19920619 TZCA Dar es Salaam

.. ' IN THE COURT OF APPEAL OF TANZANIA AT DAR.ES SALAAM (CORAM; KlSANGA, J.A·.. , HAMADHANI , .. J.A. 1 AND ~ZAVh.S 1 J,1A•) CIVIL /\PPEAL NO. 3 OF 1992 BETWEEN D. T.- !>OBIE & COMPANY ('l'ANZ/\NIA) LIMITE:O • • APPELLANT · AND N. B. MWATEBELE. . . . •. . . . . . • • -.' • R£SPONDE.n7 (Appeel from thE: Decision of the High Court of '.r·anzania at Dar es Salee-111) dated the 24th day of Sept., 1990 · in Civil Appeal No. 35 of. 1988 -----·---- R U L :c N G When this appeal was due :·or he;iir1ng, Mr. K. ~ ~ learned counsel for the respondent, filed a notice of mot.tp raising a preliminacy objection that the- appeal is time barred.· The background to the matter: is quite short. Mr. Uaantift learned advocate for the appellantr had written to the Registrar, High Court, for the supply of a typed copy of proceedings for the purposes of preparing the record of appeal in this case, and the same was duly supplied on 11.11.91. He hOt1ced, however that the reccu::d was incomplete and therefore he addressed another letter to the Registrar r~questing ',:to be _supplied with ·the missing part or parts. The Registrar wrote back on 13.12. 91 s·ayirig that what he had supplied was the complete set and _that there was no ••••• /2 2 ,ft:•···- ...... ~' · ·--~-missing... - This_was--.foU.owe<l- by requests to the .Registrar for a certificate under rule 83(1) of the Ccurt of 'At>p:!~l Rules which certificete was eventually supplied to the leerned counsel on S.1.92~ The relevant part of the certificate reads:- 1'This is to certify that ~ period· from 3rd January, 1991 when M/s. Donal~son and Wood and co. Advocates for the Appellant. ap~lied for copies of certified proceedingt to 13th December, 1991 when the same were supplied.to the Appellant's Advocate is to be excl~9ed as such ctays were required ~or the ~reparation and delivery qf the ;,roceedings to the said Advocate."• Relying on this certificate, Mr~ Uzand~ filed the t9~t9ea1 . Mr. R8 ithatha's contention as we understand it 1~ to the effect that the Registrar's ce±-tificate i~ mit!le-ad~ because it talks of sup_plyihg a copy of p.t:ocee<lings to counsel for the ap~ellaht on 13~12.91 when in fact tho~• proceedings were supplied on 11. L ... 91. Emphasizing that no proceedings were in fact supplied on 13.12. 91, he contended that the limitation period ought to run from 11.11.91 when the proceedings were in fact sup,lied and •ot from 13.12.91 as the Registrar':s cer".:ific:ate r,ur:,orts t~ I· say, because no proceedints were supplied on that day. Thus, Mr. Rai tha tha· went on t the. appe 11 ant ought to have .,,, filed the a~peal within 60 days of· his receipt of the co~y of pr9ceedings on 11.11.91, which gave him upto 12.1.92. / The appellant, however filed the appeal cnly on 17.1.92 1 which made him out of time by S days. Resisting the objection, Mr. Uzanda argued that the appeal was in time because it was within the.time limit set out in the Registrar's certificate. He submitted further that. the Registrar was empowered by the Court of A~peal Rules ••••• /3 3 - to- 1.ssu.e the ·ce:r-tificete and that it was T'Ct compet&nt to . ,question or go behind such certificate. We have to point out at once that the Registrar's certificate is not, and cannot be, beyond questio.n. J:t is true that the ~istrar has. ~ r to i•s.ue t:.h4!. c~~~f'ie-.a~ under the proviso to rule e3(1) of the Court of ~e~l Rules. But we are ~uite clear in our minds thl'!lt if there are grounds for thinking that the certificate is bicorreet or other,,ise lmpro~er, that would justi~y in~decift(J with it. However, we are satisfied ":hat there are no. g.rOur":hJ for interfering with the -certificate in this ease. As stated earlier, when Mr. U~a~da received the <;~~y of proceedings 9n.11.11.91 and noticed th~t so11e-part waw missing, he wrote to the RegistrBr tD request for the iu..,i.-, /part, but the Re_gistrar . replied on 13.12._91 8&ying thl'lt ~ what he had supplied was the complete set,. and that there was no part missing., A glance through the recorn of ai,pael confirms Mr •. Uzanda' s claim that the i,roeeedings• sent to him were incomplete even though the Registrar's assurance is to t~e contrary. For example, Mr. Uzanda· nad asked to be supplted with the first par~~· of the ~r?ceedlngs· whic:h,. both CoUnsel who also represented the ~erties at the trial are agree<l, related to the. giving_ of the ex-r·arte judgement, but that part c.f the proceedings is· not reflected on the record of appeal~ Mr. R~ithatha argued that in any case the ex-r,arte Judgement was not essential for· the preparatioh of the record of ap~eal. For, the. ex-parte judgement was set aside, and the suit proceeded to ·nearing leading to this. judgement n0w. being appealed \ ........ /4 rrr 4 --- again~J. So tha.t, ceuns':'!l argued, the non-inclusion of it in the proceedings by the Registrar could not constitute •, a valid ground for Mro Uzanda writing to request for the supply o~ it and thereby prevent the limitation. period from starting to run against him. We have carefully cons~ dered this subridssi on but we coUld not acceed to it.,. Mr .. 'Jzanda had the conduct of the case. As such he was entttlerJ to require to be sUpplied with. the material which he co:,:.sidered necessary for the preparation of the record of c<>Peal.. Perhaps one can say with some justification that t;,e ex-parte judgement wes not necessary for the preparatJ.on of t)'le record of appeal - . after one· has studied the proc0edings closely and after deciding what grounds of appeal one was going to :raise. But it is less certain whether c;ie could do. so only after the initial perusal of the proceedingso Mr. Uzanda wrote to request for the missing part of the proceedings on 13.11 .. 91, that is, only about ·a dvy or two after receiving. the set of proceed5.ngso It 1s obv-:tous that he wrote the reque ,st only after the initial and c;uick perusal of the proceedings. It could be doubted whether at that .stage hP. could say wl th certainty that the ex-parte judgemer,t would not be necessary for the preparation 0£ the record of appeal .. In this respect it is pertinent to note Mr. tlzanda 1 ~ remarks at the hearing of this objection that even after rec el ving the Registra.t:·• s reply that the set of proceed:tngs sent to him was complete, when in fact it was not 7 he was still of the view that he needed the missing part but: thought that .it was .... ~.-/5 I ! I I I i - 5 l"ointless to persist on his• request because it was then evident that 1 t would yield no re'sul ts. Consequently he decided not to write ftirl:her on that· aspect of the matter and ins.tead proceeded to prepare the record on the incomplete set of proceedings. We are therefore satisfied that Mr. Uzanda had reason to write to the Registrar to ask for the missing part of the ..,, J>rC>Ceedings, and the question now 1s: What effect, if anyf did this have on the limi ta ti.on period? Mr. Rai thatha takes the view that since the Re.(listrar replied saying that ~• set of proceedings sent was complete, then the period of limitation started to run as t·rom 11.11.91 i.e. the very day the said proceedings were sent. For, counsel went on, the Registrar did not send any~hing on 13.12.91 when he wrote to say t})ctt the set c,f p;-·oceedings was complete. In this connection Mr. Rai thatha pointed at the Registrar•~ certificate as being erroneous £or citing 13.12.91 as the day when the proceedings were supplied to counsel for the appellant because, he stressed, ·r10thing was sent on that· day. Although this argument has some force, we are of the vie·w that it cannot succeed. We think that wheret as. in this case, a party on reasonable ground~ writes to the I Registrar asking for missing part or parts of the proceedings, I the period of limitation does not begin to run against such I I ~arty until he receives either the part of proceedings asked for or an assurances that the proceedings sent to him were complete and there is nothing further t0 be supplied. The question whether the missing part was necessary for the preparation of t.he record of appeal is no doubt relevant ••••• /6 - 6 - but the decisioh of· the Court on that issue must del"end on the facts and circumstances of each case. As has been shown, Mr.. Uzanda in this case did not receive the missing part of the proceedings which he had asked for. Rather he received the assurance, which was obviously erroneous 1 that the set of proceedings sent to him was complete end that thel:e was nothing further to be communicated to him. That assurance was sent to him on 13.12.91. In our view that was the date on which the period of limitation began to run against him. Under rule 83( 1) of the Court of Appeal Re.le s he was .required to lodge the appeal within. 69 days from chat date. He was well -1 within that period when he did '. .edge the appeal on 17. 1. 9~. Admittedly the Registrar'8 certificate is misleading for referring to 13.12.91 as the date on which the copy of proceedings was sent to the appeJlct.i-h's advocate. For, as Mr~ Rai thatha rightly pointed out, no proceedings we.re sent on that day. We think, however, that this was a mere slip of the pen, and that the RegiGtrar must have meant to refer to that date as being the date on which he informed the ·appellant's counsel that the se'i:: of proceedings sent to him earlier on was completeo At any rate, we are ~uite satisfied that the error was harmless and did not affect the Validity of the certificate, and that Mr. Uzanda was . . r,er:feetly entitled to rely on it, as he did, in lodging the appeal. • •••• /7 .. ·- 7 .;;.· In the zel5U1t· the pNlifflin~~y object!~~- f'et;8 ~nd it ia ~cC!Qrding,lY'.: <1i1lfl)l,a~- with costs~ · . DATEO at l)AR ES SALAAM th.is ,I "o/ dey of R.' H.'. KISANc.A· ~Stict·oF APPEAL, A.' s•. ,L. RAMADHANI JUSTICE PF APPEAL N. ·s. MNZAVAS JU STICE OF AP.PEAL. ... ,. I eei'ttty tha~, tliil.~ ts· a true c:opy of the ori.g:111al. Jbtcit-j~ ( L. · B. KALEOEYA ,) . SENIOR DEPUTY REG>siF~ . I •