20090309 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION No. 163 OF 2008 EMIR WILSON DAUD AND ANOTHER ........................... APPLICANTS VERSUS TANZANIA POSTAL BANK ........................................ RESPONDENT (Application for an order to strike out a Notice of Appeal from the ruling and order of the High Court of Tanzania at Dar es Salaam) (Makaramba, J.) Dated 11th day of July, 2008 in Civil Appeal No. 76 of 2007 RULING 18th February & 9th March, 2009 RUTAKANGWA J. A In this application, by Notice of Motion under Rule 82 of the Tanzania Court of Appeal Rules, 1979, henceforth the Rules, the applicants are seeking an order striking out the respondent's notice of appeal lodged on 18th July, 2008 against the ruling of the High Court of Tanzania at Dar es Salaam in Civil Appeal No. 76 of 2007 1 ' . dated 11 th July, 2008. The application is predicated upon two grounds only, namely:- (a) that a copy of the notice of appeal was not served on the applicants within the prescribed time, and (b) that up to the date when this application was filed, i.e 27th December, 2008, "the respondent had not instituted the appeal in consequence of the notice lodged." On the day the application was heard, the applicants were represented by Mr. Audax Vedasto, learned advocate, while Mr. Casmir Nkuba, learned advocate, represented the respondent. Submitting in support of the application, Mr. Vedasto repeated the assertions in the two grounds relied on in the notice of motion. He accordingly urged me to strike out the said notice of appeal as the intended appellant has failed to take essential steps in the prosecution of his appeal todate. He also prayed for costs. Mr. Nkuba conceded not only failing to serve a copy of the notice of appeal on the applicants within seven days as the law provides, but also the fact that up to that day no appeal had been instituted. But he had an explanation which he believed rendered this application misconceived in law. 2 Mr. Nkuba submitted that after lodging the notice of appeal and obtaining copies of the High Court ruling and extracted order, they realized that the said order is not appealable in law. They accordingly abandoned their intention to appeal against the order and opted for the revisional process. They, therefore, on 9th September, 2008, lodged an application for revision in this Court and on 11 th September, 2008, the applicants were served with copies of the notice of motion relating to the revision application (No. 129 of 2008). Since the revisional and appellate jurisdictions of this Court are mutually exclusive, he contended relying on HALAIS PRO-CHEMIE INDUSTRIES LTD. V WELLA A.G., Civil Application No. 19 of 1995, the applicants ought to have known that the appeal process had been abandoned. They, therefore, ought not to have troubled themselves to lodge this application, he argued. This was because after the expiry of sixty days following the lodging of the notice of appeal without any appeal being instituted, the lodged notice of appeal was deemed to have been withdrawn under rule 84(a) of the Rules, he pressed. He accordingly prayed for the dismissal of application with costs. In his short rejoinder, Mr. Vedasto insisted that the application is in order as the institution of revisional proceedings did not have the effect of withdrawing the notice of appeal. 3 Admittedly, Mr. Nkuba's point is rarely encountered in this Court. As such it has not been a subject of extended discussion by the Court. However, that is far from saying that it is novel. It has been raised before. To the best of my recollection, this was a decisive issue in ZNZ Civil Application No. 4 of 2006 between EXECUTIVE SECRETARY, TRUST WAKF AND COMMISSION, ZANZIBAR (Administrator of Mtendeni Wakf) and MUSSA SALLEH ABDALLA (unreported). In the above cited application, the Executive Secretary had sought an order striking out Mussa Abdalla's notice of appeal under the same rule 82 of the Rules. Mr. Mnkonje, learned advocate for Mussa Abdalla, challenged the competence of the application. The mainstay of the challenge as articulately put by Mr. Mnkonje was that the intended appellant having failed to institute his appeal within sixty days of the lodging of the notice of appeal as mandatorily required by Rule 83(1) of the Rules, the appeal was deemed to have been withdrawn under Rule 84(a). There was, therefore, no notice of appeal before the Court to be struck out. Upholding Mr. Mnkonje's contention, the learned single judge of the Court (Nsekela J.A.) said:- " The respondent filed the Notice of Appeal on the 13.12.2002. Apart from this/ the respondent has failed to take essential steps 4 ' ' to prosecute the appeal to date. The learned advocate for the applicant has conceded that much. The respondent has no desire to pursue the appeal and so in terms of Rule 84(a) of the Court Rules, he is deemed to have withdrawn the Notice of Appeal. There is therefore no Notice of Appeal to be struck out. I therefore uphold the preliminary objection with costs ...... " The material facts in this application and the one before Nsekela, J.A., are almost identical. After carefully reading Rules 83 and 84 of the Rules, I have found myself in full agreement with the conclusion reached by my learned brother in EXECUTIVE SECRETARY v MUSSA ABDALLA (supra). Logic vindicates it and the law affirms it. Rule 83(1) of the Rules unequivocally directs that an appeal shall be instituted by lodging it in the appropriate registry, within sixty days of the date when the notice of appeal was lodged. It is trite law, for which I find no pressing reason to cite any authority to bear me out, that subject to the exceptions stated therein, default in so instituting the appeal, is failure to take the necessary steps in terms of Rule 84(a). The said Rule 84(a), provides as follows:- 5 11 If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time __ (a) he shall be deemed to have withdrawn his notice of appeal and shall unless the Court orders otherwise, be liable to pay the costs of any persons on whom the notice of appeal was served arising from that failure to institute the appeal;" [Emphasis is mine]. The catch-word here is "deemed". In law, this has been aptly described as a "legal fiction". Commenting on this notion, Justice G.P. Singh in his invaluable treatise entitled, PRINCIPLES OF STATUTORY INTERPRETATION on page 301 of the 8th edition, 2001, has this to say:- " The legislature is quite competent to create a legal fiction, in other words, to create a deeming provision for the purpose of assuming existence of a fact which does not really exist provided the declaration of non- 6 existing facts as existing does not offend the constitution." The learned author further observes, at page 302, that legal fictions may also be created by delegated legislation, as was the case here and not only by the legislature. "In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction", without extending it beyond the purpose for which it was intended, he further elaborates. See, also:- (i) EX PARTE, WALTON, IN re LEVY, (1881) 17 Ch.D. 746 at P. 750, and (ii) EAST END DWELLING CO. LTD. V FINSBURY BOROUGH COUNCIL, [1951] 2 All ER 587, at P. 599 (HL). Through cases as STATE OF BOMBAY v PANDURANG VINAYAK, AIR 1953 SC 244, AMERICAN HOME PRODUCTS CORPORATION v. MAC. LABORATORIES (1986) I SSC 465, C.I.T., DELHI v. S. TEJA SINGH, AIR SC 352, etc, it is settled law that after the purpose of the legal fiction has been ascertained, "full effect must be given to the statutory fiction and it should be carried 7 .. to its logical conclusion" and for that purpose "it would be proper and even necessary to assume all those facts on which alone the fiction can operate." It is from this perception that the regularly cited statement by Lord Asquith in the EAST END DWELLING case (supra) gains great significance. He said, at page 589, as follows:- ''If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed or accompanied i t _ . The statute says that you must imagine a certain state of affairs; it does not say that having done so, you ~ust cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. " [Emphasis is mine]. It has long been recognized that it is in the public interest that there should be an end to litigation, so that a decree holder may enjoy the fruits of the decree in his favour as soon as possible. It is 8 my settled view that this particular legal fiction in the Rules was created with this purpose in mind. Otherwise, a mischievous judgment debtor bent on frustrating the decree-holder, in the absence of Rule 84(a), would simply lodge a notice of appeal, successfully apply for a stay of execution order and then take no further action in the matter. This would, indeed, be against public policy and the interests of justice. So, legal fictions are created in order to do justice. Rule 84(a) was included in the Rules to forestall this situation, i.e to protect successful litigants from the machinations of such unscrupulous parties to litigation. · So when an intended appellant fails to institute an appeal within the prescribed period, the other party, as aptly held by Lord Asquith, should not "cause or permit" his/its "imagination to boggle when it comes to the inevitable corollaries of that state of affairs." He or it must rest assured that the notice of appeal has been withdrawn; for even equity treats as done, that which ought to have been done. The notice of appeal ceases to exist on the sixty first day. For the foregoing reasons it is my settled view that the respondent's notice of appeal was deemed withdrawn as of lih September, 2008. The applicants had no reason, therefore, to file this application, for by 27 th October, 2008, when the application was lodged there was not in existence any notice of appeal by the 9 respondent capable in law of being struck out under Rule 82 of the Rules. All said and done, I find myself in agreement with Mr. Nkuba that this application is misconceived in law. I accordingly strike it out with costs. It is so ordered. DATED at DAR ES SALAAM this 2nd day of March, 2009 E.M.K. RUTAKANGWA 0 f "P STICE OF APPEAL a true co y of the original