19981217 TZCA Dar es Salaam 1

• IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MAKAME , i[_~-~)lf1FAL ILA , J. A• , Anci___}ANA.t'IA J J A. ) CIVIL APPEAL NO. 55 OF 1~96 BETVvEEN CRESTHALE (UK) LIMITED (In Compulsery Liquidatien) .. . APPELLANT AND --------- BQJ:JDENI , ____ SEEDS LD\HTED ..•...... RE3PONDENT --- (Appe'at ,f_rem the Ruling of the High · Court of'Tanzania at Arusha) QVIunu• , J • ) / dated the 21st_ day of ~une, 1996 in Civil Case Ne. 3, ef 199?. RULING OF THE COURT SAMATTA, <!-~: This is an appeal frem a ruling of the High Court (Munuo, J.) dated June 21, 1996, striking out with costs a suit filed by the appellant against the respondent on the ground tha-. ~ the plaint disclose·d n• cause ef action •. When the appea.l came on for hearing, Mr. Ngalc, counsel for the respondent, raiseti, pursuant to a notice he hai given under Rule 100 of the Tanzania Court' ef Appeal Rules, 1979 (hereinafter referred to·. simply as II the Rulesn), a preliminary objection that the · _appeal is time-barrei. _ four we~ks eut of time. It is alse net in dispute that no c•py jf the l~tter add.ressei tct the Registrar of the High Court applying fer' a c:•PY •f the preeeedings, ruling and decree was sent t• th~ resp~ndent. The appellant was not ' - 2 .,. therefore entitled to rely, with regard to computation of time within which to lodge the appeal, on the exception to sub-rule (1) of Rule 83 of the Rules.• Mr. Ngalo submitted that, having been lodged beyond the prescribed period of sixty days, the appeal is incompetent in lavr and ought to be struck out with costs. The learned advocate reminded us of the following passage from the judgment of this Court . in ·D.P. y_al~rnbhia v Trans-oort Equipment Ltd. [19927 T.L~R. 246 at p.259: ll ... Rules of court were created to act as vehicles to enable this court to dispense justice between parties, and the c~urt's t~sk in this direction is made easier if the rules are complied with. The general rule therefore is that this c6urt will le~n towards strict compliance with the rules, only to be depart from this general rule in cases where it is clear that strict application would not be in the interests of justice.It While conceding that there is no record showing that a copy of proceedings, ruling and decree was ·sent to _the respondent or ::..ts aJvocates, Dr. Kapinga urged us tu dismiss the preliminary objectim). · He contended that the omission to send the copy of the letter to the respondent occasioned no miscarriage of justice and, therefore, this Court should invoke the provisions of Rule 3 and depart from the provisions 83 (2) of the Rules. The learned advocate submitted that .as the respondent did not.take any I step geared at haying the Notice of Appeal in the case struck , eut under Rule 82 of the Rules it cannot be sci.id that the. respo'ndent was prejudiced by .the appellant's failure to 3 lodge its appeal withtn 'the prescribed period of sixity days. Contend.ing that being out of time is a tec~nicali ty which falls under Rule 3 of the Rules, Dr. Kapinga cited, in support of· his ,submission, Nimrod Jnt_:r,_~t~__E?_JRS'_ll Mkono v in which this Court said, inter alia: ii ••• justice should always be done without undue regard to technicalities. 11 In his valiant effort to persuade us to hold that his client's appeal has legal feet, so to speak, on which to stand, the learned advc)cate 0.rew our attention to Order 2 (:l) of the Rules of the Supreme Court of Justice in Engl(4nd, which reads: 11 1. - (1) Where, in beginning or· purporting to begin any proceedings or at any stsge in the course of or in connection with any proceedings, there has, ·sy reason of any thing done or left undone, been a failure to comply wi-:;h the requirements of these rules, whsther in respect of time, place manner, fJrm or content or in any other respect, ~he failure shall be treated as an ir:·egulari ty and shall not nullify the pro~eedings, any step taken in the proceed~ngs, or any document,judgment or terder therein. (2) Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1) and on such terms as to costs or othe·rwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment o,::, 0 •• / 4 r . ... 4 order therein or exercise its pewers ur~der these rules to allow such amendments (if any). to be made and te make such erder (if any) dealing with the proc~edings generally as it thinks fit. ( 3) The Citurt shall not wholly set aside any proceedings or the· writ •r~other originatirig process by' which they were begun on the. ground that th: proceedings were required by anr_of these rules to be begun byar: originating proGess ether than ths OLe empleyed.1r Te do justice to the above ::ompeting arguments we think it is necessary to cite _i11 __1~tenso Rules 3 and 83 (1) and (2) of the Rules, The :ormer rule reads; 11 3. - (1) The prac-:;ice and procedure of Court in connectior. with appeals and intended appeals frcm the High Court, and the practice anc'. procedre of the High Court in conne::tion with appeals to the Court shall ·:·e as pres8ribed in· these Rules, but th:: Court may at any time, direct a depa:~ture from these Rules in any case ir. which this is required in the intsrests ef justice. (2) Where it is necsssary to make an order for the purpotes of - (a) dealing with any raatter for which no provis:on is made by these Rules IT any other written law; (b) better meeting the ends of justice; or (c) preventing an abuse of the process of the. C-ourt, ••• /5 5 the Court may, on applicati•n er c-n its own motion 1 give directions as tci the procedure to be adopted er make c1ny other order which it considers necessary. 11 Rule 83 (1) and (2) reads as follews: 83. - (1) Subject to the provisions of B.ule 122, an appeal sha11 be instituted by i~dging in the apprepriate registry, ,· wi.thin 3ixty days of the date when the notice of appeal was lodged - (a) a memorandum of appeal, in quintuplicate; (b) the record of appeal, in quintuplicate; (c) the prescribed fee; and (d) security for the costs of the appeal, save that where ~n apJlication for a copy I of the proceedings in the High Oeurt · t has been made within thirty days of the date of the decision against which it is des irrcd to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the, ;:(egistrar of the High Court as having been required- £ or tie preparation and delivery of th2,t copy to the appellant. (2) An appellant shall no~ be entitled to rr2ly .on the exception to sub-rule ( 1 ) urilesii his·application for the copy was. iri writing and a copy of it was sent to the respondent. 11 Sub-rule (3) of this R.ule is irrelevant to the issue ·1-tefore us, and Hule 122 deals with .relief from fees and sec_urity, and is 1 'therefore, not of any relevance to the , ..... 6 ti.etermination of the preliminary objection. The que.stien which falls for determination pei::·e i 9 a· short 0ne ~ namely,. vV:hether this Court can invoke the provisions of J.ule 3 e£ the Rules .i.n favour off party who has lodged an appeal out •f time, arid entertain the appeal. In his int~resting submission Dr. Eapinga sought to d.Lstinguish Valarnbhia'..s case supra and sj_milar cases on the gr0und that in those cases this Cou:ct was not .L1vited by the appellants to invoke its powers under 'lule 3 of the Rules. -V.!e have given the quisti•n,.before us anxious and careful consideration and in ➔;he 1rpF'J1•t.we are satisfi2d, in spite of the ingenuity displayed by Dr. Kapinga in presenting his argument, that the provisions of Rule 3 c~nnet be prayed in aid to save an appeal, like the j_nstant one, which ha.s been ·1odg,2d out of time. Those provisions, in o,ur •pinion, cannot be used_ te,_ circumvent the rnanq.a:t•ry provisions of the rules laying ct,wn time li1:1its within which legal steps should be tEf,~en. ·. The framers of the hules no doubt realised that sometimes liti- \ ', gants may, for sufficient. reasons, fail to comply v-1ith those provisions, and accordingly they enacted ~ile 8 of the Rules to protect the interests of justice of such litigants. Th2.t Rule reads: tts. The Court may for sufficient reason extend the time 1imited by these Hules or by any decisien of the Court er ·of the High Court for the doing of 2-ny act authorised or required by these itules, whether be:f ere or after the expiration of that time and whether before er after the doing of the act, and any reference in these Rules to_ any suc_h time shall be cens,trued as a reference to that time ar, so extended. 1 ... /7 I '- ,. 7 In our •pinion, it is not correct, as was conte:1.ded by Dr ✓• Kapinga, thgt the respondent has not been '.:)rejudiced r . by the appellant purporting to fil':? an appeal against Munu J 1 J's·ruling out· of time. When the period within which the BJpellant could in law lodge the . appeal expired, . the respondent became entitled to enjoy the fruits cf that ruling. In this connection we wish to draw attention to th~ fell owing words of Harmar~, J., in his judgment in Jacob.son v 11 It is important that li tigan:ts should ••• not be shut out from their rights but it is I e~ually i~portant that a litigant who has obtained a judgment in his favour should not have it taken fway from him except in ••• special circumstatice~. It is in the public _interest th~lt there should be an end of l·itigation. 11 The appellant, for reasons unl-<11.own toys, did not find in it necessary to ask this Court to bring the provj_sions of Rule 8 of the Rules into play. It has no one to blame but .itself if that provision proves, as it does, to be fatal to j_ts (the appellant's) appeal. The respondent~ it Js true, did D-•t apply under Rule 82 0f the ,={ules to have the Notice of Appeal struck out, b.ut it was not obligPd to do soo No . amount of inaction on the.part of +he respondent would give the appellant the right to file its appeal. after the pres- , cribed period of sixty days. \lfith regard to the provisions of Order 2 Flu.le ·1 ,rf the rules applied in r~ngland by the Supreme Court of Justice 1 we think it sufficient to observe, as we do 1 tbat there are no provisions j_n the ,tul0.s which are even remotely similar to those provisions. We do not find those provisions of assistance to us in the determination J ., 8 ,f flr. Nga1o 1 s p:celiminc'lry ob,jectioh. 'Ji th all the good _will in· the world, we are unable to find a':J.y rrerit in Dr. Kapinga's argument. For the foregoing reas0r!s, we uphold the preliminary ebjection and str·ike out the purported- appeal w.i th costs. Df.iT.sD at DAB. ES S11..L,\.\/I this 17th day of December, 1998. JUSTICE: OF APPE.t\L JU:3TICE OF ·APPEAL I certify that this is a true copy of the original. REG IS TR.Li.R (CA)