20040520 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LUBUVA, J.A., MUNUO, J.A., And KAJI, J.A.) CIVIL APPEAL NO. 39 OF 2003 BETWEEN DEOGRATIUS NJUWA ........ ■- •••••••••••••••••••••• APPELLANT AND THE REGISTERED TRUSTEES OF BIBLE SOCIETY OF TANZANIA ............... RESPONDENT [Appeal from the Judgment of the High Court of Tanzania at Dodoma] (Kileo, J.) dated the 12th day of July, 2000 in Civil Appeal No. 20 of 1999 RULING KAJI, J~A.: When this appeal was called on for hearing, Mr. Nyabiri, learned counsel for the respondents, The Registered Trustees of Bible Society of Tanzania, raised a preliminary objection, notice of which had duly been filed under rule 100' of the Court Rules, 1979 . .He prayed for an order that this appeal be struck out with costs on . the following grounds:- • I 2 t 1. That this appeal is time barred in view of the provisions of Rule 83 ( 1) of the Court Rules, 1979. 2. That the appeal is incompetent in law for contravention of the provisions of Rule 83 (1) and (2) of the Court Rules, 1979 for:- (a) Failure to apply for a copy of proceedings of the High Court within 30 days. (b) Failure to serve a copy of the letter of application for record of the High Court to the respondents. In elaborating those grounds Mr. Nyabiri, learned advocate, stated that the judgment which the appellant is appealing against was delivered by the High Court on 18th July 2000 in the presence of the appellant in person. He lodged his Notice of Appeal on 2~ rd July, 2000. But he lodged his memorandum of appeal in 2002 on a date and month which were not shown. Further more, the appellant applied for a copy of proceedings on 4th September 2002 which was outside the prescribed period of 30 days from the date of judgment which was on 18.7.2000. 3 ' It was the learned advocate's submission that this disentitled him from the exception provided for by Rule 83 (1) ·of the Court Rules, 1979 (Proviso). The learned advocate submitted ·further that a copy of that letter was not even sent to the respondents as provided for by Rule 83 (2) of the Court Rules, 1979. He further submitted that there is also a letter dated 21 st September 2002 suggesting.that the appellant was waiting for leave to appeal· before lodging his memorandum of appeal, which is wrong. I_t was on the basis of these grounds that he called upon the Court to strike out the appeal with costs. The appellant was formerly represented by Mr. Njulumi learned advocate. But when the appeal was called on for· -hearing, ML . Njulumi applied orally for leave to withdraw from the conduct of this appeal on_ health grounds. He had_ notified the appellant earlier and the appellant was present in Court. - His prayer was granted. In reply, the appellant conceded -all the points of objection raised bythe respondents. However, he said that from what his former advocate - had briefed him, failure to lodge the memorandum of appeal within 4 D 60 days, and to apply for a copy of proceedings within 30 days from the date of judgment was not deliberate but accidental. He said it was accidental in the sense that his advocate was labouring under an honest but mistaken belief that he had first to obtain leave to appeal. He further stated that although the respondents were not served with a copy of the letter of application for a copy of the proceedings in the High Court, they were neither prejudiced in any way, nor did such omission cause any failure of justice. He said, it was merely a procedural requirement which should not be used to defeat substantive justice. He referred us to the decision of this Court Civil Appeal No. 45 of 1998 (1) The Judge Incharge High Court Arusha (2) The Attorney General v. N.I.N. Munuo Ng'uni (unreported), together with Article 107A (2) (e) of the Constitution of the United Republic of Tanzania 1977. He therefore prayed for the preliminary objection to be overruled. We need not spend much time in disposing of this matter. The grounds of the preliminary objection raised are as clear as day light. It is common ground that the judgment against which it is desired to appeal was delivered on 18. 7 .2:000. It is equally common 5 ground that notice of appeal was lodged on 23.7.2000 which was within the prescribed period of 14 days as provided for by Rule 76 (1) (2) of the Court Rules, 1979, which states:- 76 (1) "Any person who desires to appeal to the court shall lodge a written notice in duplicate with the Registrar of the High Court. (2) Every notice shall, subject to the provisions of Rules 84 and 96, be so lodged within fourteen days of the date of the decision against which it is desired to appeal." Also it is common ground that the memorandum of appeal was not lodged within the prescribed period of 60 days. According to the original record the said memorandum of appeal was signed by the then appellant's advocate on 19.9.2002. It was presented for filing on 16.5.2003. But the filing fee was paid on 28.5.2003 on ERV No. 17582567. Obviously this was in contravention of the provision of Rule 83 (1) (a) which states:- 83 (1) "Subject to the provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged - 6 (a) a memorandum of appeal, in quintuplicate; (b) I (d) save that where an application for a copy of proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired 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 Registrar of the High Court as having been required for the preparation and delivery of that copy to the appellant." There is no dispute that the appellant did not apply for a copy of proceedings within 30 days. Since the appellant did not apply for the copy of proceedings within 30 days of the date of judgment and did -- not send a copy to the respondent, he cannot rely on the exception clause by virtue of Rule 83 (2) which says:- 83 (2) "An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and a copy of it was sent to the respondent." 7 The requirement of lodging. an appeal within 60 days of the date of notice of appeal, and of applying for a copy of proceedings · within 30 days of the date of judgment, and sending a copy of it to the respondent, has been emphasized in numerous cases decided by this Court such as The Ministry of Defence v. Valambhia (1992) TLR 387; and Stephen Wasira v. Joseph Warioba (1997) TLR 205. As for the appellant's assertion that his former advocate was labouring under an honest but mistaken belief that h.e had first to obtain leave to appeal, that cannot help him in any way other than perhaps winning him some moral sympathy. It cannot change the stringent requirements of Rule 83 of the Court Rules, 1979. Dealing with a similar situation in Civil Application No. 67 of 1997 Benedict Rugemalira & Others v. Mohamed V~rsi & Others (unreported), a single Judge of this Court (Lubuva, . JA) reiterated as follows:- "The fact that Dr. Mapunda was labouring under an honest but mistaken belief that he had first to .obtain leave to appeal is not : 8 · provided in the rules. In the case of Harnam · Singh Bfta,gal t/a Harnam Singh & Co. v. Jadva. Karian (1953) 20 EACA 17 the Court of. Appeal for Eastern Africa held that the . mistaken · opinion of an advocate could not ·validate an application in terms of the applicable rules. And so, I cannot accept Dr. Mapunda's honest but mistaken belief as sufficient ground to justify the non-compliance with the Court's rules." In the present case we hold the same view. The appellan.t also contended that procedural rules should not be used to thwart substantive justice. We agree. But in the instant case, we cannot accept the appellant's argument that this was a mere procedural irregularity. In our view, the appellant's failure to comply with the mandatory requirement of the rules goes to the ·substance of the matter. As the appellant's letter applying for a copy of the proceedings in the High Court was not copied to the respondents, in terms of sub- rule 2 of rule 83, the appellant is not entitled to rely on the exception· to sub-rule 1. . In that situation we agree with Mr. Nyabiri that the 9 . app.ea I. should have been instituted within 60 days of .the date of the . r+8tice of appeal . i.e. 23.7.2000. The appeal having .been . . .' instituted on 28.5.2003 it was thus hopelessly out of time. Since the appellant did not apply for a copy of the proceedings within the prescribed period of 30 days of the date of judgment, and did not send a copy of the same (i.e. letter) to the respondents [Rule · 83 (1) (2)]; and since he did not lodge his memorandum of appeal within the prescribed· period of 60 days of the date of notice of appeal [Rule 83 (1)], this appeal is not properly before us. It is incompetent. In the event) we uphold the preliminary objection and strike out the appeal with costs. DATED at DAR ES SALAAM this 20 th day of May, 2004. ft.r' · D. Z. LUBUVA JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL 10 I certify that this is a true copy of the original.