20130222 TZCA Dar es Salaam 1

C) IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RUTAKANGWAV J.A.,BWANA, J.A. And LUANDA, J.A.) CIVIL APPLICATION NO. 53 OF 2012 DOWANS TANZANIA LIMITED DOWANS HOLDINGS SA COSTA RICA .....................................APPLICANTS VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LTD............................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mushi, 3.) 28th day of September, 2011 dated the in Misc. Civil Application No. 8 of 2011 RULING OFTHE COURT 15 1h February •& 41h March, 2013 BWANA, ).A.: This application was filed pursuant to Rule 89(2) of ,the Court of Appeal of Tanzania Rules, (hereinafter referred to as the Rules). It moves the Court for an order to strike out the Notice of Appeal filed by the respondent on 4 October 2011 following the decision of the High Court of 1 I' Tanzania in Misc. Civil Application No. 8 of 2011. That decision by the High Court was delivered on 28 September 2011. The present application was argued before us by Mr. Kennedy Fungamtama, learned counsel, on behalf of the applicants. The respondent was represented by a team of learned advocates, led by Mr. Richard Rweyongeza. Others in the team included Dr. Angelo Mapunda; Mr. Majura Magafu; and :Mr.:Lugano Mwandambo - all learned counsel. Both parties to the application filed written submissions in compliance with the provisions of Rule 106 of the Rules. In addition, Mr. Fungamtama made an oral .address on behalf of his clients. Mr. Mwandambo on his part, addressed us on behalf of the respondent and his learned friends before the Court. The essence of this application is that the respondent has not taken 1. any essential step in prosecutiOn of the appeal, following the lodging of the Notice of Appeal. It is claimed by Mr. Fungamtama that sixty (60) days have elapsed since the said Notice of Appeal was lodged on 4 October 2011 and that the respondent has not proceeded with the appeal in terms FA 0 of Rules 83(1) and 90 of the Rules. As a consequence of that failure, Mr. Fungamtama prays for the striking out of the notice of appeal in terms of Rule 89 (2) of the Rules. It is Mr. Fungamtama's further everment that following the filing of the Notice of Appeal, the respondent served copies of the same to the applicants in time. He served as well to the applicants a copy of a letter that he wrote to the Registrar of the High Court, (henceforth, the Registrar) requesting for certified copies of the proceedings, judgment and decree for purposes of the. appeal. Mr. Fungamtama avers that subsequent to that correspondence, the parties were supplied with proceedings of the High Court which cover "substantial part of the events" However, we should be quick to note at the outset that Mr. Mwandambo denies his client to have received copies of the said proceedings. Further, he avers that what is referred to as "substantial part" of the proceedings. .j. not substantial. Further, Mr. Mwandambo submitted that the Rules require the supply of the entire proceedings and not mere/substantial parts of it. We shall address our minds to this issue shortly. 3 In the applicants' view, the Court is, therefore, being asked to address its mind as to whether the respondent can be held responsible for the delay in obtaining copies of the required documents in the circumstances of this case, thus leading to the non-compliance with the provisions of the Rules which set out prescribed periods (i.e. sixty days) within which to lodge an appeal. According to Mr. Fungarntama, the respondent should have followed up the matter more diligently by reminding the Registrar to provide the documents sought. Further, together with receipt of the documents, the respondent should have obtained a certificate from the Registrar, so as to comply with the provisions of Rule 90 (1) proviso. Mr. Fungamtama drew the attention of this Court to the earlier decision in Mohsin Taki case, Civil Application No. 100 of 1999 and requested it to come to the conclusion that the respondent has abandoned any intention to appeal. He also cited the case of Costeiow vs Somerset County Council (1993) IWLR 256 1 to emphasize the need for observing the Rules of Court and associated rules of practice devised to promote the expeditious dispatch of litigation. Ell 0 On his part, Mr. Mwandambo controverted both the written and oral submissions of Mr. Fungamtama. It is his averment that since the applicants have not established that the respondent has failed to comply with the Rules, this application is prematurely before the Court. It is Mr. Mwandambo's further averment that the Registrar has neither supplied certified copies of any proceedings to the respondent for purposes of compiling a record of appeal to date nor responded to the respondent's advocates' letter requesting for the same. The said proceedings, judgment and decree are essential fOr the appeal that the respondent intends to lodge before this Court. There is no requirement under the law or the Rules that the respondent should remind the Registrar to furnish those essential documents. The immediate issuefOrour determination is whether the respondent has failed to lodge its appeal as contended by the applicants. It is uncontroverted that the respondent took all essential steps as required by the Rules consequent to the lodging of the Notice of Appeal. As rightly submitted by Mr. Mwandambo, there is no obligation on the part of the respondent to remind the Registrar to furnish those essential documents to 5 0 the parties. No rule, to the best of our knowledge, provides for such obligation. There could be peculiar circumstances that may delay the Registrar in issuing the requisite documents. That delay cannot be interpreted against the applicant/appellant in a given case. This seems to be the stand taken by this Court (See Fransisca Mbaklleki vs Tanzania Harbours Corporation, Civil Reference No. 14 of 2004 (unreported); Transcontinental Forwarders Ltd vs Tanganyika Motors Ltd and Mrs KamizAbdallah and others (1997) TLR 328). The above cases did interprete Rule 83(1) (which is par/mater/a with the present R. 90 (1) of the Rules) and did exonerate a litigant who having complied with the prescribed appeal process as provided under the Rules, faced constraints dueto the late obtaining of essential documents from the Registrar. In the Transcontinental Forwarders' case (supra), the Court categorically held:- "... the present respondent, who had applied to the Registry for a copy of the proceedings sought to be appealed against and had not been furnished with any, had complied with the Rules by copying his letter to the relevant parties- there was no legal provision requiring him to keep reminding the Registry to forward the proceedings and once Rule 83 was complied with the intending party was home and dry." (Emphasis provided). We subscribe to this position taken by the Court and believe it to be good law and practice. The Ruling by a single Justice of the Court in the Mohsin case, supra, is in our considered opinion, distinguishable with the facts of this application. Mr. Fungamtama alsO raised the issue that a " substantial part" of the proceedings has been supplied to the parties already and that what remained was not substantially material to the appeal process. Mr. Mwandambo denied that claim, stating that his client has neither received the alleged "substantial part" nor any part at all. Whichever case, there is no evidence suggesting that the said "substantial part" of the record was indeed served on the respondent. Further, it is for the Court to establish whether that "substantial part" of the record is indeed sufficient for the appeal process to proceed. It is not for counsel so to determine. What is 7 more important however, is the fact that the Rules make reference to the court record, meaning copies of proceedings, judgment and/or decree/order. The Rules do not refer to "substantial parts" of the said record as being sufficiently admissible for purposes of an appeal process. In the instant matter therefore, since the entire record was not availed to the parties by the Registrar, any part thereof cannot be considered as in compliance with the requirements of Rule 90 of the Rules. This application to striking out the appeal' is :therefore prematurely brought before this Court. In the circumstances, therefore, since the applicants have raised no substantial cause which establish that the respondent failed to comply with Rule 90 (1) of the Rules, we find no reason for striking out the appeal as prayed for. The alleged failure to take an essential step in the appeal has not been proved by the applicants. Accordingly this application fails. It is dismissed in its entirety. Regarding the issue of costs, we are of the considered view that the respondent is entitled to thé:lcb'sts of this application. We must however be 4 b U ) quick to observe that although the said respondent was represented by a team of four (4) learned advocates, costs awarded should cover only one advocate who made presentations before us. It is so ordered. DATED at DAR ES SALAAM this 22 nd day of February 2013. E. M. K. RUTAKANGWA JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL