20150618 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 140 OF 2013 Original Civil Case NO 241 of 2004 Ilala District Court AKIBA COMMERCIAL BANK .......... APPELLANT V PETER JOSEPH MUSHI .............. RESPONDENT Date of last Order 12/3/2015 Date of Ruling 18/6/2015 RULING A.Shangwa, J This is a preliminary objection raised by the Respondent Peter Joseph Mushi against the Appellant's appeal. The Respondent contends that the appeal is time barred. The issue to be ' I 2 determined therefore is whether or not the appeal is time barred. The Respondent's counsel, Mr. Kitare submitted that the appeal originates from the decision of the Ilala District Court in Civil Case NO 241 of 2004 and that the limitation period provided for such an appeal is 90 days from the date of the decree. He referred the Court to item 1 of part 11 of the First Schedule to Law of Limitation Act, 1971 Cap 89 R.E 2002 which provides as follows and I quote:- "Appeal under the Civil Procedure Court where the ' I 3 . d __ OJ--_ · -·- -- --- - - -- - - -- -- peno ,F L'irrutq,tJQl]_ . . . is not othenuise provided for by any written Law .. -. ninety days." Mr. Kitare submitted that the decree was issued on 2 nd April, 2013 and that the Memorandum of Appeal was filed on 1st November, 2013 which was after 213 days instead of being filed within 90 days as required by the above quoted provision. Mr. Kitare further submitted that the Appellant cannot even take advantage of S. 19 (2) of the Law of Limitation Act which provides for exclusion of the time requisite for obtaining a ,. 4 -copy- of_ the_ Decree_ or order_ app~aled from when computing the period of limitation prescribed for an appeal. He contended that the Appellant cannot take such an advantage because he did not apply for certified copies of the judgment and decree under O.XX r. 20 of the Civil Procedure Code which provides as herein below:- . "Certified copies of the judgment and decree shall be furnished to the parties on application to the Court and at their expense". 5 -Mr. -Kitare_prayed _the_app~al t_o _be dismissed with costs for being time barred. Learned counsel for the Appellant LEGAL LINK ATTORNEYS Conceded that the Ilala District Court's judgment was pronounced on 2 nd April, 2013 and the appeal against it was filed in this Court on 1st November, 2013 but they argue that the appeal is not time barred. Their argument is based on the following reasons:- first, that immediately after judgment, the appellant wrote a letter to the District Court of Ilala dated 3 rd April, 2013 requesting for certified copies of judgment and decree and that the said letter was received by the said Court on 23 rd May, 2010. •' 6 Second, that the Appellant obtained the certified copies of the judgment and decree on 15 th October, 2013 and that the Exchequer receipt for collection of the judgment and decree was annexed on the Memorandum of Appeal which was filed on 1st November, 2013. Third, that the time of appeal started to run as from 15th October, 2013 when they were supplied with copies of judgment and decree. Fourth, that they filed the appeal on 1st November, 2013 fifteen days after receiving copies of judgment and decree which was within the 90 days statutory period for lodging the appeal. 7 In actual fact, the Law is clear that in computing the .period of limitation prescribed for an appeal, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from, shall be excluded just as per S. 19 (2) of the Law of Limitation Act Cap 89 R.E 2002. In this particular case, it is not in dispute that the limitation period for appeals arising from the decisions of the District Court to the High Court is 90 days as per Item 1 of part 11 of the First Schedule to the Law of Limitation Act Cap 89 R.E 2002. It is not in dispute also that in 8 computing the period of limitation, the time requisite for obtaining a copy of judgment and decree appealed from has to be excluded as per S. 19 (2) of the Law of Limitation Act, Cap 89 R.E 2002. What is in dispute is whether or not immediately after pronouncing the judgment of the District Court of Ilala on 2 nd April, 2013, the Appellant did apply for copies of proceedings and judgment as per O.XX r. 20 of the Civil Procedure Code. Counsel for the Appellant submitted that the Appellant did so by its letter dated 3 rd April, 2013 and that its letter was received by the 9 District court of Ilala on 23 rd May, 2014 as per the court's stamp. In my view, a letter written by the Appellant's Advocate on 3 rd April, 2013 requesting for copies of judgment and decree could not have been received by the District Court of Ilala on 23 rd May, 2014. This is because the Appellant's Advocates and the District Court of Ilala are situated within the city of Dar es Salaam. It is incredible therefore that this letter took a period of more than one month from the date of its writing to the date of its receipt. I think therefore that this letter was merely concocted to cover the situation after finding that the Appellant was out of time to file 10 its appeal and for the -purposes of manipulating O.XX r. 20 of the Civil procedure Code which requires a party to the proceedings to make a formal application for being furnished with copies of judgment and decree. Another problem is that there is doubt as to whether or not the Appellant obtained certified copies of the judgment and decree on 15th October, 2013 as submitted by counsel for the Appellant or before that date. The Appellant's counsel stated that they annexed an Exchequer Receipt on the Memorandum of Appeal for collection of the judgment and decree. It is Exchequer receipt NO 0266406. It is for Tshs 4, 11 000 / =. However, this receipt has nothing to do with collection of judgment and decree. It is for filing the Memorandum of Appeal. Due to the fact that it is doubtful as to whether or not the ·Appellant obtained certified copies of the judgment and decree, it is not safe to conclude that the time of appeal which was filed on 1st November, 2013 started to run on 15th October, 2013 as submitted by counsel for the Appellant. For these reasons, I agree with Mr. Kitare for r i: 12 Delivered in open Court in the presence of Mr. Kitare for the Respondent holding brief of Mr.