20071112 TZCA Dar es Salaam

{If>,. /) ·. _,,:-.1 :'i , J ~~/) ~-~· ;· . IN THE COURT OF APPEAL OF TANZANIA : AT DAR ES SALAAM CIVIL APPLICATION NO. 121 OF 2007 INTERPRESS OF TANZANIA LTD .. . . ... .. ......... ... ...... ... ... APPLICANT VERSUS CAROLINE YENGI {AS ADMINISTRATIX OF THE ESTATE OF JOSEPH YENGI DECEASED) ........................................ RESPONDENT {Appeal from the judgment of the High Court of Tanzania at Dar es Salaam ) {lhema, J) dated 12th day of August, 2004 in Misc. Civil Appeal No. 315 of 2001 , RULING 2nd November & 12th November, 2007 LUBUVA, J.A Under the provisions of rule 82 of the Court Rules, 1979, the applicant, through the services of Mr. Ngeleshi, learned counsel, is moving the Court for an order that the notice of appeal filed by the respondent on 20th August, 2004 in relation to High Court (Ihema, J. ' as he then was) Misc. Civil Appeal No. 315 of 200,1 be struck out. The application is supported by the affidavit duly sworn by Mr. Ngeleshi. 1 - ~....,_ , ........ I I In this application Mr. Bakil1na, learned col:Jnsel, represented I . , the respondents. From the facts: deposed and the submissions by l , I both counsel, the facts which are generally not in dispute may briefly I ; I be stated. On 12.8.2004, Ihrma, J. delivered judgment in I Miscellaneous Civil Appeal No. 31is of 2001. Dissatisfied with the II • i decision, the applicants filed notice of appeal I I on 20.8.2004. On I ' ; 25.8.2004, the respondent wrote al letter to the Re6istrar High Court, applying for a copy of the proc~edings. HowErver, there is no I : ' evidence that the respondent wa~ furnished with. the copy of the ' I i ' proceedings. In the circumstancesl as no appeal hps been instituted I I to date, the applicant has filed thi~ application seeking to have the I . I provisions of rule 82 invoked in stri~ing out the notice of appeal. I Based on these facts, Mr. Ngeleshi, learned counsel, submitted ! I that the respondent has failed to. t~ke an essential step in instituting the appeal within the prescribed ti~e. His contentidn was that under ' I the proviso to rule 83 (1), the resp~ndent was supposed to institute I ' the appeal within 60 days from t~e date of the notice of appeal, I : namely 20.8.2004. He further stated that at the hearing of the I , 2 x· I .. , r I / ' I application for leave to appeal in the High Court, counsel for the I respondent made reference in his submission to page 4 of the 1 I I I I judgment by Ihema, J. This, Mr. Ngeleshi urged, indicated that the I respondent had received a copy of the proceedings in the High Court. ' ! ', I In that situation, counsel went on in his submission, ~he respondent having failed to institute the appeal, within 60 froniI the date the I notice of appeal was filed, the notice of appeal shouldI be deemed to have been withdrawn. I On the other hand, Mr. Ngelesh:i took the view t;hat even if it is I taken that the respondent had not received th~ copy of the I proceedings, the Court should not condone the I fact that the respondent simply sat back without taking any steps in instituting the I appeal. In the circumstances, Mr. Ngeleshi submitted that had the I respondent exercised some diligence, he would have applied for I extension of time in which to institute the appeal.' In this case, the I respondent having failed to apply for extension of time the notice of i appeal should be deemed to have been withdrawn, counsel I emphasized. The Court was referred 1 to its decision: in Mrs. Kamiz 3 ' '- r , I I I Abdallah M.D. Karmal v The Registrar of Buildings And Miss I Hawa Bayona (1988) TLR 199. .! I I I I I Mr. Bakilana, learned counsel! for the respondent, ardently II I maintained that the application is highly misconceived. This is so, he I . I said, because it presupposes that ihe respondent :had received a copy of the proceedings. The fact Jf the matter was that until the i . I time of hearing the application, the i respondent had not received a I ! copy of the proceedings Mr. Bakilana: stressed. In th~t case, there is I no basis upon which to ascertain wnen the time· st~rted running in I order to compute the time within whith to institute th~ appeal. I . : I I i I Mr. Bakilana further submitted ~hat under the proviso to rule 83 I. I I (1) of the Court Rules, 1979 the timb as certified by 1the Registrar of I · I i 1 I the High Court as having been required for the preparation and I . I I I delivery of the copy of proceedings to the respondent is excluded in I I computing the time within which to i1hstitute the app~al. In this case, he said, as the respondent was n~t supplied wit~ a copy of the I I I I proceedings after applying for the same by letter of i25.8.2004 to the I I Registrar, the application for strikin~! out notice is misconceived. . In 4 ( ' I I support of his submission Mr. Bakilan~ among others, ;referred to the ! I • cases of Transcontinental Fo~arders Ltd: ~ Tanganyika Motors Ltd (1997) T.L.R 328 As'~ini Rashid v; Boko Omari i I . (1997) TLR 146 and Foreign Missron Board of ihe Southern . I Baptist Convention v Alexander P~nomaritis (19~4) TLR. 146. I I I th The application to strike out th~ notice of app~al filed on 20 I August, 2004 is based on rule 82. n: is common knoyvledge that the I ' I I I provisions of rule 82 of the Court ij.ules, 1979 are I invoked if it is ! I shown that no essential steps towar~s the institutiop of the appeal 1 ! •I I have been taken or taken within the prescribed t:ime. The rule I I provides: • I 82. A person on whom a notice of appeal, has I been served may at any time, either before or after the institution of thtj appeal, apply t~ the , I I Court to strike out the no~iceor the appe~I, as I · 1 the case may be on the ground that no appeal I , ; lies or that some essential step in the I I ' I proceedings has not been taken or has not I I been taken within the prJscribed time. 1 I I 5 ' I I I In this case, the issue for det~rmination is, w hether in the I 1 ! . I I I circumstances of the case, the respondent failed to take essential I I - I . I steps or took the essential steps outside the prescribed time under ! I •I ' I rule 83 (1). It will be recalled that it is not dispute~I by both Mr. I I I Bakilana and Mr. Ngeleshi, learned coJnsel for the respective parties, II I I that in the matter before me, th~re j is no evid¢nce . that the I I I I respondent had received a copy of the: proceedings Jn he High Court, I ' 1 I subject of this application. The subrission by M~. ~geleshi that it I I : I should be inferred that the respoddent had receiyed the same I I ! . I because in the submissions by counsel!/ for the respondent , I in the High I 1 I Court, reference was made to some p~rt of the High dourt judgment, is attractive but with respect, it is untJnable in law.· I I i In my view, and as correctly suramitted by Mr. Bakilana, learned f I I I counsel, it is not enough to make ~n inference that a copy of the I ' . I - l I proceedings was received, it should) be proved that the copy was I' I I infact received. Furthermore, it i~ also to be' ooserved that in I I I I invoking rule 82 to strike out the nofice of appeal, tne provisions of I rule 83 (1) have also to be applied. IThe pre-requisite conditions for I 6 I I I I I I computing the time within which to institute the appe~I are set out I under rule 83 (1). I I I I I I I I I From my reading of rule 83 (1), it is plain that tHe appeal is to I ' I .I I be instituted within 60 days of filing the notice of appeaL I However, if I ,, I the letter to the Registrar, High Court, applying for a copy of the I I ' I I proceedings is sent to the respondent, the time, c~rtified by the . I ' I I Registrar as necessary for the preparation and deliv~ry: of the copy of I I I proceedings shall be excluded in computing the ti~e to institute the I I appeal. In this case, since the writing of the lett~r ¢f 25th August, I I 2004 to the Registrar applying for a copy of the proC::eedings which I I I was copied to the respondent, inordinate though it is, the respondent I I I has not been supplied with the copy of the proceedings . .1 I ., I I ., I In the circumstances, it can ha~dly be said that :the appeal has I I .i I not been instituted within the time, prescribed und~r rule 83 (1). I I Therefore, it cannot be established when the time· st~rted running in I I computing the 60 days in which to institute the appeal from the date I r of the notice of appeal. It seems to me that the application may well I I I I have been instituted prematurely. I I I I 7 I In more or less similar circumstances, an applictation of this I I I nature was dismissed by this Court in Foreign Mission Board of I I ' I the Southern Baptist Convention (supra). In ~hat case, an I I I application to strike out the notice of appeal was : made. The I respondent had filed a notice of appeal and had ,applied for a certified copy of the proceedings jt the High :co,Grt. Due to inordinate delay on the part of the High Court to furnish the copy of I I the proceedings the respondent had not for long :instituted the appeal. Hence the application to sttike out the notice of appeal. Dismissing the application, the cou~ through Mustafa, J.A (as he I then was) stated: Since the inordinate delay in furnishin~ a certified copy of the proc~edings of the ~igh I . : Court cannot be blamed on the respondent no cause of action, existed o~ his part to bar !him instituting his appeal. In another case, namely Transcontinental Forwarders (supra) the Court dismissed a similat application .. Iii that case the applicant applied to have the notice Jf appeal struck but for failure to I ' I ' 8 take an essential step, namely to institute the appeal contrary to rule 83 (1) of the Court Rule, 1979. It was contended by the applicant that the appeal should have been instituted within 60 days of the date the notice of appeal was lodged. It was however, not disputed that the respondent had not _been furnished with a copy of the proceedings for which he had applied to the Registrar of the High Court and was copied to the applicant. Dismissing the application, the Court held inter alia: That the present respondent, who had applied to the Registry for a copy of the proceedings sought to be appealed against and had not been furnished with .any, had complied with the rules by copying the letter to the relevant parties, there was no legal provisions requiring him to keep reminding the Registry to forward the proceedings and once rule 83 was complied with the. intending applicant was home and dry. (emphasis supplied) In similar vein, in the instant case, I am of the settled view that no ground has been established for striking out the notice of appeal. I find no merit in the second reason advanced that the respondent merely sat back without any follow up action after lodging the notice 9 .1 of appeal. This is so, because the respondent having copied the letter applying for a copy of the proceedings in the High Court to the applicant in compliance with rule 83 (1), there is no legal obligation for the respondent to keep reminding the Registrar of the matter. This however, is far from condoning the inordinate delay on the part of the Court administration in furnishing the copy of proceedings for which the respondent had applied long before. Such delay attributed to the Court, is to say the least, most undesirable and must be deprecated. On the other hand, I think the situation would be different if it transpired that the respondent had not applied to the Registrar for a copy of the proceedings. In that situation, the application for striking out the notice of appeal would be properly founded. The reason is that the respondent would have failed to take an essential step towards the institution of the appeal within 60 days of the notice of appeal. This would clearly be in violation of rule 83 (1). By failing to apply for the copy of the proceedings whose copy of the letter of application is to be served on the applicant, the 10 ' I I I I ...., I respondent would not in such circumrtances be enti~led to take I advantage of the proviso to rule 83(1) i~I computing the time in which I • : ' • I to institute the appeal. Here, this/ was not the case. i The I ' I j . I I circumstances of this case are markedly I different from those in I I I I I Asmin Rashid v Boko Omari (1997) TLR 146 ,in which no I1 . : application for a copy of the proceeding s had been mad~ and nothing I , , ,: I I . else was done after filing the notice 9f appeal. The /application· to l I I I • strike out the notice of appeal was a~lowed resulting; in the notice I .. I ' ' I I 1 being struckout. ,i I I I I ' For the foregoing reasons, I am; increasingly ,sa~isfied that the I ! I , applicant has failed to show on a b~lance of probabilities that the I . : .I · I respondent has failed to take essential steps in terms of rules 82 and I , j . : 83 (1) to warrant the Court to invo~e the provision~ of rule 84 as I I I urged by Mr. Ngeleshi, learned cou~sel for the appl;icant. On the j I I ' I contrary, I am of the considered :view that on :the facts and · . I I : I I I circumstances of the case, notwithstanding I the inordinate delay on . I . i the part of the Registrar in furnisltiing the certified copy of the proceedings, the respondent has comblied the require/nent of the law under rule 83 (1). 11 ' I I I I I I I I ',,I I I , I ii I : I ll ' I . : : I In the event, the application is disrtjissed with costs.; I l I I I I I ·l I I I I r day of Nov¢mper, 2007 . DATED at DAR ES SALAAM this 12r., I j I lI I 1 I 11 I j ' : ,I I D.Z. LUBUV~ : : JUSTICE Of APPEAL : I certify that this is a true copy of ~e original. : j l I : I) I I I ,I I : I 1 ' : I I ;i l 'I .I l .I I I ~,. •c. I I ,,.,---..., oi l ,' I I II I I I I I I I I I ! I I I I I I •✓iGM NYIKA ' I I • I I I -TY REGISTRAR ! I I ,Y · 1 ! I I I ,i I l i I I I I I ,\ I l ' I I I I I lI I I I I I l ! I 1 \ l l l ll I l