20090220 TZCA Dar es Salaam 1

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 175 OF 2008 INTERNATIONAL COMMERCIAL BANK (T).LTD .................• APPLICANT VERSUS AGIL ISLAM AND TWO OTHERS ................................... RESPONDENTS (Application TO STRIKE OUT NOTICE OF APPEAL from the Decision of the High Court of Tanzania at Dar es Salaam) (Longway, J.) Dated the 27th day of July, 2007 In Civil Case No. 168 of 2006 RULING 20TH FEBRUARY, 2009 MANDIA l.A: I In a Notice to Motion lodged in this Court on 3rd December, 2008, the applicant applied for an order from this Court to strike out ,;· a Notice of Appeal filed by the respondents on 3rd July, 2007 against the Ruling and Order of the High Court of Tanzania (Land Division), dated 27th July, 2007 in Land Case No. 168 of 2006. The reason for file and move the appeal. An affidavit, sworn by Joseph Tadayo, advocate, on 27ti, November, 2008 was filed in this Court in accompaniment of the Notice of Motion. The applicant is represented by Mr. Joseph Tadayo, learned advocate, while tile respondent is represented by Mr. Ukong'wa, learned advocate. The agreed facts show that on 26th July, 2007, the High Court of Tanzania,· Land Division, pronounced a ruling in which it dismissed a suit filed by the present respondent. After the dismissal of the suit the present respondent filed a Notice of Appeal on 4/8/2007 and applied for a copy of proceedings for purposes of appeal. Thereafter there is no record that the respondent took any steps to prosecute ; the appeal. On 3r-rl December, 2008, the present application was filed. Mr. Tadayo argued before this Court that Section 47 (1) of the Courts (Land Disputes Settlement) Act, No. 2 of 2002 gives a condition precedent before an appeal from the Land Division of the 2 . High Court can be filed in the Court of Appeal. The condition precedent is that tile intended appellant must obtain leave of the High Court prior to filing of the appeal in the Court of Appeal. Mr. Tadayo also argued that by keeping quiet between 4/8/2007 and 3rd December, 2008, the respondent has not exercised diligence in pursuing his appeal. For these two reasons Mr. Tadayo argued that the Notice of Appeal filed in this Court deserves to be struck out. In reply, Mr. Ukong'wa, counsel for the respondent, argued that the application is bad in law for citing Rule 3 (2) (b) and (c) as well as Rule 82 of the Court of Appeal Rules. Mr. Ukong'wa argues that Rules 3 (2) (b) and ( c) is the major rule and Rule 82 is the supplementary rule, so citing both rules makes the notice bad in law. Mr. Ukong'wa also advanced the argument that in his opinion Section 47(1) of the Courts (Land Disputes Settlement) Act is in conflict with Section 47(3)in that Section 47(1) lays down the requirement for leave prior to filing an appeal in the Court of Appeal while Section 47 (3) provides that procedure for appeals to the Court of Appeal shall be governed by the Court of Appeal Rules, 1979. It is Mr. Ukongwa's view that the two sub-sections of Section 47 are diametrically 3 opposed in that High Court while the other direct for appearance in the Court of Appeal without first appearing in the High Court. As for due diligence, Mr. Ukong'wa argues that he applied for a copy of proceedings in time, and has since then been visiting the Court to ask for the same without success. According to Mr. Ukong'wa, the delay in the supply of the proceedings cannot be attributed to him. Both counsel cited several authorities in support in support of their respective cases. On the propriety of the application, Mr. Ukong'wa argues that the application is bad in citing both Rule 3(b) and (c) and Rule 82 because Rule 3 is the main rule while Rule 82 is the supplementary rule. On his part Mr. Tadayo, advocate for the applicant argues that it is not correct to say that Rule 82 is supplementary to Rule 3. He says Rule 82 is the substantive rule and Rule 3 is the provision which gives general powers to the Court to administer justice. Mr. Tadayo, learned advocate, is obviously right. Rule 3 (2) (b) and (c) give general powers to the Court to enable the ends of justice to be met, and also to prevent the abuse of the process of Court. On the other hand, Rule 82 is the specific rule catering for the application before 4 I us .. Rather than use the term supplementary, Mr. Ukong'wa should have used the term complementary. The application as filed is in proper form. Mr. Tadayo has raised the point that the respondent did not act with due diligence by not following up on the application for proceedings through letters of reminder to the High Court. The record however show that Mr. Ukong'wa has complied with Rule 83 (2) by applying for a copy of proceedings and sending a copy of his application to the applicant. Can we say that failure to send a written reminder is failure to take an essential step within the meaning of Rule 82? I do not think so. The Court of Appeal Rules do not provide for parties to send reminders to Court, written or oral. What the rules provide for is the limitation for institution of appeals under Rule 83, which is sixty days. The same rule 83 also provides for the exception to the sixty day rule if Rule 83(2) is complied with. Since Mr. Ukong'wa has complied with Rule 83 (2) he cannot be taken to task for not sending a reminder to the Court. So long as there is proof that the application for copy of proceedings has not been acted 5 .. .,.. ,~..,1 ~ ' upon by the High Court, Land Division, the respondent is still protected by the sixty - day rule. Mr. Tadayo also argued that the respondent is in default by not seeking leave of tile High Court, Land Division, before filing the notice of appeal in the Court of Appeal. He points out Section 47(1) of the Courts (Land Disputes Settlement) Act, No. 2 of 2002. For the sake of clarity, let me reproduce the whole section:- "47 - (1) Any person who is aggrieved by the decision of the High Court (Land Division) in the exercise of its original, revisional or appellate jurisdiction, may with the leave from the Higl1 Court (Land Division) appeal to the Court of Appeal in accordance with the Appellant Jurisdiction Act, 1979. (2) Where an appeal to the Court of Appeal originates from the Ward Tribunal the appellant shall be required to seek for the 6 C Certificate from the High Court (Land Division) certifying that there is point of law involved in the appeal. (3) The procedure for appeal to the Court of Appeal under this section shall be governed by the Court of Appeal Rule, 1979. Mr. Ukong'wa advances the argument that sub-section (1) and sub-section (3) of Section 47 are in conflict. In his opinion, sub- section ( 1) lays down a condition precedent of leave before an appeal id filed in the Court of Appeal, while sub-section (3) allows an aggrieved party to file an appeal straight in the Court of Appeal without first applying for leave from the High Court. Looking closely at Section 47 I am satisfied that Mr. Ukong'wa argument is not correct. Section 47 (1) is the enabling section whose essence is that an aggrieved party can only access the Court of Appeal with leave from the High Court in accordance with the Appellate Jurisdiction Act, 1979. By specifically mentioning the appellate Jurisdiction Act, 1979, Section 47 (1) is conferring legality to the appellate process. Section 47 (3), on the other hand, says that the procedure for appeal shall be 7 governed by the Court of Appeal Rules, 1979. The two sub-sections are therefore different, with one being the enabling provision and the other the procedural provision. By failing to apply for leave from the High Court, the respondent has not taken and essential step in the appellate process. He is therefore in breach of Rule 82 of the Court of Appeal Rules. Tile application is therefore granted. The Notice of Appeal filed by the respondent on 3rd July, 2007 is struck out. The applicant is allowed costs of this application. DATED at DAR ES SALAAM this 20th day of February, 2009. 'I. '"'-} •.·• W.S. Mandia ---- ---.... JUSTICE OF APPEAL 'f~{\__/ P.B. 1< ·aday- DEPUTY RE.GfsTRAR 8