20120224 TZCA Arusha

. ' IN THE COURT OF APPEAL OF TANZANIA ATARUSHA I CIVIL APPEAL NO. 66 OF 2011 (CORAM: MUNUO, J.A., KILEO. J.A., And· MANDIA, J.A.) JUMA MTUNGIREHE ............................ ~ ....................................... APPELLANT . · 'VERSUS '(,~~ .' ~· THE BOARD OF TRUSTEES OF · ft : f:f . TANGANYIKA NATIONAL PARKS t/a ,,i TANZANIA NATIONAL PARKS. ................................................. RESPONDENT I (Appeal from the Judgment an~ decree of the High Court of Tanzania a.,t_ )\ru.sha ) · 1Y \ l, ?: ~'.1 ..• tjt~ ~ {Sheikh/'.l.) th dated the 28 ~c1y·of May, 2008 in Civil Appeal No. 16 of 2004 RULING OF THE COURT 23 rd & 29th February, 2012 MUNUO, l.A: I The appellant, Juma Mtu1;1girehe, lodged the present appeal to ·.1 i ' • ' ' . Iv· ,?'· I I challenge the decision of Sheik~-;Df :in?9Jvil Appeal no. 16 of 2004 in the .· L :. ~. . , , i High Court of Arusha which arose from, ,Civil Case No. 41 of 1998 in the '' i District Court of Arusha. The District Court had ordered that the I respondent ex-employer reinstates the appellant to his job as a driver. The 1 respondent successfully appealed ag ainst the District Court decision. I. F J ., • ·,t, t? -. 1 , 'I Dissatisfied with the decision of the High Court, the appellant preferred this appeal. The respondent was represented by Mr. Ezra Mwaluko, learned advocate. The appellant was unrepresented. ~l .r >.; ''I!:~ Learned counsel for the respondent filed a preliminary objection to the effect that the present appea,I is time barred under Rule 90 (1) of the .~·, J~' :: Tanzania Court of Appeal Rulesi,..200~::t;:: The judgment of the High Court was delivered on the 20th June, 2008, ·¢ounsel for the respondent pointed out, saying the same is reflected at page 128 of the record of appeal. The appellant thereafter filed a Notice of.Appeal per page 175 of the record. The Notice of Appeal was lodged on the 25th June, 2008 within time. The appellant also timeously applied,.for a copy of the proceedings as evidenced :, ~' ;.~1.: by the letter to the registrar on the 25th June, 2008 and duly served the respondent's advocate on the 26th June, 2008. The registrar issued a )' ~ ); ' ~..\_\~ I t ' certificate of delay discounting ·s'.93rd~yi;'.spent for preparing the copies of :. <' proceedings, judgment and decree. The appellant admitted that he got the copies of proceedings, judgment and decree on the 3rd December, 2008 which means the period of limitation started running oo,i'. . ":( the '4tti 1~; December, 2008 counsel for the 2 ~ "1 respondent submitted. He further ob~erved that the appeal was filed on the 9th February, 2011 after a delay of 68 days instead of being filed within the statutory 60 days stipulated under the provision of Rule 90 (10 of the Tanzania Court of Appeal Rule_s,.' 2009. ' . " {~:. . !, 'f . •1 ' Counsel for the respondent contended that by computation of time, the appeal is time barred by eight days so it should be struck out with costs. Despite the above computation oftime, the appellant insisted that he filed the appeal within time so the Court should proceed and determine the appeal on merit. The issue before us is whether the present appeal is time barred. ,;,,1 . ,,~ 11 ·4~ t '\' We spent considerable time 'counting actual days from the 3RD December, 2010 when the appellant obtained copies of proceedings, judgment and decree to the time. ;,·?;. ~.e filed ~-i~· . /~,1! f his appeal on the 9 February, \ ,·: th 2011 as evidenced by the Exchequer·, Receipt in the record and the registrar's stamp on the memorandum of appeal which show that the appeal was instituted on the 9th February, 2011. The computation of time from the 4th December, 2010 to 9th February, 2011, by arithmetic, total 66 days. f , ~•I' ·;- ,'< II,, ., 3 ' 1·•· l. Counsel for the respondent:.' lisled rnumerous authorities pertaining to t~(• :{,1 ,•·~ l • '( .; .~£~ ' , appeals which had been struck out with· costs because they were filed after the expiry of the prescribed sixty days period of limitation. The institution of appeals is provided for under the provisions of Rule 90 of the Tanzania Court of Appe~I rules, 2009 which states inter alia; :t'-.: T. ''90 (1) subject to the provisions olkule 12~ an appeal shall ( be instituted by lodging in the appropriate registry, within sixty days ofti{IJl dctte when the notice of :.r-. ,'r•' :,, ,f.'.;fl 1 appeal was lodged with- a) a memorandum of appeal in quintuplicate; b) the record of appeal in quintuplicate; c) security for costs of the appeal, save that where an application for a copy of fhe proceedings in the High Court has been madJ within sixty days of the date of the decision against which it is desired to appeal, there shall,::Jt1il:tomputing the time within i' 't : . ' .~ ·: ; ~;,~ . . which the appeal is to be instituted be excluded such time as may be certified by the Registrar of 4 the High Court as having been required for the preparation and delivery of that copy to the /I appellant 2. An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for ' . · . I)'~ :'.d} : -, 1 the copy was in writing qnd1a copy of it was served on the Respondent 3. The period limited by sub-rule (1) for the institution of appeal shall apply to appeals in the exercise of its bankruptcy jurisdiction. " I In this case, the appeal should have been filed within a 60 days period of limitation under Rule 90 (1) (a) of the Tanzania Court of Appeal ..rti ',J..~ '! Rules, 2009. The sixty days perfbd,.dfrfiilitation ended on the 1st February, I, 2011. The present appeal was filed after a delay of eight days beyond the sixty days period stipulated under Rule 90 (1) (a) of Court Rules, 2009. In this regard the appeal was filed out of time without seeking extension of . time under Rule 10 of the Court Rules, 2009. We had the advantage of>~eru~ing the authorities listed by counsel for the respondent. In Cresthale (U.K) Ltd. Versus Bondeni Seeds 5 . I Ltd. (2000) TLR 1 where th~:: appell,ant lodged an appeal out of the :ii: }t \'.•. \' I :.1}( prescribed statutory period of sixty days .without first seeking extension of time, the Court held; '~·-··· The appellant for reasons unknown to the Court, did not find it necessary to ask the Court to :j l ,t bring the provisions Jr Ru/J 'a of the Rules into play. It has no one to blame but itself if that provision proves, as it does, t(),/Jt{(atal to its (the appellant's) ,:,(,f ', !! ,"\;~;., appeal. The respondent, It is true did not apply under Rule 82 of the Rules to have the Notice of Appeal struck out, but it was not obliged to do so. No amount of inaction on the part of the respondent would give th~ appellant the right to file ·., :' , \i its·appeal after the p}escrfbed period of sixty days. We uphold the preliminary objection and strike out the purported appeal,;/~•1, 1 ·. ,, ir/ J, 1., 1i, , :l:, The Court took the same detision' in the cases of Hamisi Luga Kitegile versus Loans and Advanc¢s Realization Trust Civil Appeal No. 17 of 1999 (CAT at Dar es Salaam) (unreported); Maneno 6 I 1 Mengi Ltd an:d 3 others versus Far;ida saidi Nyamachumbe and The Registrar of Companies (2004) rLR 391 and Kantibhai M. Patel ":.i, . t; I .. ' : f versus Dahyabhai F. Mistry (2003) TtR 437. I . . ~l: .\~-->I .: In the light of the above w.e, are. :·~atisfied that the present appeal is . ,, . ; . I ~ 1 . time barred by eight days in that ''it .was filed eight days beyond the i \ .. I . prescribed period of sixty days provided1for under Rule 90 (1) (a) of the I Tanzania Court of Appeal Rules, 200~. We uphold the preliminary objection and strike out the appeal with dosts . . ,. .\I DATED at Arusha this 24 ·:·6ay .of ,~ebruary, 2012. th E. N. MUNUO JUSTICE OF APPEAL ~~tJ:'-'1) ~:. /,.:-/~;~, ., E.A.iKl(EO JUSTICE OF APPEAL I W. S. MANDIA JUSTICE OF APPEAL . ,i I ,I I certify that this is a true copy of the original. I ~ ~PP l.,,,.,,,.: 0 'I"~--- --- ~ ~ . 1/~ ,, 1~ I"'! ,- ~u +-- -·------ ·E··v: MKWIZU DEPUTY REGISTRAR COURT OF APPEAL ~;: i,. :. ' . j., f'..t··,.' .·J~\ l: 7 ' ' : ·1·· , ·' '' ~- ' .I