20100222 TZCA Arusha 1

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA CIVIL APPLICATION NO. 18 OF 2008 GEM AND ROCK VENTURE CO. LTD ...................................... APPLICANT VERSUS YOHANA HAMIS MVUTAH ............................................... RESPONDENT {Application for Notice of Appeal for Intended Appeal be Struck out with cost from the Decision of the High Court of Tanzania at Arusha) {Sheikh, J.) dated the 17th day of August, 2007 in Civil Appeal No. 20 of 2003 RULING 11th & 22nd February 2010 MANDIA, J.A. On the lih August, 2007, the High Court of Tanzania at Arusha delivered a judgment in which it dismissed an appeal filed by the present applicant YONA HAMISI MVUNTAH. On 23 rd August,2007, the applicant lodged a notice of appeal against the judgment delivered on 1ih August, 2007. . On 1st December, 2008, Mr. Loomu Ojare learned counsel representing the respondent, lodged ,in this court an application seeking for orders that the Notice of Appeal filed by the appellant be struck out on the ground that the intended appellant had failed to institute the intended appeal within the appointed time. An affidavit filed in support of the notice of motion sworn by one SAMMY S. MOLLEL deposes, in paragraph 4, 5 and 6, that the advocates of the intended appellant had written two letters, one with Reference Number 3/08/HYM/HESM dated 20/8/2007 and a reminder with reference number JJL/VOL.IV/82/07 dated 18th October, 2007. The letter dated 20/8/2007 emanated from Makange Chambers Advocates and was applying for certified copies of proceedings, judgment and decree for appeal purposes, and the letter dated 18th October, 2007 emanated from M/5 John J. Lundu & Co, Advocates and was a reminder to the District Registrar, High Court of Tanzania, Arusha, of the request made by the letter dated 20/8/2007 for the supply of documents for appeal purposes. This reminder was 2 . - attached to··the supporting affidavit of- SAMMY-5. MOLLEL and __ _ marked Annexure A3. Reacting to the Notice of Motion, the respondent YONA HAMISI MVUNTAH filed a counter- affidavit in which he averred, in paragraph 3, that a letter dated 20/8/2007 and a notice of appeal was served on the applicant on 31/8/2007. The counter - affidavit of YONA HAMISI MVUNTAH was supplemented by an affidavit of ELIZABETH TIMOTHY LAISER, a clerk cum Secretary employed by Makange Chambers Advocates, in which the deponent avers (in paragraph 5) that on 31/8/2007 she served two documents pinned together. One was a Notice of Appeal and the second was a letter Ref. 3/08/HY/M/HESM dated 20/08/ 2007 in which letter was an application for certified copies of proceedings, judgment and decree for appeal purposes. When the application came up for hearing on 11/2/2010 Mr. Loomu Ojare, learned counsel representing the applicant contended that the letter applying for copies of proceedings, judgment and 3 .i - decree was not served on the applicant- and that this makes the respondent ineligible to the exemption granted by Rule 80(3), now Rule 90(2) of the Court of Appeal Rules. On his part, Mr John J. Lundu, learned counsel representing the respondent, argued that there was service as shown in the affidavits of the respondent and Elizabeth Timothy Laiser. The affidavit of Elizabeth Timothy Laiser sheds '!)Ore light when it mentions one Mr. Allen as the person who accepted service on behalf of the applicant. The moot question is, was there service of not? Of both Yona Hamisi Mvuntah and Elizabeth Timothy Laiser allege that the letter from Makange Chambers Advocates is dated 20/8/2007, and that this letter together with the notice. of appeal was served on the applicant on 31/8/2007. On 18th October,2007 about two months later, Mr. Lundu, learned counsel wrote a reminder. By the time the reminder was written the shelf- life of the notice, fourteen days was over. If the notice was served pinned together with the letter dated 20/8/2007, why would SAMMY MOLLEL acknowledge receipt of the notice and deny receipt of the letter? The letter dated 20/8/2007 is 4 -· •,J the-only-evidence-that-the ·applicant ·was entitled to-consideration-for- - exemption, so proof of service of this letter was vital to bring home point that both the notice and the letter were both served on the applicant. The material person to prove service of the letter is the person named by Elizabeth Timothy Laiser as Allen. He is the person who received both the notice and the letter dated 20/8/2007. He is the person who would have give the reason as to why he would disclose the existence of the notice but hide the existence of the letter while both served the same purpose, that is, informing the appellant that the respondent had initiated the appellate process against the applicant. Failure to prove service through Allen is fatal to the applicant's case, especially if we take into account that after filing the notice of appeal the respondent took no action until the present applicant filed this application to have the notice of appeal struck out. Si nee there was no proof of service of the letter dated 20/8/2007, the application to have the notice of appeal struck out is proper in law. 5 As___ held --in STEPHEN WASSIRA V. :JOSEPH -WARIOBA {1997-) --- TLR 205, absence of proof of service makes one ineligible for exemption to the sixty day rule. The application has merit. The notice of appeal filed by the respondent is struck out. The applicant is awarded costs of this application. DATED at ARUSHA this 22 nd day of February, 2010. W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original DEPU COURT OF 6