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IN THE COURT QF APPEAL OF TANZANIA AT DAR ES SAIAAM CIVIL APPLiCATION NQ. 11 OF 2000 In the Matter of an Intended Appeal BETWEEN 1, FURAHA FENANCE LIMITED 4 APPLICANTS 2. DIL SIA AND CHAWE TRANSPORT IMPORT & EXPORT COMPANY LIMITED. • a . • • a a. • a RESPONDENT (Application for Stay of Execution from the decision of the High Court of Tanzania at Mbeya) (MackanjJ.) dated the 9th day of February, 2000 in Civil Case No. k of 2000 R U L I N G IAJBUVA, J.A.: At the commencement of the hearing of this application, the is&ue pertaining to the notice &f appeal was raised by the Court. This s so because, it was doubtful to me whether there was a valid notice of appeal lodged in terms of Rule 76. Otherwise under R. 9 (3) (b) an'applicatn for stay of execution cannot be entertained unless a notice of appeal has already been filed. In this case, the notice ef appeal was filed yesterday, 15.2.2000, at the High Court Registry in Dar as Salaam. A copy of the notice and receipt were transmitted te Mbeya High Court Registry. This, according to Mr. Dilip Kesaria, learned counsel is enough compliance with Rule 76. That is, under this Rule a notice of appeal is to be lodged with the Registrar of the High Court. In this case, the Notice having been ldged with the Registrar., High Court, that was sufficient compliance with the rule, Mr. Kessaria asserted, -2- Furthermore, Mr. Kessaria stated, unlike in Criminal mater in which under rule 61 (1) it is specifically previded that the notice shall be lodged with the Registrar of the High Court at the place... where the decision against which it is desired to appeal was given, in Civil matters as it is the case in the matter before me, there is no specific requirement similar to the provisions of rule 61 (i) for criminal matters. In the absence of such specific provision, Mr. Kessaria urged, it is sufficient compliance with t.e rules if the notice of appeal is lod.ged with the Registrar of the High Court. In this case, the transmission of the notice and the receipt for the payment effected in Dar es Salaam at the High Court Registry Mr. Kessarja added, was done at the instance and advice of the Registrar. In his view, he was not obliged to transmit the notice to Mbeya, High Court Registry, In order to enable Mr. Kessaria to aseertain with the District Registrar Mbeya if the notiee of appeal.so transmitted had been duly received and registered, the court had granted a short adjourinent. At the resumed hearing of the application, Mr. Kessaria informed the court that the DHL Co. Ltd. had assured him that the transmission would be received in Mbeya today, 16.2.000. That means that yesterday, 15,2,2000, when the notice of motion was filed in the Court's Registry at Dar..Es.'Salaani, the Notice of Appeal had not been received at the High Court Registry at .Mbeya. Inspite of this situation hewev.r, Mr. kessaria still maintained that the application was properly before this court because, as already pointed out it was his view that a valid notice of appeal had been lodged with the Registrar of the High Court who had in turn transmitted the notice to the Courts' Registry the outcome of which is the application before me. -3- Mr. Gomba, and Mr. Tadayo, learned counsel appeared for the respendent, Chawe Transport Import and Export Co. Ltd. In his brief submission, Mr. Gomba was of the view that tbe.appiicat ion was incompetent because no proper notice of appeal had been lodged in terms of rule 76. He maintained that according to the definition, 'Registrar of the High Ceurt jnclude8 a district and a deputy registrar of that court. In this ease, Mr. Gemba went on, the notice of appeal was supposed to be lodged with the District Registrar, High Ceurt Mbeya as part of the original record which would form part of the record for transmjssio* to this Court. Here, as even conceded by Mr. ressaria, Mr, Gomba str.ssed, as yet the ntjee of appea. transmitted 1y the DHL Co. Ltd, has not reached the Jstrict Registry at.Mbeya on the basia of which the original record would be submitteô t1th. curt. I*the absence of a valid notise of appeal, Mr. Gm neludod, the application is incompetent. With respect I think there is merit in Mr. Gomba's submission. As e.rre.tly submitted by Mr, Kossaria,it is cmmon ground that in an application fr stay exesutiF under Rule • (2) (b) of the Ceurt' Rules, 1Il, it jo a pre,requistt •.hditton that a rtice of appeal has to be 144,ged in tpms of rAe 76 befoe ait appli.catir for stay of ex..utieii ian be •ntertainod. The issue here, is whether the notice has to be lodged with the registrar sf the High Curt at the plaee where tho decision against which it is desired to appeal was given. Mr. Kessarja strongly contends that it is sufficient to lodge it with the Registrar of the High Court in 3jmjlar manner as it was done in this ease. It is his strong view that that is the position in civil, matters in terms of the rules. If it was intended that notice of appeal in civil matters I..," - 1 should be filed at the sub-registry of the High Court where the decision was given, such, Mr. Kessaria insisted, would have been provided in specific terms under the rules. I agree with him that rule 61 (1) provides for Criminal matters only thereby leaving out Civil matters to be 1oked into in terms of rules 76 and 78 as regards notice of appeal. That is, as regards Civil matters, rule 76 has to be read together with rule 78 which reads: - On re.eipt of a notice of appeal lodged under the pr.visions of Rule 76, the Registrar of the High Cirt shall f.rthwjth send one espy t it to the appr.ppiate registry. It is plain in my view that app,ipriate registry means the registry or sub-registry •f the C.urt. It is alse s,ommoi ground that the c.urt has its maii ?egistry is DasiSaJaani aid other upcountry • tentr.s where High .2put Registries i*ludiRg Mbeya where ub-x'egistMs are esta1,1ishd # In the spiiit of Rule 78, it is my understanding that the rti.e pf appeal has been filed under TV r, 76, the Registrar. the High ar Distriit antl 6 Deputy P.gistrarf the High eurt shall submt ene ppy o'f the notice to the app1priate;egistyf thet of Appea', In the case at hand, tie appripriate regist4y is the Crt' s surgistry at Mbeya. It is, i* my pinion., .jn.oneeivable that the Distrirt Registrar of the HighCurt w.u)Asubmita,py.f thenot4e t, the Or' aPPrrriate registry unles& the notieer appeal is first file withthe High C,urt registry •nserns. In the instant case., it ars with bt]a lgip and pr actiealit.y that the notice of appeal WaTto be ldged at the High Court Registryat Mbeya where the d.ecision which it is desjred to appeal against was made from w1r the Distriet Registrarof the High Court would submit to Courtbr ).. •. .: ,.. . • • • .: 3.;. 1.. • tf.. .. • . H H - -., • :L. • .• • • to• ., •: : .• 41 • . .• .• • • • I• . •.•. ,• ,,• -• ••. •,.- • ••- ,. .4 ...,-- . . • ..•,-, •.. •. - I F I ; . • : 1: • .•• . . I .1 • • . . . . • . • . • . . -Sf• . • ' S p ç•" - -S.. ' '• .1 .. ' - • • • .. :_' . • . . -- - ., - .S •.•,•' . ., ..- . . . _5 • -'-' .', 7* '" •- - . . • - .5 . .-. . .-- 'i. '___5 5 . . . ... - . . -- •: - -••, .: • • -. - -5 .- sub-registry there together with the original record with the app1icatin'th4ly . registered bearing the Mbeya Registry Number. In the event that it was desired that for' some administrative reasons or other expediency that the application is to be heard in Dar-Es-Salaani, then instructions would be given to transmit the application together with the original record to be heard say, in Dar-Es-Sa1aam In this way, in my view, it would ensure a coordinated movement of cases and case records from the High Court and the Courts' sub-registries upcountry, With respect, accepting Mr. Kessaria's interpretation of the rules in short circuiting the filing of notice of appeal would result in chaotic movement of appeals from various High Court registries upcountry. If. notices of appeal are to be lodged at the High Court main registry in Dar-Es-Salaam and not in the registries whether the decisions appeal against are given, some appeals or applications would be determined without being reflected in the original records at the sub-registries. A situation of this kind would no doubt cause a lot of cenfusion. In order to avoid further confusion and for future guidance, I would recapitulate my understanding and interpretation of the scheme and following is the rules governing notice of appeal in civil appeals, TheLproper procedure. First the notice of appeal ia te be lodged at the registry of the High Court where the decision intended to be appealed against waa made. Second, the application for stay of execution should be filed at'the Court of Appeal sub-registrywithin the zone in which the &cision was made. This is an application to be duly registered in the Court's sub-regist In the event that this procedure proves to be untenable under the rules if interpreted otherwise, then there is urgent crying need for ammending the rules in order to have similar provision covering civil appeals to that wider rule 61 (1).