hamamad big mohamed vs the registered trustees of anjuman e saiffee others 2023 tzca 17443 20 july 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MKUYE. J.A.. MWANDAMBO, J.A., And MAKUNGU, J.A J CIVIL APPEAL NO. 301 OF 2020 HAMAMAD BIG MOHAMED (Through a duly Registered Attorney FARID HAMAMAD BIG MOHAMED).................................APPELLANT VERSUS THE REGISTERED TRUSTEES OF ANJUMAN E. SAIFFEE.....1st RESPONDENT PERMANENT SECRETARY, MINISTRY OF LAND, HOUSING & HUMAN SETTLEMENT DEVELOPMENT.............................. . 2nd RESPONDENT THE REGISTRAR OF TITTLES MINISTRY OF LAND, HOUSING & HUMAN SETTLEMENT DEVELOPMENT................................. 3 rd RESPONDENT THE HONOURABLE ATTORNEY GENERAL............ ............... 4™ RESPONDENT (Appeal from the ruling and order of the High Court of Tanzania, Land Division at Dar es Salaam) (De-Mello, J.^ > dated the 23rd day of October, 2019 in Land Case No. 127 of 2018 RULING OF THE COURT 4h & 2tfhJuly, 2023 MWANDAMBO. J.A.: This ruling seeks to address a preliminary objection on a point of law raised by the first respondent through M/s Musa & Associates, Advocates lodged on 31/10/2022. The preliminary objection is premised i on rule 90 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) challenging the competence of the appeal on account of time bar. A brief account of the facts giving rise to the appeal runs as follows: The appellant lost to the respondents in a suit founded on a claim of ownership of a landed property on plot No. 41/63 Ilala Municipality, Dar es Salaam City. The details of the claim are not relevant for the purpose of this ruling but suffice to say that the High Court dismissed the appellant's suit for being time barred in a ruling rendered on 23/10/2019. The instant appeal against that ruling was instituted on 7/9/2020 on the basis of a certificate of delay issued by the Deputy Registrar of the High Court on 10/7/2020 after excluding 192 days from the computation of the period for the institution of the appeal reckoned from 19/11/2019. That certificate shows the latter date to be the date when the appellant requested for certified copies of ruling, drawn order and proceedings and 29/05/2020 the date on which the appellant's advocates were notified that the documents requested were ready for collection. On 31/10/2022, when the appeal was called on for hearing, the appellant's learned advocate drew the Court's attention to some 2 omission in the record of appeal which would have rendered the appeal time barred and liable to be struck out. In that regard, the Court granted the appellant leave under rule 96 (7) of the Rules to lodge a supplementary record of appeal to incorporate a letter to the Deputy Registrar asking for rectification of the certificate of delay and a rectified certificate within 30 days from the date of the order. No sooner had the Court made the order than the learned advocate for the first respondent lodged a notice of preliminary objection as aforesaid. Subsequently, the appellant's advocates lodged the supplementary record of appeal within the time specified in the Court's order. At the hearing of the appeal, Messrs. Deogratias William Ringia, and Godwin Musa Mwapongo, both learned advocates appeared for the appellant and first respondent respectively. The second, third and fourth respondents though duly served through the Solicitor General, were absent. As they had already lodged their written submissions in reply, in terms of rule 112(4) of the Rules they were deemed to have appeared. Thus, hearing proceeded as such preceded on the preliminary objection. Notwithstanding the supplementary record of appeal meant to cure the apparent irreconcilable particulars in the correspondence preceding the issuance of the certificate of delay and the certificate itself, Mr. 3 Mwapongo stuck to his guns. He contended that the documents in the supplementary record of appeal did not cure the defect and thus, the appeal is time barred. Mr. Mwapongo's submission was pegged on a letter by the Deputy Registrar dated 29/05/2020 appearing at page 132 of the record of appeal which notified the appellant's advocates of the availability of copies of the documents requested for appeal purposes. According to the learned advocate, that was the date from which 60 days limitation for instituting the appeal were to be computed. Mr. Mwapongo was resolute that, the Deputy Registrar's letter dated 10/07/2020 (at page 133 of the record) asking the appellant's advocates to collect a certificate of delay issued on the same date could not be taken into account in excluding the time for institution of the appeal which had already expired and thus, the rectified certificate of delay issued after the Court's order made on 31/10/2022 is incapable of rescuing the appellants' appeal. The Court was referred to its unreported decision in Adolf Malekia Sendeu (Holding power of Attorney of Betty Huber Alias Elizabeth Huber Sendeu v. Silver Sendeu and Two Others, Civil Appeal No. 56 of 2020 for the proposition that, a certificate of delay is not one of the vital documents to be incorporated in the record of appeal. Armed with that decision, Mr. Mwapongo invited the Court to hold that the appeal instituted on 07/09/2020 on the basis of an erroneous certificate of delay is incompetent for being time barred and ought to be struck out with costs. Resisting the preliminary objection, Mr, Ringia was valiant that the date from which 60 days were to be reckoned was 10/07/2020 on which the Deputy Registrar notified the appellant's advocate that the certificate of delay they had requested was ready for collection without which, the appellant could not have instituted a competent appeal. In the course of his submission, Mr. Ringia conceded having obtained requisite copies of the documents prior to 29/05/2020 but the ruling and drawn order require corrections in the name of the appellant which prompted his firm writing a letter dated 05/05/2020 (at p. 130 of the record). Through that letter, the appellant's advocates requested to be issued with a certificate of delay in terms of rule 90(1) of the Rules. All the same, Mr. Ringia could not specify the date on which his firm was furnished with the said copies neither the date on which the Deputy Registrar notified them of the availability of such copies for collection in terms of rule 90(1) of the Rules. It was his further submission that, since all along the appellant did not sit idle but kept on reminding the Deputy Registrar to furnish his firm with copies of proper documents as evident by a letter dated 05/05/2020 and 20/07/2020, time had not yet run out against the appellant before 10/07/2020 the date on which the Deputy Registrar issued a certificate of delay. In the premises, Mr. Ringia urged that the appeal was instituted timeously and invited us to dismiss the preliminary objection. Rejoining, Mr. Mwapongo discounted the submissions in reply contending that they were made from the bar rather than the record of appeal. Our starting point torwards determination of the application is the status of a certificate of delay issued in pursuance of rule 90 (1) of the Rules. In doing so, we shall do no better than refer to the Court's decisions in that regard, in particular, D.T. Dobie & Company (Tanzania) Ltd v. N.B. Mwaitebele [1992] T.L.R 152, Kantibhai M. Patel v. Dahyabhai F. Mistry [2003] T.L.R 437 and The Board of Trustees of the National Social Security Fund v. New Kilimanjaro Bazaar Ltd, Civil Appeal No. 16 of 2004 (unreported). The rule developed by the Court from the above cases consistently applied in various decisions is to the effect that, it must be free of any errors otherwise, the Court is entitled to disregard it if it is satisfied that it does not state the truth. In Kilimanjaro Bazaar case (supra), the Court stated: "...A certificate under Rule 83 (1) o f the Court Rules is a vitai docum ent in the process o f institu ting an appeal It com es into p iay after the 6 norm al period o f sixty days fo r filin g an appeai has expired. We are o f the view that there m ust be strict com pliance with the Rule. The R egistrar had not supplied the appellant with the docum ents requested for, thus rendering the certificate incorrect. This is a serious error. The certificate was false and th is fountain o f ju stice cannot overlook such an error in the course o f advancing ju stice ... "[A t page 13]. In that case, the Court disregarded a certificate of delay which was found to have been issued by the Registrar of the High Court in disregard of the provisions of rule 83 (1) of the revoked Court of Appeal Rules,1979 the equivalent of rule 90 (1) of the current Rules. The position in the instant appeal is that, much as there is no disputein this appeal that the appellant applied for certified copies of proceedings in pursuance of rule 90(1) of the Rules, there is dispute on the date on which the appellant's advocates were notified that such copies were ready for collection. It is instructive that such a date is significant for the purpose of computation of time for institution of the appeal. Mr. Mwapongo maintained that the correct date was 29/05/2020 but Mr. Ringia had a different view. Despite conceding that he collected the copies from the High Court without payment of any court fees on an undisclosed date he contended that, such documents were wanting hence the letter to the Registrar dated 05/05/2020. That letter reads in part: "... However, the said copies have been availed to us with anom aiies as to the sa id name o f the p la in tiff and availed out o f tim e se t to lodge an appeal, "[at page 130 of the record]. In his letter referenced: Land case No. 127/2018 of 29/05/2020, the Registrar responded: "please fin d the requested docum ents hereby attached." However, that letter does not appear to be in response to the appellant's letter dated 19/11/2019 notifying the appellant's advocates that the documents requested were ready for collection. This would appear to be in tandem with Mr. Ringia's concession that he collected copies of documents earlier than 05/05/2020 even though there is no evidence of any letter from the Registrar on the date on which he notified the appellant in that regard. Be it as it may, the nagging issue for our determination is whether the date shown in the rectified certificate of delay; 10/07/2020 is the date on which the Deputy Registrar notified the appellant of the availability of the requested documents as urged by Mr. Ringia and resisted by Mr. Mwapongo. With respect, we disagree with Mr. Ringia. We say so because, the said letter was meant to attach a certificate of 8 delay rather than notifying the appellant's advocates that the documents they had requested were ready for collection. We note that the Deputy Registrar made reference to a tetter dated 19/11/2019 and attached a certificate of delay which had not been applied for in that letter. On the contrary, the appellant's advocates applied for a certificate of delay in their letter dated 05/05/2020 responded to on 29/05/2020. From the reading of the same letter, the Deputy Registrar acted on the request by correcting the errors in the copies of ruling and drawn order in relation to the name of the appellant and issued a certificate of delay. It is surprising that the Deputy Registrar had to wait until 10/07/2020 to write another letter as he did attaching a certificate of delay long after 29/05/2020. Consistent with our decision in Kilimanjaro Bazaar, the rectified certificate of delay in the supplementary record does not stand the test of a valid certificate issued in pursuance of rule 90(1) of the Rules. Put it differently, notwithstanding the appellant's letter of 20/07/2020 incorporated in the supplementary record of appeal, the rectified certificate of delay cannot cure the apparent defect. Indeed, that letter makes matters even more complicated because, by Mr. Ringia's own admission his firm had been supplied with copies of proceedings on an unknown date prior to 05/05/2020 which prompted them asking for corrected documents vide letter dated 05/05/2020. That letter was acted by the Deputy Registrar on 29/05/2020 by attaching copies of the documents requested. In our view, logic and common sense would dictate that, upon receipt of the documents requested, the appellant was in a position to institute his appeal and, as argued by Mr. Mwapongo relying on the Court's decision in Adolf Malekia Sendeu (supra), a certificate of delay merely serves to exclude the days necessary for the preparation of certified copies of documents for appeal purposes rather such certificate by itself being a vital document in the record for the purpose of the appeal. Although there is no evidence of any letter from the Deputy Registrar notifying the appellant's advocates in terms of rule 90(1) of the Rules in response to the letter dated 19/11/2019 in the circumstance of the facts in this appeal, it is legitimate to treat the letter dated 29/05/2020 as the date on which the Deputy Registrar formally notified the appellant's advocates and supplied the documents requested for the purpose of the appeal. In our view, had there been any formal notification for collection of the requested documents earlier than that date, since such documents were wanting, the operative date should have been the date on which the Deputy Registrar supplied proper 10 documents which is 29/05/2020. That means, as submitted by Mr. Mwapongo, time for instituting the appeal expired on 29/07/2020, a period of 19 days after the issue of the certificate of delay. Apparently as evident at page 128 of the record of appeal, the Deputy Registrar had issued a certificate of delay excluding the time up to 29/05/2020 which was subsequently rectified at the instance of the appellant's advocate. Consequently, the exclusion made by the Deputy Registrar on the basis of his letter of 10/07/2020 the date on which he issued the impugned certificate of delay subsequently corrected on 21/11/2022 was patently erroneous. Such a certificate of delay purporting to exclude 234 days for appealing to 10/7/2020 allegedly the date on which the appellant's advocates were notified that the documents were ready for collection is invalid and incapable of rescuing the otherwise time barred appeal. Contrary to such certificate, the Deputy Registrar's letter is too clear to require any interpretation for it says what it says; attaching a certificate of delay as requested by the appellant's advocates in their letter dated 19/11/2019 even though such letter did not ask for such certificate. li In the upshot, we are constrained to sustain the preliminary objection as we do and hold that the appeal is time barred. The time barred appeal is accordingly struck out with costs to the first respondent. Order accordingly. DATED at DAR ES SALAAM this 18th day of July, 2023. R. K. MKUYE JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 20th day of July, 2023 in the presence of Mr. Inviolata Wangoma, learned counsel for the appellant, Mr. Godwin Musa, learned counsel for the 1st respondent and Ms. Hosana Mgeni, learned State Attorney for the 2nd, 3rd & 4th respondents, is hereby certified as a true copy of the original.