20131212 TZCA Mwanza

cJcS IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: RUTAKANGWA, J.A., KAIJAGE, ).A., And MUSSA, J.A.) CIVIL APPLICATION NO. 23 OF 2012 INSPECTOR GENERAL OF POLICE HONOURABLE ATTORNEY GENERALr ........................... .. APPLICANTS VERSUS ELIAS 1'4,.#.VVA ................................................................... RESPONDENT (Appication for Orders from the Decision and decree of the High Court of of Tanzania at Mwanza). (NyançjjJ.) dated the 24th day of March, 2012 in Civil_Case No.. 2 of 2000 RULING OF THE COUFT 10th & 13th December, 2013 RWKNGWA J.A: This appcation was brought under Rueb 4 (1), 3, 89 (1) ;d 102 (1)o the Tanzania Court of Appea Ruies, 2OO (the Ru.$). The appcants were rnovng the Court to sue the PO1CV9n ,G. ) The Notice of Appeal and 17emQrar/dun7 of Appeal to the Cburt of Appeal tiled by Applicants on the 13i:h day of June, 2012 be w/thdrawn on the ground that' they were ioççyed per Incur/urn. ii) 77ie tZ'ne to serve the respondent with the Notice of.A/2pea! to the Court of'Appea/ lodgea' by the Applicants on the 4t/ dqv of April, 2011 be extended on the ground that the non- sert'ice 'vas due tc' the Resøondents non-provisIon of h/s address for service. 4 The time for lodging the Appeal pursuant to the Applicants Notice of appeal filed on the 4h April, 2011 be extended on the ground that the failure to. institute the appeal was occasioned by merely technical formalities. The Stay bf Execution of the Decree in H/C Civil Case No. 2 of 2000 be issued out of time/' For an easy appreciation of what had prompted the institution of this application (the application), we have found it meet to give this background: The applicants were the defendants in Civil Case No. 2 of 2000 of the High Court at Mwanza (the suit). Initially, the suit was instituted by the respondent at the Buko.ba High Court District Registry when the respondent/Plaintiff was residing and working in Bukoba. Following the termination of his services,, he successfully applied for the • transfer of'théuit to the Mwanza High Court District Registry. . At first, the respondent was being advocated for by M,'s .Magongo and Company, Advocates. However, by its letter dated. •28th March, 200.1, the respondent's advocate . informed the Distinct Registrar, High Court BUkoba that they were no longer representing him as he had terminated their services. . . •. • .. . .. .. ... .. -- Going by the record of the trial High Court, the respondent/plaintiff: had been fending for himself from as early February, 2001, while the suit was yet to be transferred to the Mwanza District registry. The record further reveals thaton 15/5/2009-when the matter went for mediation before Sumari, J., the respondent had no lgal.representation,'while the applicants were represented by Mr. Seth Mkemwa, learned State Attorney. We havefurther gleaned from the record of proceedings that during the entire trial which commended on 6th October, 2009 and was concluded on 15th February, 2011, it was the respondent /plaintiff who prosecuted the suit on his own. Judgment in the suit was delivered. on 24th March 2011 in the presence of the respondent/plaintiff in person, with no legal representation, and one Mr. Dennis Kamara, learned State Attorney, for the applicants/defendants. Judgment was in favour of the respondent/plaintiff. • The applicants/defendants were aggrieved by the High Court decision. On 4th April, 2011, they duly lodged a notice of appeal to this Court. In terms of Rule 84 (1) of the Rules,, the applicants were • mandatorily required to serve a, copy of the• notice of appeai on the ';.respondent "before or within fourteen days" of , its 'lodging. They admittedly, failed to do so and they have not done so to date The assigned reason for this serious default is çasuay explained thus Jill • paragraphs (4) and (5) of Mr.. Obadia :ikajungu's affldavit in support of. the notice of motion:- "4. THAT in' pursuance of the: obiigation':iñ. Rule. 84 (1) of the court of Appeal Ru/es 200, the Applicants served copies. Notice of Appeal and Application letter for wpies of rccord from the High Cou -t Regisfrdr through Ii's ravo 1e. Magongo and company Advocates, the Respohdent fast known address. 5. THA 7 upon service of the said Notice and. Application Letter the RespondentsLc advocate declined to be served on the ground that he was no longer instructed by, the said respondent and to that efic1, the learned advocate, MR. MAGOIVGO served Ms. VERONIK4 CHARLES, a Law.. Secretary a copy of a letter of withdrawal from representing the respondent: of which it hereby attached and marked "A".". The applicants equally failed to serve on the respondent a copy of the letter applying to be sUpplied with copies. of proceedings, judgment and deéree on accountof the same excuse. As we significantly noted in our ruling delivered on 5th December, 2013 in Civil Application No. 11 of 2012 between the same parties, this !etter dated 11/4/2011, was not copied to anybody, not . even advocate Magongo. So the above averments of Mr. KajungU smack of falsehood. Having failed to do so, the applicants, were required to,'institute their intended appeal "within sixty days of the date, when the notice of appeal was lodged," that 'is, by • 3rd . .. June, 2011. They failed to do.so . All thé'sarné, with the benefit of foresight, the applicants.irstftuted.. Misc. Civil Application No. 13 of 2012 in the same trial H.gh Court. This was on gth March,. 2012. The.application was.by chamber summons under section 11 (1) of the Appehate Junsdiction Act, Cap 141 R E 2002 and Rule 47 of the Rules The applicants, were seekingtwo main reliefs, namely - (i) Leave to file a notice of appeal out oft/me, 'and (i/) , Leave to file an appeal out oft/me. The chamber 'summons'was supported byan affidavit sworn to by one Castus N.damuoba, learhed State Attoney. We. have foUnd the contents oi paragraphs 6,8 and 10 of this affidavit'-which were uneqUivocally 4 disputed by the respondent in his counter affidavit, to The quite interesting and woith reproducing here. They are as follows:- "6. That upon fifing the said notice of appeal on the fh day of April, 2011, on the 6th day of April, 2011 the Applicants served the Respondent with. .the said notice of appeal through MA CONGO AND COMPANY AD VOCA TE, but . the said MA CONGO AND COMPA NY . AD VOCA TE rejected the service on the ground that the Respondent was no longer their client. . 8. That having the said .MAGONGO AND. COMPANY ADVOCATE reject the sent/ce. of .he said. nodr. of appeal,. the Apphcants have had io dnotheI a1te;ntiv rneanc through winch the Respondent could b cerve I w'th 1/ic notice. .... ..,. .,.. ,..- . 10. That having the Applicants unable to serve respondefit with the notice .Within.:3ay5 tfle.pppficants could pot he able to lodge the. appeal to the. of Appeal wih! required time .. the appeal could jiotbe filed•.withoi.it first . serving the rsponcènt with the !?QtiO of apaL . . . Rebutting the above a'ermënts, th respondent thus sucdnctiy stated in his counter affidavit:- ... . . . .. - '3 That the contents of paiagraphs 5,61 7 and 8 of Athdav'r are noted with a c/arificá tion' that MAGONGO & W/'iPANY AD VOC4TES,, had disqualified himself frown advocating fbr. the respondent well back on 28-3-2001 vihen this: case was: 5 at the High court of Tanzania at Bukoba vide his letter Ref. No SAM/HC/ CIVIL C. 212000 whose photocopy is appended hereto, marked Annexture .4 "forming part of this Counter Affidavit 4. That later the said Civil Case was transferred to the High Court of Tanzania at Mwanza vide Hi'h Court of Tanzania at Bukoba District Registrar letter No. BK/DR/JIK1651351VQL. 111160 dated 1 5-4-2003 whose photocopy is appended hereto marked Annexure forming part of this counter Affida vit 5 That, at High Court of Tanzania at Mwanza , this case was being conducted/prosecuted by the deciee holder/Respondent in person., and without. the services of any Advocate MAGONGO & Co. AD VOPA TES inclusive, 1 and the Defencesidé 'being conducted by the office of the Attorney General at Mwanza thus the deponent, in this instant Misce/laneou Application. It Is. thus very strange and: ridiculcus to nOte the: office of the State Attorney at filwanza, alleging this case was being conducted by MA GONGO & CO. A!) VOCA TES 'whereat he Wrongfully sent the alleged Notice of appeaL . . 6. That contents of paragraph 9,10 and 11 of Affidavit are strongly disputed with and averment that the same are an afterthought, as from the record of the trial court including the applicant State Attorney's records, the respondent has been using the address of EL IA S MAR WA of P.O BOX 103 M(JSOMA after he had terminated services of U MAGONGO & CO. ADVOCATE as dearly contained in the chamber summons & affidavit for 3' enlargement of life span of this •Civil Case No. 2 of 2000 which were duly served and received by State Attorney's office Mwanza on 17-7- 2008/' He accordingly pressed the High Court to dismiss the application with costs, so as to enable him execute the decree in his favour. In disposing of the application, the learned High Court judge briefly held thus:- "ORDER Having heard both sides, I am sat&ëd that in a way the applicants have shOwn their efforts to trace the respondent in vain throUgh the former advocate who Was enqa ed by the resDondent... As submittecJ the delay to file a notice of appeal and serve . 1... it in time to respondenL was invo/d of technica-litie,5. which in law should not be a//owed to ieopard'e one s justice The application was granted .ahd the appilcants were ordered to file the notice of appeal and memorandum of appeal within 14 days from 30th May, 2012. The appiicants compiled with this order on 13th Jp 2012. It is the same notice of appeal and memorandum of appeal which the applicants are seeking to withdraw in, this application, which was lodged on 23 Novembet, 2012 11 The above facts notwithstanding, the respondent also sought to have the notice of appeal lodged on 4th April, 2011 struck out or be deemed to have been withdrawn under Rules 89 (2) and 91(a) of the Rules. This Application towards that end, i.e. Misc. Civil Application No. 13 of 2012, was lodged on 111h July, 2012. It was heard by the Court on 281h November, 2013. In our ruling delivered on 5th December, 2013, we found the prayer to have the notice of appeal struck out under rule 89 (2) of the Rules to be totally misconceived. This was because the respondent herein could not successfully invoke that rule as he had never been served with a copy of the said notice of appeal. However, we found merit in the second limb of the notice of motion based on Rule 90 1 (a). We were of the firm view that the respondents (now applicants) were required to institute, their intended appeal within 60 days of the dateof the lodgement of the noticeofappeal asthey had failed to serve a copy of 1heir apolication for copies of proceedings, judgment and decree onthé respàndent. We accordingly found and held that: "the respondents' notice of appeal should be and it is hereby deemed to have been withdrawn sixt' days after its /odgement": It goes without saying, therefore, that the notice of appeal the subject of prayers (ii) and (iii) in the notice of motion which intituted the application is no longer in existence In view of the above state of affairs, when the application came before us for hearing on lothDecember, 2013, Mr. Obadia Kajungu, 8 learned State Attorney, prayed for its withdrawal under rule 58 (1) of the Rules as it had been overtaken by events. He, however, urged us to make no order as to costs. The respondent who was fending for himself, had no objection to the application for withdrawal. Nevertheless, he strongly pressed us to award him costs as he has, undoubtedly, been incurring expenses in attending this matter. Mr. Kajungu adamantly insisted that the applicant does not deserve to be awarded costs as he had deliberately failed to provide the address of service. It is this adamancy which has forced us to deliberately write this ruling with a long background to support our final verdict on the issue. In our endeavour to resolve the issue of whether or not the respondent deserves to be awarded his costS, we have asked ourselves this pertinent qUestion: was the respondent to blame in any way for the .,. dismal failure of the applicants to serve the notice Of appeai and the letter applying for copies of proceedings, judgment and decree, on him? Our considered answer to this crucial question based. on the undisputed facts revealed n the narrated backgroud to this L.ortive ppcation, Is absoutely in the negtive We have no linqenng doubts in or minds when we choose to share the certitude of the respondent that since he has all along personally been prosecuting the suit. since 2001, it was very strage " and, indéed unthinkab for the applicants to have conceived the idea of attempting ..to serve him through his "advocat, M,/s Magongo and Cbmpany, Advocates" . truly, a short-cut is not always the shortest way. Q The applicants knew very well that the respondent had had no legal representation at all since 2001. It would, therefore, be a monstrous failure of justice on our part if we elect to reward the applicants for their (happy - go - lucky) attitude. Frankly, we are not prepared for that We should honestly confess that we have found ourselves unable to suppress our otherwise lurking resentment on how this matter has been handled by the applicant. We havefound no reason, leave alone a convincing one, to account for their failure to comply with the mandatory dictates of the Rules. They have themselves to blame for their slapdash approach in discharging their duties, and the respondent has no share of blame in it. The respondent, therefore, is entitled to his costs in defending this application. With a modicum of care on the part of the applicants, we are convinced that this application would have been unnecessary. Al said and done, we grant the applicants' prayer to have the application markea withdrawn under Rule 58 (3) of the Rules, but we grant costs tothe respondent. - It is soordered. DATED at MWANZA this 12th day of December, 2013. 10 E.M.K. RUTAKANGWA JUSTICE OFAPPEAL S.S. KAIJAGE JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. 1!