20101126 TZCA Mbeya

1

IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA ·(CORAM: NSEKELA. l.A .. MSOFFE. l.A .. And ORIYO. l.A.} CIVIL APPLICATION NO. 1 OF 2010 · GERALD E. BAKIZE ........................................................................ APPLICANT

VERSUS PHILEMON J. SHAO ...................... ~ ............................................ RESPONDENT (Application from the decision of the High Court of Tanzania at Mbeya} (Lukelelwa. J.} · dated the 4 th day of December 2008 in Civil Case No. 24 of 2000

JUDGMENT OF THE COURT 24t11 & 29 th November, 2010 NSEKELA, J.A.: The applicant, Gerald E. Bakize, filed a Notice pf Motion under the then rule 82 of the Court of Appeal Rules, 1979 (the Court Rules) seeking to strike out the respondent's Notice of Appeal filed on the 10.12.2008. The reason behind this move is that some essential step in the proceedings has not been taken within the prescribed time. It is the contention of the applicant that sixty days have already expired since the notice of appeal was filed on 10.12.2008. J 2 The background to this application is as follows. In the High Court Civil Case No. 24 of 2000, the plaintiff, Gerald E. Bakize (applicant) was the successful party. The losing parties (defendants) were Philemon J. Shao (respondent) and Dorman Tanzania Ltd. The respondent Shao on the 10.12.2008, filed a notice of appeal against the decision of the High Court (Lukelelwa, J.). It is the contention of the applicant that the respondent Shao has not served the notice of appeal under Rule 77(1) and filed the record of appeal under Rule 83 of the Court Rules. The affidavit in support of the application is in the following terms - 1. That I was the successful plaintiff/decree- holder in Civil Case No. 24 of 2000 of the High Court of Tanzania at Mbeya. A copy of the decree is attached as annexure 1 as part of this affidavit A copy of the Judgment is attached as annexture 2. A copy of the proceedings is attached as Annexture 3.

2. That on 5.12.2008 the respondent's advocate, Mr. M. T. Mbise, wrote the District Registrar applying for copies of Judgment, proceedings and decree. 3 A copy of the letter is attached as Annexture 4.

3. That on 10.12.2008 the said respondent's advocate filed a Notice of Appeal in the High Court of Tanzania at Mbeya against the said judgment A copy of the said letter is attached as Annexture 5.

4. That the said five annextures are part of this affidavit 5. That on 23.10.2009 I went to the High Court Registry at Mbeya to get copies of the judgment, decree and proceedings of the said Civil Case No. 24 of 2000.

6. That on perusal of the said two documents I discovered the following: - (a) The Notice of Appeal was not served to me within 21 days after it being lodged in the court pursuant to Rule 77(1) of the Court's Rules. (b) The intended appeal has not been lodged within 60 days of receiving of the copies of judgment, proceedings and decree. These documents were 4 ready for collection by the respondent as at 23.10.2009.

7. That I was given the said documents vide Exchequer Receipt No. 34754032 of 23.10.2009 as well as Annextures 4 and 5 referred to in paragraphs 2 and 3 above. A copy of the receipt is attached as Annexture 6 Copies of the Judgment, decree and procedings are attached as Annextures 7, 8 and 9 respectively. The annextures are part of this affidavit.

8. That if the respondent was serious with the intended appeal, he would have followed up and obtained the said documents and would have already filed his intended appeal by now i.e. more than 90 days after I receive the said documents. Mr. Mkumbe, learned advocate for the applicant, adopted the contents of the affidavit in support sworn by Mr. Bakize which he submitted was self-explanatory. 5 Mr. Mika Mbise, learned advocate for the respondent strongly opposed the application. His anchor was rule 22(7) of the Court of Appeal Rules. The applicant, he submitted, was served notice of appeal by registered post on 12.12.2008 and there was no communication from the applicant that he had not received it. The second limb of his submissions was to the effect that on the 5.12.2008, he had written to the District Registrar requesting for copies of court proceddings, judgment and decree in order to prepare the record of appeal. Despite repeated visits to the Registry, the Registrar has not supplied him with the documents. The affidavit in reply sworn by the learned advocate reads in part as follows - ''3. That after the judgment of the High Court was delivered on 4th December, 2008 on 5th December, 2008 I wrote a letter to the District Registrar of the High Court requesting for copies of court proceedings, judgment and decree so that I can process an appeal to the Court of Appeal of Tanzania.

4. That on 1dh day of December, 2008 I filed a Notice of Appeal in the High Court of Tanzania, Mbeya, stating the respondent 6 • intend to appeal against the decision of Hon. Justice Lukelelwa in the said case.

5. That my attempt to serve copies of the Notice of Appeal and a letter applying for copies of proceedings, judgment and decree to the applicant by dispatch at Masebe Village, Ushirika Area of Rungwe District were futile as I did not see him.

6. That having failed to trace him, on 12th day of December, 2008 served the applicant with copies of the said documents by registered mail No. 009473365 through the address he used in all previous correspondence, that is, care of Masebe Primary School P.

0. Box 227, Tukuyu, and a copy of the receipt to that effect is annexed hereto as part of this affidavit in reply.

7. That on a number of time (sic) I required on the progress on preparation of the said documents but they were not ready. " There are two issues revolving around the Notice of Appeal filed on the 10.12.2008 and these are reflected in paragraph 6 of Mr. Bakize's affidavit in support. The applicant contends that he was not served with 7 the Notice of Appeal Rules. The respondent has vigorously argued that the notice of appeal was served upon the applicant and he relies on Rule 20 (7) of the Court of Appeal pursuant to rule 77(1) of the Court of Appeal Rules, 1979, then applicable. Let us examine what this sub-rule says. It reads - "20(7)Where any document is required to be sent to any person, the document may be sent by hand or by registered post to that person or to any person entitled under Rule 28 to appear on his behalf and notice of the date fixed for the hearing of an application or appeal or for the delivery ofJudgment or the reasons for any decision. " (Emphasis added.) In paragraph 6 of the affidavit in reply, it is averred that the documents, which presumably included the notice of Appeal, were served by registered mail No. 009473365. This is a "Certificate of Posting a Registered Postal Packet." On the face of it, it reads that Mr. M. T. Mbise sent a postal packet No. 009473365 to Mr. Gerald E. Bakize c/o Masebe Primary School Box 227 Tukuyu. With respect,

this Certificate does not answer the question whether or not that postal 8 packet was served on the applicant and what were its contents. This takes us to Rule 20 (1) which provides - "Where by these Rules any document is required to be served on any person, service may be effected in such a way as the Court may in any case direct, which shall normally be in such manner as would be appropriate if it were a process of the High Court, and in the absence of any special direction shall be made personally on the person to be served or any person entitled under Rule 28 to appear on his behalf; but where a party to any proceeding has given an address for service, service may be effected by delivery at that address. '' Under Rule 77(1) an intended appellant shall serve notice of appeal on the respondent within seven days. The Court Rules do not prescribe the procedure to be followed but Rule 20(1) above makes reference to the process of the High Court. This takes us to Order V Rule 30 of the Civil Procedure Code Cap. 33 RE 2002. It reads as under - "3. Service by post may be deemed to have been duly effected if - (a) the summons is returned by the defendant endorsed with an acknowledgement of receipt; 9 (b) a letter or other document is received from the defendant acknowledging or indicating that he received the summons; or (c) evidence is produced that a postal packet was received by

the defendant supported by a certificate of an officer of the court that the postal packet contained the summons." With respect, we are attracted by (c) above. There is no evidence that the postal packet was received by the applicant. There is no certificate of an officer of the court that the postal packet in question contain the notice of appeal and a copy of application for a copy of the proceedings. What we are saying is that there must be evidence along those lines to prove that the documents in question have been sent by registered post to the applicant under Rule 20(7). Our inevitable conclusion is that the Notice of Appeal dated 10.12.2008 was not served on the applicant on the 12.12.2009 as alleged. In the context of this application the respondent had the burden of proving that the copy of the notice of appeal had been served on the applicant. He has failed to do so. What are the consequences for this failure? 10 In the case of Francis Itengeja v Kampuni ya Kusindika Mbegu za Mafuta Ltd. [1997] TLR 148 at page 151, the Court said - "This failure to serve the applicant with a copy of the Notice of Appeal within seven days of the notice as required by Rule 77(1) of the Rules, and failure to lodge the appeal within 60 days of the notice as required by Rule 83(1) are in the abscence of any evidence of extension of time by the Court to do these things, grounds which warrant the striking out of the notice of appeal " In the result, we accordingly strike out with costs, the notice of appeal filed on the 10.12.2008. DATED at MBEYA this 26th day of November, 2010. H. R. NSEKELA

JUSTICE OF APPEAL J. H. MSOFFE

JUSTICE OF APPEAL