CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM; MKUYE. J.A.. KAIRO. J.A. And MDEMU. J.A.^ CIVIL APPEAL NO. 546 OF 2022 HI BROS CANVAS & TENTS LIMITED................................ 1st APPELLANT PARVES ABDULHUSSEIN HIRJI........................................2nd APPELLANT VERSUS I & M BANK (T) LIMITED ................................................ RESPONDENT Appeal from the Judgment and Decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam,) (Maqoiqa, J) dated the 20th day of September, 2021 in Commercial Case No. 03 of 2018 RULING OF THE COURT 20th & 28th March, 2025 MKUYE, J.A.: In this appeal, the respondent I & M Bank Limited vide Commercial Case No. 3 of 2018 instituted a summary procedure suit against the appellants, Hi Bros Canvas and Tents Limited and Parves Abdulhussein Hirji jointly and severally praying for payment of TZS. 2,590,240,074.08, being the outstanding credit facility extended to the 1st and 2nd appellants plus interest. Upon being served with the plaint under summary procedure, the appellants successfully applied to defend the suit. They filed a Written Statement of Defence (WSD) and later an amended WSD in which they did not deny to have applied and obtained the loan from the respondent but admitted default in repayment since it was frustrated by the respondent's act of freezing the 1st appellant's accounts. On top of that, the appellants raised a counter claim against the respondent for payment of special damages to the tune of TZS. 21.027,600.00 and TZS. 10,160,000.00 which was withdrawn by the respondent from the 1st appellant's account without her consent, interest on special damages, general damages and costs. At the end of the trial, the trial court found in favour of the respondent and, accordingly, dismissed the counter claim raised by the appellants. Aggrieved by the trial court's decision, the appellants have appealed to this Court on eight (8) grounds of appeal, which for a reason to become obvious in the due course, we shall not reproduce them. When the matter was called on for hearing, Mr. Godwin Muganyizi, learned advocate, appeared representing the appellants. On the other hand, the respondent had the services of Messrs. Godwin Nyaisa and Robert Mosi, both learned advocates. Before the hearing of the appeal could commence at earnest, Mr. Nyaisa rose and intimated to the Court his concern over the letter requesting for the copies of proceedings, judgment and decree from the Deputy Registrar. He contended that, ordinarily in terms of rule 90 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), an appeal is required to be filed within sixty days after the lodgment of the notice of appeal. However, he pointed out that, where the appellant applies within thirty days after the decision, for the copies of proceedings and serves a copy of such letter on the respondent within thirty days, the appellant would be entitled to a Certificate of delay which excludes the number of days used in compiling the documents which will eventually benefit him/her. In this case, Mr. Nyaisa contended, the letter requesting for copies of proceedings appearing at page 3637 of the record of appeal was not served on the respondent. There is however, he added, an affidavit sworn by Advocate Erasto Ntondokoso who was employed as an indoor lawyer of the plaintiffs (appellants herein) as he appeared in the trial court to receive judgment, to the effect that the respondent's counsel refused service, who in his view, was not the right person to swear such an affidavit. The learned counsel went on submitting that, the issue of service of documents is governed by rule 22 (1) of the Rules which is to be done under the practice of the Civil Procedure Code, Cap. 33 R.E. 2022 (the CPC) and that according to rule 22(6) of the Rules, proof of service may be given by an affidavit which, according to the practice under the CPC, the same has to be exhibited by court process server. He thus argued that, the proof of service envisaged under rule 22 (6) of the Rules is an affidavit of the process server as was observed in the case of Mbilima Crispo Munyaga v. Veriana Mbilima, Civil Application No. 671/01 of 2023 [2024] TZCA 244 (26 March, 2024) TanzLII and Tumsifu Gabriel Mmari v. Exaud Gabriel Mmari (Administrator of the estate of the late Silipa Yetro Lema), Civil Appeal No. 397 of 2022 [2025] TZCA 192 (13 March, 2025) TanzLII. He therefore insisted that, the advocate's affidavit in this case, cannot exhibit an averment of the process server who was supposed to swear such an affidavit. The learned advocate went on arguing that, assuming the advocate could exhibit official service, the affidavit lacks some of the ingredients. He elaborated that, according to the affidavital information, they went to serve the counsel for the plaintiff without mentioning the name of such advocate moreso, when taking into account that there is a number of advocates in the law firm; and some of the documents were received by one, Fatuma Baamary. To fortify his argument, he referred us to the case of Ramdhani Haji Abdulkarim v. Harbart Marwa Investments and Others, Civil Appeal No. 88 of 2015 [2016] TZCA 931 (5 December, 2016) TanzLII. He concluded that, failure to serve the letter requesting for the documents on the respondent disentitled the appellants from the exclusion of the days used for compilation of the documents. He said, since the notice of appeal was filed on 13/4/2022 after the judgment was delivered on 25/3/2023, the sixty days expired on 12/6/2022. As the instant appeal was filed on 25/11/2022, counting the sixty days from 12/6/2022 when notice of appeal was filed, it means the appeal was filed after a lapse of five months. On that basis, he implored the Court to strike out the appeal for being incompetent before the Court with costs. On his side, Mr. Muganyizi contested the preliminary objection raised by Mr. Nyaisa. He argued that, under the practice of this Court and subordinate courts, documents are served to the other party by the officers who work with the firm concerned and the court has never rejected documents served by an advocate. He contended that, according to rule 22 (1) and (6) of the Rules, proof of service is by way of an affidavit and that is what they did. He argued that, the cited case of Ramadhani Haji Abdulkarim (supra) is distinguishable as in that case the document was not served at all. In Mbilima Crispo Munyaga's case (supra), he argued, though service was done by the process server, there was no affidavit sworn to that effect. At any rate, he contended that, in all cases the advocate is not prohibited to serve the pleadings. The learned advocate insisted that, the letter requesting for documents was served on the same day the notice of appeal was served but was rejected by Hamida Sheikh. He was of the view that, as officers of the court they should be believed rather than saying they have an interest to serve. In this regard, he urged the Court to find that the preliminary objection is not merited and dismiss it. In rejoinder, Mr. Nyaisa stressed that the affidavit relating to the refusal to receive a document ought to come from a court process server who is an independent person and not an advocate who has an interest to serve. Having examined and considered the rival submissions, we think, the issue for our determination is whether the letter requesting for the copies of proceedings and judgment from the Registrar was served on the respondent as required by the law so that the appellants could benefit from the exclusion of a number of days which were used to compile the requested documents. Admittedly, institution of valid civil appeals to this Court is governed by rule 90 of the Rules. Sub-rules (1) and (3) of rule 90 of the Rules which we think are relevant to the subject matter at hand, provide as follows: "90 (1) Subject to the provisions o f rule 128, an appeal shall be instituted by lodging in the appropriate registry, within sixty days o f the date when the notice of appeal was lodged with - (a) a memorandum of appeal in quintupiicate; (b) the record of appeal in quintupiicate; (c) security for the costs o f the appeal, save that where an application for a copy o f the proceedings in the High Court has been made within thirty days o f the date o f the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery o f that copy to the appellant. (2) - N A - (3) The appellant shall not be entitled to rely on the exception to sub-rule (1), unless his application for the copy was in writing and a copy of it was served on the respondent" [Emphasis added] What is gathered from the above cited excerpt is that one, under that provision the appeal is to be instituted within sixty days after the notice of appeal is lodged in Court. Two, the provision gives the appellant a chance to apply to the Registrar within thirty days from the date of decision sought to be impugned, for the copies of proceedings and requires him to serve a copy of such application letter on the respondent within thirty days of such letter. Three, if the appellants applies for copies of such proceedings within thirty days and serves a copy thereof on the respondent, he shall be entitled to exclusion of the number of days required for the preparation and delivery of the copies applied for by the appellant as may be certified by the Registrar which will enable him/her to lodge his/her appeal after expiry of the sixty days. In this matter, while the respondent claims that the letter requesting for documents was not served on the respondent, the appellants are maintaining that the counsel for the respondent refused service basing on the affidavit sworn by Advocate Erasto Ntondokoso who was an indoors advocate for the appellants. On the other hand, the respondent is of the view that such affidavit ought to be sworn by a court process server rather than an advocate who has an interest to serve. Admittedly, service of documents is governed by rule 22 (1) of the Rules which allows service to be effected in accordance with the procedure and practice of the High Court under the provisions of the CPC read together with the Rules or any other way as the Court may direct. Essentially, the practice of the High Court under the CPC is that the service is envisaged to be carried out by the court process server. This position is supported by rule 8 of the Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, 2017, G.N. No. 363 of 2017 (the Court Process Servers Rules) which gives mandate to serve judicial and extra judicial documents to none other than the process servers. Besides that, according to guideline 6.4.3. of the Guidelines for Court Brokers and Court Process Servers, 2019 which is a document guiding on the implementation of the Court Process Servers Rules, practicing advocates are not among the eligible persons to be appointed as process servers. This means that, it is not under the mandate of the advocates to serve documents on the other parties. On the other hand, it is true that rule 22 (6) of the Rules gives guidance on the manner proof of service of the document on the other party may be made. It provides that: "Proof o f service may be given where necessary by affidavit, unless in any case, the Court requires proof by oral evidence." Our understanding of the above provision is that, the proof of service should be brought by an affidavit sworn by the process server to have served on the respondent but refused. See: Mbilima Crispo Munyaga (supra). In the said case, the Court was very categorical that in terms of the provisions of rule 22(6) of the Rules, proof of service ought to be by affidavit of the court process server who served the notice of motion swearing that, he served the respondent or his advocate. It is also noteworthy that, the issue of service and particularly where the other party refuses, is not something which has to be exhibited casually. This was observed by the Court in the case of Tumsifu Gabriel Mmari (supra) in which the Court was confronted with an issue of refusal of documents. We observed that: "...it is common knowledge that, in any judicial proceedings, refusal or acceptance o f services o f documents cannot be exhibited casually. It has to be demonstrated by the respective process server by his endorsement on the alleged refused document... (in this case memorandum and record o f appeal)". In this case, we agree with Mr. Nyaisa that, Mr. Erasto Ntondokoso was not the proper person to exhibit refusal by the respondent to receive a letter requesting for copies of documents. This is so, for simple reasons, that is to say; One, the advocate who swore the affidavit, apart from having an interest to serve unlike the process server who was an independent person, he is not eligible for appointment as a process server. Two, the letter requesting for copies of judgment, decree, proceedings and notarized exhibits found at page 3637 of the record of appeal is not endorsed that it was refused. Three, the affidavit of Advocate Erasto Ntondoloso found at page 2628 to 3639, does not specifically mention the specific counsel for the plaintiff (the respondent herein) who refused to receive the said letter (see paragraph 2 and 4 of the affidavit). This is very crucial when considering that, the said counsel may belong to a law firm comprising a number of advocates and that even notice of appeal was received by one Fatuma Baamary who is a different person from the advocate complained about. Four, it is surprising that, if at all the notice of appeal was received through Fatuma Baamary why could Advocate Hamida Hassan Sheikh refuse to receive the letter requesting the document. Five, for purposes of putting the record properly, the notice of appeal and the letter requesting for documents were not served on the respondent on the same day. While the notice of appeal was endorsed by Fatuma Baamary on 22/4/2022, the said letter, as per the averment in the affidavit, was refused on 14/4/2022. We are aware that Mr. Muganyizi urged the Court to believe in the advocates as they are officers of the Court. However, we do not have qualms in believing on them on their roles as advocates (advocacy) but, we think, the issue of service of documents is not within their mandate as alluded to earlier on. In this regard, we agree with Mr. Nyaisa that the letter requesting for certified copies of judgment, decree, proceedings and notarized exhibits dated 14/4/2022 was not served on the respondent as per rule 90 (3) of the Rules so as to entitle the appellants to benefit from the proviso to subrule (1) of Rule 90 of the Rules. In other words, the appellant's failure to serve the letter on the respondent disentitles the appellants to the exclusion of number of days which were used for the preparation of the documents sought. In the circumstance, the appeal was supposed to be filed within sixty days from the date when the notice of appeal was filed. In this case, the judgment was delivered on 25/3/2022, the notice of appeal was lodged on 13/4/2022 which was well within time. The appeal therefore, ought to be lodged within sixty days from that date which lapsed on 12/6/2022. (See: Mokiri Damas Ngoja v. National Housing Corporation and Another, Civil Appeal No. 273 of 2018 [2021] TZCA 540 (30 September, 2021) TanzLII. However, this appeal was filed on 25/11/2022 which was after almost five months from when the notice of appeal was filed. It means that the appeal was filed inordinately late. The appeal was filed out of time. In the event, we agree with Mr. Nyaisa that the appeal is time barred and for that reason, we strike it out with costs. DATED at DODOMA this 28th day of March, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 28th day of March, 2025, in the presence of Mr. Godwin Muganyizi, learned counsel for the Appellants and Mr. Godwin Nyaisa, learned counsel for the Respondent via Video Conference from Dar es Salaam, is hereby certified as a true copy of the original.