectification as per the letter dated 7/05/2021. He also prayed that pursuant to rule 96 (7) and (8) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the appellant be granted leave to lodge a supplementary record of appeal containing the rectified decree and certificate of delay. In reply, Mr. Raphael referred us to the case of Juma Hassan Mohamed v. Tabu Ally Ngalanda (Civil Appeal No. 118 of 2021) [2024] TZCA 163 (5 March 2024, TANZLII) where the Court struck out the appeal when it had faced a similar situation, that is, the presence of two certificates of delay while the first certificate of delay had not been cancelled. It was his contention that, after the grant of the first certificate of delay, the appellant failed to file her appeal within the prescribed time and the second certificate of delay has no back up from the record of appeal, as there is no notification letter from the Deputy Registrar of the High Court that the rectified decree was ready for collection. Further, he argued that, the prayer by Mr. Muya to incorporate the corrected version of the decree and proper certificate of delay under rule 96 (7) and (8) of the Rules is irrelevant, as the provision of the law is applicable where there is a missing record which can be traced in the original file. He added that in the present appeal, as Mr. Muya was given ample time to peruse the original file and could not find the corrected judgment and decree nor the notification letter from the Deputy Registrar of the High Court. Given the circumstances, the learned counsel prayed for the appeal to be struck out and did not press for costs, as it originates from a labour matter. In a brief rejoinder, Mr. Muya maintained his stance that they had filed a letter to the Deputy Registrar of the High Court requesting for rectification of the decree before the lapse of prescribed time and to be issued with another certificate of delay. After hearing the arguments for and against from the learned counsel, the issue is whether the appeal before us is competent. The position is settled under rule 90 (1) of the Rules that, an appeal shall be instituted in a proper registry of the Court within sixty days from the date when the notice of appeal was lodged; save where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the impugned decision, time for preparation and delivery shall be excluded and certified by the Registrar of the High Court. In the instant appeal, there is no flicker of doubt that the appellant fully complied with the requirements of rule 90 (1) of the Rules as she wrote a letter to the Deputy Registrar of the High Court requesting to be supplied with the certified proceedings well within the prescribed time. The Deputy Registrar of the High Court responded and notified her to collect a certified copy of proceedings via a letter dated 31/03/2021 and also availed a certificate of delay dated 08/04/2021 excluding days from 27/10/2019 when the appellant requested for the certified copy of proceedings to the date of notification, that is 31/03/2021. In the circumstances, the time to lodge the appeal to the Court started to run from 1/04/2021 and the appeal ought to have been lodged on or before 30/05/2021. Before the lapse of the time to institute the appeal, on 07/05/2021 the appellant's advocate wrote a letter dated 07/05/2021 to the Deputy Registrar of the High Court on the anomaly concerning the decree that the date of delivery of the impugned judgment does not tally with the date in the decree. The said letter was followed by a reminder letter dated 14/06/2021. Consequently, the Deputy Registrar of the High Court issued a second certificate of delay dated 20/07/2021 excluding dates from 27/10/2020 to 14/06/2021 and the appeal was lodged on 13/08/2021. Now the issue for our determination is the validity of the second certificate of delay which was issued without cancelling the first certificate of delay. More so, there is no record from the Deputy Registrar of the High Court notifying the appellant's advocate to collect the rectified decree. Mr. Muya contended that the issuance of the second certificate of delay was due to the letter dated 07/05/2021 in which the appellant had requested for rectification of the decree. Mr. Raphael contested this point that the second certificate of delay had no backing from the Deputy Registrar of the High Court and no information was given on the reason it was issued nor did it cancel the first certificate of delay. We are in agreement with the argument of Mr. Raphael that, the Deputy Registrar of the High Court did not write any letter to the appellant's advocate in response to the letter received on 10/05/2021 with the view of notifying them to collect the corrected decree. More so, the Deputy Registrar of the High Court at no time availed the appellant with the rectified decree and there was no reason necessitating such issuance of a second certificate of delay. It is settled that two certificates of delay cannot co-exist in one appeal. See for instance, the decision of the Court in Vodacom Tanzania Ltd Company v. Commissioner General Tanzania Revenue Authority (Civil Appeal No. 117 of 2019) [2020] TZCA 349 (14 July 2020, TANZLII). Thus, one of the certificates of delay had to be cancelled for the remaining certificate of delay to become valid. As alluded above, the Deputy Registrar of the High Court never informed the appellant's advocate on the collection of the rectified decree and as gleaned in the record of appeal, the decree was never rectified. Therefore, in absence of a letter from the Deputy Registrar of the High Court notifying the appellant to collect the corrected copy of the decree, the second certificate of delay is invalid as correctly argued by Mr. Raphael. In the Board of Trustees of The National Social Security Fund v. New Kilimanjaro Bazaar Limited (Civil Appeal No. 16 of 2004) [2004] TZCA 20 (27 October 2004, TANZLII), we faced an akin situation in that the Deputy Registrar of the High Court failed to notify the parties on the availability of the requested proceedings and had this to say: "There should have been, in our \new, an o fficial communication from the Registrar to the learned advocates fo r the appellant that the documents requested in their letter dated 10.2.2003 were now ready for collection, and after that the Registrar would issue a certificate in term s o f Rule 83 (1) [now rule 90(1)]. We deprecate what appears to be the clandestine obtaining o f court documents and we cannot give our blessing to such conduct. We m ust discourage it a t any cost." In the light of the above holding, in the absence of a letter from the Deputy Registrar of the High Court informing the parties to collect the requested rectified decree, it raises a question on the validity of the issuance of the second certificate of delay as the first certificate of delay had not been cancelled. More so, such a letter is significant for the purpose of computation of time for institution of the appeal. For this stance, see for instance, in Hamamad Big Mohamed v. The Registered Trustees of Anjuman E. Saiffee & Others (Civil Appeal No. 301 of 2020) [2023] TZCA 17443 (20 July 2023, TANZHI). Indeed, in D. T. Dobie & Company (Tanzania) Ltd v. N. B. Mwaitebele (1992) T.L.R. 152, the Court observed: - "We have to point out a t once that the Registrar's certificate is not and cannot be; beyond question. It is true that the Registrar has pow er to issue the certificate under the proviso to ruie 83 (1) [now ruie 90(1)] o f the Court o f Appeal Ruies. But we are quite dear in our m inds that if there are grounds for thinking that the certificate is incorrect or otherwise improper, that wouldju stify interfering with i t " In view of the excerpt above and the facts of this appeal, the issuance of the second certificate of delay was incorrect and improper for want of a letter from the Deputy Registrar of the High Court informing the appellant's advocate to collect the rectified decree. As gathered from the record of appeal, the attached decree was not rectified. As there is no indication that the Deputy Registrar of the High Court had supplied the rectified decree requested by the appellant, the second certificate is invalid because it neither cancelled the first certificate of delay nor stated the reason for its issuance. In those circumstances, the first certificate of delay prevails and therefore the appellant had to lodge an appeal based on number of days excluded on it. We decline the request of Mr. Muya that the appellant should be granted leave under rule 96 (7) and (8) of the Rules, to file supplementary record of appeal to incorporate the notification letter from the Deputy Registrar of the High Court and the rectified decree. We respectfully do so because the letter from the Deputy Registrar of the High Court informing the appellant to collect the rectified decree was never issued, as it was not found in the original file which was availed to the learned counsel for the parties. The application of rule 96 (7) and (8) of the Rules could be relevant in this appeal, only if the Deputy Registrar of the High Court issued the letter but the appellant's advocate omitted to incorporate it in the record of appeal when he lodged it. So long as the second certificate of delay is invalid, what remains is the first certificate of delay which excludes days from 27/10/2019 to 31/03/2021 in which the appeal ought to have been lodged on or before 30/05/2021; and to the contrary it was lodged on 13/08/2021 which is a lapse of 135 days contrary to the dictates of rule 90 (1) of the Rules. In those circumstances, the appeal before the Court was filed hopelessly out of the prescribed time. In fine, we hold that the appeal is incompetent for being instituted out of time in contravention to rule 90 (1) of the Rules. Such an incompetent appeal must be and we hereby strike it out. We make no order as to costs. DATED at DAR ES SALAAM this 30th day of January, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 31st day of January, 2025 in the presence of Ms. Halima Semanda, learned counsel for the Applicant and also holding brief for Mr. Raphael Dismas, learned counsel for the Respondent, is hereby certified as a true copy of the original. £v. R. W. CHAUNGU -i ] DEPUTY REGISTRAR i ! COURT OF APPEAL