20040429 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CIVIL APPLICATION NO. 71 OF 2002 In the Matter of an Intended Appeal

BETWEEN FRANCISCA MBAKILEKI ................................. APPLICANT AND TANZANIA HARBOURS AUTHORITY ............. RESPONDENT [Application for extension of time to institute an appeal from the ruling and order of the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam] (Kyando, J.) dated the 23 rd day of April, 2002 in Misc. Civil Case No. 66 of 2001

RULING NSEKELA, J.A.: The applicant, herein, Francisca Mbakileki, filed a notice of motion under Rules 8 and 45 of the Court Rules seeking for an Order for an enlargement of time to institute an appeal in Misc. Civil Cause No. 66 of 2001. Before the application could be heard, Mr. Mhina, learned advocate for the respondent, raised two preliminary objections. First, that the notice of motion dated 24.6.2002 contravened Rule 45 read together with Form A of the First Schedule . 2 to the Court Rules. Second, the notice of appeal dated the 7.5.2002 was equally defective since it contravened Rule 76 read together with Form D of the First Schedule to the Court Rules. It was the contention of Mr. Mhina that both the notice of motion and the notice of appeal were not signed by the Registrar of the Court, thus contravening Forms A and D. As such both the notice of motion and the notice of appeal were defective and liable to be struck out. On his part, Mr. Rweyemamu learned advocate for the applicant, strongly resisted Mr. Mhina's contentions. He submitted that the respondent has not preferred any evidence to the effect that the signatures on Forms A and D were not those of the Registrar of the Court. As far as he was concerned, the slash appearing before the signature was part of the signature of the Registrar of the Court unless the contrary was proved. I must confess that Mr.

Rweyemamu's argument has caused me considerable anxiety. As stated before, Mr. Mhina, learned advocate for the respondent, with deep conviction, submitted that the signature appearing on Form A and D are not that of the 3 Registrar of the Court. This is the crux of the preliminary objection. Since it is the respondent who has raised this issue, there was an obligation imposed upon him to move a step further and substantiate the claim. He who asserts, must prove. This is reflected in section 110 (1) of the Evidence Act, 1967 which provides - "Whoever desires any court to give judgment as to any legal right or liability dependent on . the existence of facts which he asserts must prove that those facts exist." The onus was therefore upon the respondent to establish that the signatures -that appear on Forms A and D are not those of the Registrar of the Court. This is not the case where the notice of motion and notice of appeal were received "for Registrar", for this to me would clearly indicate that the signatory received "as agent of", or "on behalf of", or "in place of" the Registrar of the Court. The applicant has disputed the allegation made by the respondent. The respondent was thus enjoined to offer proof for the allegation. A bare assertion from the Bar is totally unacceptable for the Court to act on. 4 In the result, I reject with costs, the respondent's preliminary objection. DATED at DAR ES SALAAM this 29th day of April, 2004. H. R. NSEKELA

JUSTICE OF APPEAL I certify that this is a true copy of the original. ~~ ( A. G: MWARIJA )

REGISTRAR