20060504 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: LUBUVA, J.A., MROSO, J.A., And NSEKELA, J.A.) CIVIL APPEAL NO. 28 OF 2001 INSTITUTE OF FINANCE MANAGEMENT ............................ APPELLANT VERSUS 1. THE CHAIRMAN CONCILIATION} 1 BOARD, DAR ES SALAAM 2. THE MINISTER FOR LABOUR . .. ......................... RESPONDENTS 3. THE ATTORNEY GENERAL , (Appeal from the Ruling of the High Court of Tanzania at Dar es Salaam) {Katiti, J.) dated the 21 st day of June, 2000 in Miscellaneous Civil Cause No. 81 of 1999 21 February & 11 May 2006 RULING NSEKELA, J.A.: The appellant, the Institute, of Finance Management, was the losing party in Misc. Civil Application No. 50 of 1999 in the High Court, Dar-es-Salaam (Katiti, J. ). , Aggrieved by the decision, the appellant has now come to us by way of appeal. 2 On the 5.12.2005 at the commencement of the hearing, the I Court was unsure as regards the oompetency of the appeal before it. I I On perusing the record of appeal( it was noticed that the notice of appeal was filed on the 30.6.2000 whereas the record of appeal was filed on the 12.4.2001. On the face of it the appeal seemed to be 1 ' incompetent and consequently the Court reques~ed Mr. Rweikiza, I learned advocate for the appellart, and Ms. Sehel, learned State I Attorney to address the Court in order to resolve this controversy. In addition the Court ordered that a person from IFM (the appellant) who served the disputed letter,• Ref.No.LEC/IFM/2000/11, on the i respondents, and the person who received that letter should I ! swear/affirm affidavits to that effect. On the 19.12.2002, one Mary S. Mniwasa, Senior Personnel and Administrative Officer cum Legal I Secretary of the appellant duly filed her affidavit. Paragraphs 6 and 7 of Mary· S. Mniwasa's affidavit provides as follows- 3 "6. Immediately after presenting the l~tter, and without first going to my office at IFM, I i went straight to the office of the Attqrney- General to serve a copy of the letter under consideration. At the reception on the ground floor of the building housing the offices of the Attorney General, I explained to the ,more I than four people present there that I wanted to go upstairs to serv~ the letter. One of them, a lady, asked me what was the letter about, and I explained. When I explained, one gentleman said it had arrived and askedI me to give it to him (imefika hiyo nipe). I gave it to him and he signed my dispatch book. Annexed hereto marked "AA" is a copy of the page of the disp9tch book showing that the letter was received. 7. I honestly cannot remember · that ' gentleman even if shown to me now. I did not take any particular interest in I marking his face." (emphasis added) According to this affidavit, the deponent cannot remember the person who received the letter in ~he building housing the Attorney- 4 General's Chambers. Mr. Rweikiza has strongly· submitted that the unidentified lady who apparent!~ signed the dispatch book as I acknowledgement of receipt of the letter should be construed as service upon the Attorney-General. Ms. Sehel has vehemently denied 1 that the Attorney General was served with a copy of the letter in i question. It is not disputed that the receipt of the l~tter was against signature in the appellant's dispat~h book. The deponent has not disclosed the name or identity of the person who re'ceived the letter. Rule 20 (7) of the Court of Appeal ~ules provides - "Where any document is required to be sent to any person, the document may be sent by hand or b!y registered post to I that person or to "ny person entitled under Rule 28 to appear on his behalf and notice of the date fixed for the hearing of an application or appea.1 or for the delivery of judgment or the reason's for any decisio~ may be given by telephone or telegram." ( emphasis added) ,) 5 The letter in dispute herein was allegedly delivered by the deponent to an unknown person on; the ground floor of the building in which the Attorney-Generals Chambers are located. We do not, with respect, accept that this is the' sort of service c;ontemplated by ' Rule 20 (7) above. The appellant was enjoined to serve this letter on the respondent and there must b~ proof of such service. In the absence of such proof, the appellant is not entitleq to rely on the exception to sub-rule (1) of Rule 83 when sixty days elapsed. The notice of appeal was filed on the 30.6.2000 and the record of appeal ' was filed on the 12.4.2000, clearly ;after the expiration of sixty days reckoned from the 30.6.2000. The certificate issued: by the Registrar of the High Court under Rule 83 (1) was therefore invalid as the appellant was not entitled to rely on,' the exception. 1 I In the result, the appeal was filed out of time and we I accordingly strike out the appeal with costs. 6 I DATED at DAR ES SALAAM this 4th day of May, 2006.1 ; I D.Z. LUBUVA .. C•,,, JUSTICE OF APPEAL i I J. A. MROSO I JUSTICE OF APPEAL H. R. NS~KELA i JUSTICE OF APPEAL I certify that this is a true copt of the original. 1: 1: I I (S. A. N. ~URA) SENIOR o~UTY REGISTRAR