alexander leonard nziku vs national bank of commerce limited another 2018 tzca 400 11 may 2018

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: LUANDA. J.A.. MZIRAY. J.A., And NPIKA, J.A.^ CIVIL APPEAL NO. 12 OF 2016 ALEXANDER LEONARD NZIKU........................................................ APPELLANT VERSUS 1. NATIONAL BANK OF COMMERCE LTD~1 2. MAJEMBE AUCTION MART LTD _ J ........................... RESPONDENTS (Appeal from the Judgment and Decree of the High Court of Tanzania at Iringa) (Kihwelo, J.) dated the 29th day of March, 2016 in Civil Case No. 1 of 2013 RULING OF THE COURT 8th & 11th May, 2018 NPIKA, J.A.: This appeal arises from the judgment and decree of the High Court of Tanzania sitting at Iringa (Kihwelo, J.) in Civil Case No. 1 of 2013 dismissing the appellant's suit against the respondents principally for the claim of certain sums of money being specific damages and interest thereon. The claim was based on losses alleged to have arisen from the first respondent's cancellation of a loan agreement entered with the appellant without prior notice, seizure of the appellant's mortgaged truck and fees or expenses incurred by the appellant for processing the loan as well as procurement and maintenance of the aforesaid truck. Briefly, the appellant claimed that on 24th November 2009 he executed a loan agreement (Exhibit P .l) with the first respondent to finance the procurement of a truck specified as "Scania 124 - 360" and its trailer at the price of TZS. 140,000,000.00. As agreed, the first respondent advanced TZS. 98,000,000.00 towards the purchase price at the interest rate of 24% per annum, both principal and interest being payable within thirty-six months from the date of receipt of the truck by the appellant. The aforesaid loan was secured by a chattel mortgage over the truck and its trailer after it was purchased. The appellant paid the rest of the purchase price (i.e., TZS. 42,000,000.00) directly to the supplier of the truck, that is, Messrs. Morocco Commission Agent Limited. He also claimed to have paid fees for processing the loan agreement and incurred expenses for buying comprehensive insurance cover as well as repair of certain defects in the truck and its trailer, all of which amounted to TZS. 70,125,800.00. The truck and its trailer, registered in the appellant's name as T596 BFA and T592 BFB respectively, were supplied as agreed. In accordance with the chattel mortgage, the original registration cards were retained by the first respondent. The appellant claimed further that he was astounded that the second respondent, acting on the instructions of the first respondent but without any colour of right, seized the truck and its trailer on 22nd December 2010 midway to Dar Es Salaam from Njombe while they were loaded with a customer's cargo. It was alleged that the aforesaid seizure amounted to a breach of contract and resulted in a loss of TZS. 210,000,000.00 to the appellant. In the suit before the High Court, the appellant sought to recover from the respondents the aforesaid sum of TZS. 210,000,000.00 as well as the sum of TZS. 70,125,800.00 mentioned earlier, both sums being specific damages. In addition, he claimed interest on the aforesaid sum of TZS. 210,000,000.00 at the rate of 25% as well as interest on the decretal sum at the court's rate and costs of the suit. The suit before the High Court proceeded ex parte following the respondents' failure to file defence as they did not submit themselves to the said court's jurisdiction. In its judgment dated 29th March 2016, the High Court dismissed the suit on the ground that it had no jurisdiction to entertain 3 the matter as the appellant and the first respondent had agreed under the Dispute Clause in the loan agreement (Exhibit P.l), that is Clause 1.1, that: 7/7 case o f any dispute arising out o f the interpretation, performance, or non-performance o f the term s and conditions contained therein, the parties hereto irrevocably subm it them selves to the Com m ercial Division o f the High Court o f Tanzania for adjudication o f the dispute." It is the aforesaid dismissal of the suit that is the subject of the present appeal. When the appeal came up before us for hearing on 8th May 2018, the first respondent, through the services Mr. Tazan Mwaiteleke, learned advocate, raised a single point of preliminary objection a notice of which he had filed on 27th April 2018. The said point was thus: "The appeal has been lodged in Court without the due Notice o f Appeal and Letter requesting for records being served on the Respondent as p er Rule 84 (1) and (2) o f the Court o f Appeal Rules, 2009 ." Submitting on the first limb of the preliminary objection, Mr. Mwaiteleke argued that the appellant, having lodged his notice of appeal, omitted to serve it on the respondents contrary to the mandatory provisions of Rule 84 (1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). Referring to the notice of appeal, appearing at pages 128 and 129 of the record of appeal, he contended that it contains no proof that it was, indeed, served on the respondents. Relying on the decision of this Court in National Housing Corporation v Asgarali Habibu Kassam Manjji, Civil Appeal No. 112 of 2016 (unreported) for its holding that failure to serve a notice of appeal on a respondent constitutes failure to take an essential step in pursuing an appeal, the learned counsel urged us to strike out the present appeal for the appellant's omission to serve the notice of appeal. He also pressed for costs. Although Mr. Mwaiteleke initially pursued the second limb of the point of preliminary objection that the appellant too omitted to serve on the respondents a copy of the letter applying for a copy of the trial proceedings, he abandoned that line of argument upon realizing, at the Court's prompting, that the notice of preliminary objection does not set out the specific provisions or grounds upon which that limb of objection was predicated contrary to the mandatory requirement of Rule 107 (1) of the Rules as amended by the Government Notice No. 362 of 2017. Replying, Mr. Erick Nyato, learned counsel for the appellant, conceded that there was, without a doubt, no proof in the record of appeal that the appellant served the notice of appeal upon the respondents within the prescribed period of fourteen days after it was lodged. He further conceded that failure to serve a notice of appeal, contrary to the dictates of Rule 84 (1) of the Rules, rendered the appeal liable to be struck out. Although initially he prayed that costs be waived, he acknowledged in the end that costs should follow the event. As rightly submitted by Mr. Mwaiteleke and acknowledged by Mr. Nyato, it is a mandatory requirement under Rule 84 (1) of the Rules that an intended appellant must, within fourteen days after lodging a notice of appeal, serve copies of it on all persons who seem to him to be directly affected by the appeal. Moreover, as admitted by both learned counsel it is settled that failure to serve a copy of the notice of appeal on a respondent is taken as failure to take an essential step in furtherance of an appeal: see, for instance, National Housing Corporation v Asgarali Habibu Kassam Manji (supra) cited to us by Mr. Mwaiteleke. A much earlier decision on this point is D.P. Valambhia v Transport Equipment Ltd [1992] TLR 246 in which the Court held that such failure, whether occasioned by negligence and/or inaction, is a failure to take an essential step in pursuance of the proceedings rendering the appeal liable to be struck out. See also Sao Hill Industries Ltd v Edigary Telesphory Mwaifyeya, Civil Appeal No. 15 of 2014; and MIC Tanzania Ltd v Adam Messer and Another, Civil Appeal No. 72 of 2010 (both unreported). In the instant appeal, it is on the record that the appellant duly lodged its notice of appeal on 5th April 2016 to challenge the High Court's judgment and decree dated 29th March 2016. Since as it is evident from the record of appeal, and also conceded by Mr. Nyato, that the appellant did not serve copies of the notice of appeal on the respondents contrary to the dictates of Rule 84 (1) of the Rules, we sustain the first limb of the first respondent's preliminary objection and hold the appeal incompetent for failure to take an essential step within the prescribed time. Accordingly, we strike out the appeal with costs. It is so ordered. DATED at IRINGA this 10th day of May, 2018. B. M. LUANDA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. E.F. FU^SI DEPUTY REGISTRAR COURT OF APPEAL \ 8