jacqueline jonathan mkonyi another vs gausal properties limited 2022 tzca 288 17 may 2022

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM fCORAM: LILA, J.A.. MWANDAMBO, 3.A. And KAIRO. J J U CIVIL APPEAL NO. 311 OF 2020 JACQUELINE JONATHAN MKONYI........................................ 1st APPELLANT ABDALLAH MAKATTA T/A SENSITIVE AUCTION MART................................................2nd APPELLANT

VERSUS GAUSAL PROPERTIES LIMITED........................................... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam (Mlvambina, J.) dated the 23rd day of August, 2016 in Land Case No. 85 of 2016

RULING OF THE COURT 05th & 17th May, 2022 MWANDAMBO. J.A.: The appellants were aggrieved by the decision of the High Court at Dar es salaam (Mlyambina, J) made on 23/08/2019 which entered judgment for the respondent in Land Case No. 85 of 2016. They have appealed against that judgment in this appeal. What triggered the suit before the High Court was a dispute over ownership of a piece of land described as Plot Nos. 1, 2 and 3 Block F, Kunduchi Mtongani, Kinondoni Municipality, Dar es salaam City. That piece of land was adjudged to be a property lawfully owned by the respondent in the suit instituted by the respondent. The appellants lodged their notice of appeal on 05/09/2019 and subsequently, they instituted their appeal on 15/09/2020 through M/s Apex Attorneys; a law firm which had the conduct of the matter before the trial court. Ahead of the date set for the hearing of the appeal, the respondent lodged notice of preliminary objection through Messrs. Leonard Manyama and Sylivatus Sylivanus Mayenga, learned advocates contending that the appeal ought to be struck out for being incompetent by reason of alleged failure to serve a copy of the notice of appeal as required by rule 84 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Consistent with the practice of the Court, we heard the learned advocates on the preliminary objection on 05/05/2022 the date on which

the appeal was called on for hearing. Mr. Imam Daffa, learned advocate appeared during the hearing representing the appellants whilst, Messrs. Manyama and Mayenga teamed up to represent the respondent. It was Mr. Mayenga who addressed the Court on the preliminary objection. Mr. Mayenga was straight arguing that whereas rule 84(1) of the Rules required the appellants to serve a copy of the notice of appeal on the 2 respondent within fourteen (14) days from the date of its lodgment, the appellants did not do so. Elaborating, Mr. Mayenga contended that had there been such service, the appellants should have furnished proof of it in the record of appeal. On the contrary, Mr. Mayenga argued, a copy of the notice of appeal appearing at page 239-241 of the record of appeal does not indicate that there was any service on the respondent. Citing our previous decisions in Bank of India (Tanzania) Limited v. Y. P. Road Haulage Limited & 2 Others, Civil Appeal No. 322 of 2017 and Damas Mokiri Ngoja v. National Housing Corporation & Another, Civil Appeal No. 273 of 2018 (both unreported), the learned advocate argued and rightly so, that failure to serve a copy of the notice of appeal on the respondent is a fatal irregularity rendering the appeal incompetent and liable to be struck out. He urged the Court to follow suit and hold that the instant appeal is incompetent and proceed to strike it

out with costs for two counsel. Not amused, Mr. Daffa resisted the preliminary objection. The learned advocate submitted that the respondent was dully served with a copy of the notice of appeal on 09/09/2018 through Mr. Manyama and subsequently, the said advocate lodged a notice of address for service on 17/09/2018 which was sufficient proof that the appellants complied with rule 84(1) of the Rules. Mr. Daffa argued that the cases cited by Mr. Mayenga were distinguishable 3 because they dealt with a situation in which there was a total failure of service of copies of notice of appeal which is not the case in this appeal in which the issue relates to lack of proof of service in the record of appeal. He thus implored the Court to invoke rule 96(7) of the Rules which permits an appellant to lodge a supplementary record of appeal to incorporate copies of the notice of address for service as well as the copy of the notice of appeal. The learned advocate seized the moment to draw the Court's attention to another omission in the record of appeal of the copies of the respondent's written submissions before the trial court for which he asked leave to incorporate them on the supplementary record of appeal. Otherwise, he urged the Court to find no merit in the preliminary objection and dismiss it with costs. In rejoinder, Mr. Mayenga maintained that in the absence of any material to

suggest that there was service of the copy of the notice of appeal, the Court cannot gauge the invocation of rule 96 (7) of the Rules, the more so because the respondent has raised a preliminary objection. We understood Mr. Mayenga to be suggesting that the Court can only invoke rule 96 (7) where there is no preliminary objection. Having heard arguments from the learned advocates, it is obvious to us the issue for our consideration and determination relates to non-inclusion of proof of service of the copy of notice of appeal rather than failure to serve such notice at all. We say so mindful of the submissions in reply by the learned advocate for the appellants. One of the aspects from the learned advocate's submission to persuade us to agree that there was service relates to the respondent's notice of address lodged in Court after the filing of the notice of appeal. Even though the learned advocate did not avail us with a copy of that notice, the respondent's advocate did not seriously dispute that aspect. Be that as it may, from our own perusal of the original record, we landed into the said copy lodged in Court on 17/09/2019 by Smile Star Attorneys. Indeed, that notice is shown to have been signed by Mr. Leonard Manyama, learned advocate for the respondent who had represented them in the trial court. It is the same advocate and firm on whom the notice of appeal appearing at

page 239- 241 of the record was intended to be served. In our view, it sounds odd and contrary to logic and common-sense denying service of a copy of the notice of the appeal in view of the provision of rule 86(1) of the Rules under which the respondent's advocate lodged the notice of address for service. Rule 86 (1) stipulates: "Every person on whom a notice of appeal is served shall: 5 a) Within fourteen (14) days after service on him o f the notice of appeal, lodge in the appropriate registry and serve on the intended appellant notice o f a full and sufficient address for service;... "[emphasis added]. As alluded to earlier, the notice of appeal shows an address for service the respondent gave in connection with the proceedings in the High Court consistent with rule 84(2) of the Rules. We understood Mr. Mayenga suggesting that a copy of the notice of appeal showing proof of service should have been incorporated in the record of appeal as a vital document in the record of appeal in terms of rule 96(1) of the Rules. According to the learned advocate, failure to do so rendered the appeal incompetent on the authorities he placed before the Court. First and foremost, as rightly argued by Mr. Daffa and in view of our foregoing discussion, those authorities are distinguishable. This is because they dealt with cases in which there was complete failure to serve copies of notice of

appeal on the respondent rather than mere failure to incorporate proof of service in the records of appeal. Secondly, without any disrespect to Mr. Mayenga, we do not think he is entirely correct in his argument in relation to incorporating a notice of appeal in the record of appeal showing acknowledgement of service. We say so because, we do not think that poof 6 of service need necessarily be in the manner suggested to us because all what rule 96 (1) (j) of the Rules requires is inclusion of the notice of appeal in such record of appeal without more. That means that a litigant may incorporate in the record of appeal any form of proof of service which fall into any other documents as may be necessary for the proper determination of the appeal in line with rule 96(1) (k) of the Rules. Such documents may include copies of dispatch books etc. Arising from the foregoing, notwithstanding the existence of the copy of notice of address for service, it is now plain that the respondent's case lies in the omission to incorporate a document for proof of service of the notice of appeal on the respondent as opposed to want of service as contended in the notice of preliminary objection. Under the circumstances, it is obvious that such an omission cannot render the appeal incompetent because of the existence of the notice of address in the record of appeal. We could have ended there but for

Mr. Daffa's prayer to be granted leave to lodge a supplementary record of appeal pursuant to rule 96 (7) of the Rules to incorporate copies of the missing documents notably; the missing written submissions of the respondent from the record and proof of service of the copy of the notice of appeal. Mindful of the provisions of rule 96 (7) of the Rules we see no compelling reason to refuse that prayer and hereby grant leave to the appellants to lodge a supplementary record of appeal incorporating copies of the missing written submissions filed before the trial court. Although we do not find it necessary, the appellants may also incorporate documents evidencing proof of service of the notice of appeal in supplementary record of appeal of appeal which shall be lodged not later than thirty (30) days from the date of this order. Before we pen off, we find it compelling to associate ourselves with the warning echoed by defunct Court of Appeal for East Africa in Mukisa Biscuits Manufacturing Co. Limited v. West End Products Limited [1969] EA 696 through Newbold, President discussing what constitutes a preliminary objection. Having defined the phrase, the learned president stated: "The improper raising o f points o f preliminary objections does nothing but unnecessarily increases costs and, on occasions, confuses issues. This improper practice should stop. "(At page 701). We have no

doubt that had the learned counsel for the respondent directed their mind properly to the prevailing circumstances in connection with the status of service of the notice of appeal, they could have avoided raising the notice of preliminary objection and desisted from pursuing it as 8 they did. Indeed, section 3B (2) of the Appellate jurisdiction Act Cap. 141 R.E 2019 enjoins advocates for the parties to assist the court in furthering the overriding objective that is to say; to facilitate the just, expeditious and proportionate resolution of the matter before the court. That said, we overrule the preliminary objection with costs to the appellants. It is so ordered. DATED at DAR ES SALAAM this 13th day of May, 2022. S. A. LILA

JUSTICE OF APPEAL L. J. S. MWANDAMBO

JUSTICE OF APPEAL L. G. KAIRO

JUSTICE OF APPEAL The Ruling delivered this 17thday of May, 2022 in the presence of Mr. Imam Daffa, learned counsel for the Appellants also holding brief for Mr. Silvanusi counse for the Respondent, is hereby certified as a true Mayenga, learnaJ cc copy D. R. LYIMO ' DEPUTY REGISTRAR

COURT OF APPEAL 9