20020515 TZCA Dar es Salaam 1

0 \ • ;i . •' ~, IN THE COURT OF APPEtL OF TANZANIA ---- AT }1WANZA '-,. (CORAM: . MAKAME, J. A'U, LUBUVA, J. A. AND MROso, J. A.) CIVIL APPE/\L NO. 66 OF 1999 FESTO' KABAKAMA. o • • • • . o • • • • • • • • • • • • • • • • • • • • . o • • • • • o o • • • • .APPELL/tNT VERSUS (AweaJ. £t.-6m the deeie.ion of the High Court of Tanzania at Mwa.nza) dated the 12th day of May; 1994 :in JUDGMENT ===========- LlJBUVA,_ J. A. This is a third a.ppeal. orig:tns.ting f'1'om Nsb.amba B r ~ Court in Muleba District. In the Primary Court the respondent, Joseph Tigusaine, unsuccessfully· sued the appellant, Joseph K_abakama, for a•piece of land. He appealed to the District Court at Muleba which re-Yersed the decision-;r··:tl1.e·Primary Gourt-..in .. h~~-f._q.yg~, holding -· . - .. . that the land in dispute was clan land whieh the appellant 1 s mother could not bequeath to the appellant. In this appeal Mr. Katabalwa, learned counsel, appeared for the appellant. At the conclusion of his submissions on behalf of the appellant, the respondent who appeared in person addressed the Court as follows:· In the .fir.st_place, he had not been served with the notice of appeal. Secondly, that he had not been served with a copy of the letter of 23.5.1999 to the Registrar of the High Court applying for a •• ./2 fl .,,,,,. "' . copy of the proceedings in the High Court. Thirdly, that he received copy of the proceedings on 21.5.1999. For these reasons, he urged that the appeal was instituted out of time, it.should be struck out, it being incompetent. Prompted by the Court to respond to these eubmissions, Mr. l{atabalwa learned counsel. ~,cated a lot. At some stage, he seemed to take the view that the respondent had been served with the notice of appeal and a copy of the letter to the Registrar of the High Court applying for a copy of the proceedings. When pressed for evidence to show that the respcndent had been se~dt Mr. Katabalwa had none. However, he kept on insisting that as the issue regarding non service of the notice of appeal and copy of the letter of 23..,5.1994 on the respondent was raised only in thia Court 1 the appellant should not be condemned unheard.· We have given anxioue consid.e~ation ~ the subini.saions on the preliminary issue raised by the respondent. It is oormnon knowlfedge that under rule 77 (1) of the Court's Rules, 1979 it is mandatory for the appellant to serve a copy of the notice of appeal within seven days after l.odging tb.G notice o'!: appeal. OJl. ~u persons direct~ affected by the appeal. In this case; the respondent, an interested partyt claimed tliat he was not s~rved with the nbtice of appeal whidh was filed on 16,5i1994, Wlth respect ♦ Mr.~ Katabal~at iearned counsel for the appeiiant ~part from merely asserting that the respondent ha~ been served, did not furnish any evidence to show that the respondent had been served. In the absence · of such evidence, we accept the respondent's claim that ·he had not-been served with the notice of appeal. This failure on the part of the respondent violates a mandatory requirement under rule 77 (1) of the Ruies of the Court -. which renders the appeal incompetent. The fact that the issue is being raised for the first time in this Court is no excuse for ..../3 ' - 3 ·- failure to comply· with the mandatory requirement -under the· rule. After all, as no doubti Mr. Katabalwa is aware, the proceedings before this Court ai-e ·g~verned by the rules. It was therfi.fore proJ;>er that the r·espbndent raised the issue before the Court. The claim b~ Mr. Katabalwa-that the appellant should not be condemned unheard ;has no merit. He baecbeen heard oh this point when he failed to furnish any proof of service ori the respandent~ , . Mr~ icataba1wa -~ equally handicapped :i.n. connection with the service.on the respondent of the cop~ of the letter to.the Registrar of the High Court applying for a co-py of the proceedings •.. There ~ no proof that the resporiderit had be-en served with a copy of itJ Like he did with the notiee of appeal, ht3 repeated. the· ·argument that the respondent was raising the issue for the first time in this Court. As already indicated. we have rejected this .submission as untenable. Consequently, as the respondent was not served with a copy of the letter of 23.5.1995, the appellant cannot take advantage of the exception to· sub-rul.e ( 1) of rule 83 in eomputing the time within which the appeal is to be :instituted to exclude the time taken for the preparation and delivery of a copy of the proceedings to the respondent. As it happened in this case, the appeal should have been instituted within 60 days from 16.7.1994 the appeal ~ught to·have been instituted. From the record, the appeal was lodged at Mwanza sub-Registry of this Court 011·21~5-..1999, a delay of about 5 years. This, by any stretch of the imagination, is inordinately out .:of time. In the circumstances, we accept the respondent's submission that the appeal is incompetent for two reasons. First, for failure to comply with the mandatory requirement of rule 7? ( 1) of the ... ·- 1 •. - 4 - ~ules in that the respondent was not served with the notice of appeal.. Second, failure to comply with rule 83 ( 1) in instituting the appeal long after 60 days from 23.5.19941 when the notice of appeal was lodged. The appeal being incompetent, it is struck out with costs. bATED at DAR ES SALAAM.this 15th day of May, · 2002. L. M. MAKAME JUSTICE OF APPEAL D. z. LUBUVA JUSTICE OF APPEAL J. It. t-moso JUSTICE OF APPEAL I certify that this is a true copy of the original. -·------·-----