20170726 TZCA Dar es Salaam

- __ .. lN_T.HE ..CO.U.RT OF APP.EAL.OF. TANZANIA - AT DAR ES SALAAM ·(€ORAM·:·MJAS-IRI-,-J;A., MWARI.JA, J.A., And-MW·AMBEGELE,J:.·A-.} - -- - ClVIL A"J>i>-EACNO. 4 Ol= 2014 BISWADI SELENDA MSUYA ................._.................................. APPELLANT VERSUS [Appeal"from the Judgment and Decree of the High· Court of Tanzania -~---,... c• 1 · at Dar es Salaam] - (Munisi, J.) Dated 6 th day of August, 2012 In _ Civil Case No. 173 of 2005 ... RULING OF THE COURT 10th & 31 st July, 2017 · MWARIJA, J.A.: The appellant was the plaintiff in the High Court of Tanzania at Dar es Salaam. He instituted Civil Case No. 173 of 2005 against the - respondents claiming for general damages of Shs. 250,000,000/= for intrusion and harassment allegedly caused to him by the 3rd and 4th respondents who were at the material time, police officers stationed at Kijitonyama Police Station. He claimed also for Shs. 22,000;000/= as 1 ·-.·===========================.:: ·--··--- ·:. ··== __ . -· damaged by the 3rd and 4th respondents. He joined the Hon. Attorney ·-· ·------------- - - - respondent) in the suit. The case arose from the act complained of by the appellant in paragraph .6 of the plaint where he stated ~s foJJovys: (.. : > "That:·on or_·about J:zth Octobe~ 2004 af@iJntJC-12 .·':· c-·/_·~::.J{ i _:;;,', hours the.Yd/ 4th and Sh Defendants full armed and ··.·in police uniform invaded the Plaintiff at his place-of·· · · -:· ·· ;. -:.,.-,< ·;"; : 1 ,,.;. r; · · demolish his properties - the sawing machine at his·~.--,· . ·.: _:;.·-1~1e..:: - rhc f ..:..;; buildings valued at Tshs 22/000/000/-." He alleged that as a result of the acts of the 3rd and 4th respondents, he was caused to suffer "humiliation/ torture/ shock and degradation', thus the claim for the stated amount of general damages. He contended also • that on the material date, while in the company of other persons who were later introduced to him to be the workers of Yono Auction Mart, the 3rd and 4th respondents, in an attempt to· remove and take away the Saw Mill by 2 his claim for compensation. . . :_ - Tbe-claims-were.denied-by~the.respondents. Jt-.was-their.-defenGl:fthat2:t~= ::::- -- - the 3rd and 4th respondents went to the appellant's business place in execution of their duties as assigned .by their superior from Kijitonyama ... Police station. According to the 3ra respondent who testified as D.Wl~ th-eyj'd rc~;'l~r-;::: .. were sent there following the appellant's Gorn plaint against~the~·wor~ers i0fi~1"-:1;::·: 1~ ·s c·; i Yono Auction Mart who wanted to take away the Saw Mill on account that · they had been instructed by a bank - Akiba Commercial Bank to· ·which the appellant was.alleged to have an outstanding debt:· Itwas'the :respondents :-. :t:-~:_::F(,r,~ .. - - ' -- -· - - ·~ -_ .... - - , . , -- - '"' ~ defence further that following the investigation conducted by No".:: Dn8p48!·. _ i:1-.,•~>0~·-;:·:~- D/C Eliya (DW2), who was at the material time of the incident/stationed:at. ::--:t·r·-::•i ,_ Kawe Police Station, the Saw Mill was not damaged as alleged by the appellant. In her decision, the learned trial judge found that the appellant had failed to prove his claims against the respondents. She accordingly dismissed the suit with costs. The appellant was dissatisfied with the decision of the High Court hence this appeal. When the appeal was called on for hearing on 10/7/2017, the appellant appeared in person, unrepresented. On their part, the 3 ============================---_·_:.:·.·.::-...::. -~ --~~~-resper~-~~~ts=~~~~~~r-ep~~s:enteu__;_by-~M~r. __?ylve~te!~~Mw-al(ita lu,=-leaYneel__;_Serli~t:}r---·· --. State Attorney. Since by a notice filed on 4/7/2017, the respondents had --------· - - - - - - -filed-a--preliminar-y objection,we -deemed-it-proper- to- hea-r--'an'cl=dete"f-'mine- -~- -- that objection first. The preliminary objection consists of three grounds, that:- "1. The appeal.is time barred. 2. The appeal is incompetent and bad in 1aw for contravening:,7,;,;_:t.ci,t ;:;;71'; /,;._ .- the provisions of rule 96 of the Tanzanian C9urt of Appeal - -- 3. The appeal is not maintainable for failure to" con;,p/y- with--:tlie-. :.r·::.:_·:~·-:::/<~, .' _-.--)::- provisions of rule 106 (1) of the Tanzania Court- -of:-Appeal J._ .. :', - _, ' Rules, 2009. // In his submission, Mr. Mwakitalu abandoned the 3rd ground of the preliminary objection and proceeded to argue the 1st and 2nd grounds. With regard to the 1st ground, he argued that the appeal was filed out of the time prescribed under Rule 90(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). He explained that whereas the impugned decision was handed down on 6/8/2012, having filed the notice of intention to appeal on 14/8/2012 and after obtaining a certificate of delay excluding the period up 4 -- _:_ -,.t:_t0~2_:7{-;=-;-/~~J~--f0llowiR~-h!s-~1r,Elic~t_i•E?~~f0r:~epies-0f~~r~e"e~_el!n_~~ ,_J~_~g_~~~-~!~:-· - _- and decree, the appellant filed his memorandum of appeal on 27/1/2014 submission that the appeal is for that reason time barred. _-~- -? . .-._. '.:_:On-the-2~~- ground, the_ learned Senior State Attorney .argued,-. in the alternative. to the. pt ground, that the appeal ,is. defectiv.e..becau~e-copies.of some of the documents which were tendered -in. evidence as ,exhibits,,have= ·, • · ,, -, ., ,,--:·, not been included in the record. He submitted .that·1ttlle ,,record does not - contain the Registration Book and the Report -Book Whic;h were:tendered . ' . -and ·admitted -af the trial as ·exhibits D.: 't' and_·"[5/·-~·2'?.tespettive1y~rcthEf ·._-: .: -: Exhibits). He argued that the omission contraveR¢d; the provision of Rule -. _:. ·· · :- •-·- • 96(1) (f) of the Rules thus rendering the appeal--incompeterit. Citing the·:.--·,·:.,,; t-~~-- · Court's decision in the case of Municipal Director, Kinondoni Municipal Council v. N. W. Builders Limited; Civil Appeal No. 139 of 2015 (unreported), he urged us to strike out the appeal. Responding to the arguments made in support of the 1st ground of the preliminary objection, the appellant conceded that he belatedly filed his appeal. He explained that he submitted the appeal for filing on 26/1/2014 within time but the same could not be registered on that date. According to 5 --· --:,..:-:.his=su0-i:nission,:.-he..:w-as::t0la:_0y-:ar-r-ur-ldist;l0-secJ..:0ff-ieiill-of-t:lere=Eettf¥~registry-·· ~-,, .• - - - - - - --_--,.. .... --=--=~-=,~ -- --- ~ - __ :___ ~------- ~ - ------ -- · ··- ············ --------- - ~ - - - - - - - - ~ _ _ _ , . __________ -..._....,_----~ ---~ · - - - _-------, --- .•.• -~ to go back on 27/1/2014, the date on which he filed the appeal. - ·---.-- - - - · · - - - - - - - - .. - ........As--for -the alter-native-grouna. G0nc:erning-tt-le-•0m ission-to--inel uEle-the--· ··- Exhibits in the record of appeal, the appellant submitted in· reply that the .missing documents.. were .t.e.ndered at the trial...by .the defence.,...-He ... ·-. •.·. cqntended that the Exhi.bits w~re not in his ·possession, and .could notrlor. , ;, ·· ..... . - Having heard the parties, Wf}. .thin_k w_e need not be detained long in determining the prel1rninary objection. The:.'appellant_:ha-s :-conceded: tl)at:Me:·· :r ,., . fi[ed his appeaCoutsi~e_tbe. prescribE:!d perior{~of 6_Q;;day,s:. ihtaviff@ o6tai'n'eEl~r);Y-'.! i flt:_;/;/ the certificate of.· delay ·excluding the period· fro.m· 14/8/20t2-. ;wt.len:, he .·. ; , "·.. •. applied for copies of proceedings, judgment and the.:~dec::"ree- and-·· · 27/11/2013 when the copies were supplied to him, he ought to have filed his appeal by 26/1/2014. By filing it on 27/1/2014, he was late for one day. In his submission, the appellant attempted to show that he was prevented by the Court's registry from instituting the appeal when he submitted it on the last day of the limitation period. He was thus, in essence, attributing the cause of the delay to the Court. In so doing, he was improperly raising a matter which required to be substantiated by 6 =====-==--::==========-===============·--··-· ··-· I - - --- + , i---@vicienGe:.:r-1e~-sh0Hht---have,--f0r..::.tt-rat- -matt:er;-_:a:~plied~f0r--exter-1siert-ef-==time-se---· - · - _,=••a••- ••- ,___ •• ---•-~•,-•c,,-e--..-~ .-- .-,~• • , ... , ,, ____ ••~.-- .,...-,,_• -•••-• - •~•~• -•~•••,o.s••~•-ccc=-~o ~-~• ~ • • that he could have the opportunity of establishing existence of a sufficient .cause-for .the delay; being. the- alleged-inactiGn-by the--officials-of-the-C0urt!s- -· registry or otherwise. Since the appellant did not do so, the position remains that the appeal was filed out of time. The __ find_ing on the point of law raised on the 1~ ground, suffices to dispose of the. preliminary .objection. As-~a-: result,~ we fi.nd_~;=n0: ine_ed .:to· : : l' ;_ ... · consider the alternative ground of the objection: In· "the event; ·we find tHe · appeal incompetent for having been filed out--of ti•me--c1nd' hereby ·strike it · _o.ut :with costs. . .' • I: <.., ,:, ' ' !"•;-- /J> • ••-•• . . . • • ,. ~ DATED at DAR ES SALAAM this 26th day of July} 2017. S. MJASIRI JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the ori inal. 7