lalago cotton ginney oil mills co limited vs the loans advances realization trust lart 2004 tzca 48 20 january 2004

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LUBUVA, 3.A., MROSO, J.A., And N^EfeLA, J j g f CIVIL APPEAL NO. 51 OF 2002 BETWEEN LALAGO COTTON GINNERY AND OIL MILLS COMPANY LIMITED ............... ............. APPELLANT AND THE LOANS AND ADVANCES ;R£ALIZATIOM,TR.UST (LART) ________ _. . . . . RESPOND’EN T' (Appeal from the Judgment and Decree of the LART Loans Recovery Tribunal at Dar es Salaam) (Msoffe, J.~) dated the 12th day of June, 2002 in Tribunal Case No. 13 of 2001 RULING OF THE COURT NSEKELA, J.A.: When this appeal came for hearing Dr. Tenga and Mr. Mnzava, learned advocates for the respondent, raised a preliminary objection notice of which had been given in terms of Rule 100 of the Court Rules. The complaint by Mr. Mnzava was to the effect that the Notice of Appeal filed by the appellant offended Rule 76 (1) of the Court Rules which requires that such a Notice of Appeal should be 2 lodged with the Registrar of the High Court and that under Rule 76 (6), it should substantially comply with FdrmlD of tfPTFfet Schedule* to the Court Rules. The impugned Notice of Appeal was not signed, by the Registrar of the High Court and this rendered it invalid. In support of his submission the learned advocate cited two decisions of this Court, Atlantic Electric Ltd. v. Morogoro Region •!GbopBiaiiwa'~UTi:ioia?';'('19S4-)ri,tdv/ (.19-93)- TLR .12;.-and Blankets Manufacturers Ltd. v. OTTU on behalf of Milianzi & Others (CAT) Civil Appeal No. 64 of 2000 (unreported). On his part, Mr. Rweyongeza, learned advocate for. the appellant, forcefully submitted that under Rule 15 of the Court Rules, there is no requirement that the Notice of Appeal must be signed by the Registrar of the High Court, but that the. Registrar should cause the document lodged in the Registry to be endorsed. He added that the word "sign" had not been specifically used in both Rules 15. and 76 (1). In addition, the learned advocate submitted that the absence of the Registrar's signature was a technical error which was "harmless" as he put it, and the Court could cure it under Article 107A (2) (e) of the Constitution as amended by Act No. 3 of 2000. 3 However, Mr. Rweyongeza was very candid in conceding that the Notice of Appeal was signed by a person other thar7#ie*Registra'r of* the High Court. Despite this, he was of the view that this is a fit case in which the Court should step in and invoke Rule 3 of the Court Rules in order to fill a gap occasioned by the absence of Rules applicable to the situation at hand. In reply to Mr. Rweyongeza's submission, Dr. Tenga submitted that the decisions of this Court have been consistent since Atlantic's case that Form D of the First Schedule to the Court Rules must be substantially complied with. Dr, Tenga however shared the views of his learned friend, that the Court should entertain this appeal under Rule 3 of the Court Rules. This preliminary objection has caused us considerable anxiety. It is not the usual objection that had come before this Court seeking to invalidate of a Notice of Appeal since this appeal emanates from a decision of the LART Loans Recovery Tribunal (the Tribunal) established under the Loans and Advances Realization Trust Act, 4 1991 (LART Act). Section 4 (1) of the Appellate Jurisdiction Act, 1979 provides as follows - "4 (1) The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and from subordinate courts with extended jurisdiction." The Court Rules, 1979 made under-the Appellate Jurisdiction Act govern the procedure for appeals from the High Court and subordinate courts with extended jurisdiction to this Court. At the time when the Appellate Jurisdiction Act, 1979 and Rules made thereunder were enacted, the LART Act, 1991 was not in our statute books. More importantly however, section 20 (1) of the LART Act, 1991 at that time did not provide for appeals to this Court from decisions of the LART Tribunal whose decisions were final. The LART Act, 1991 was however amended by Act No. 6 of 1994. Section 20 (1) as amended, now provides - "20 (1) A judgment or order of the Tribunal on any matter before it shall not be final; and shall be challenged in the Court of Appeal." 5 The LART Act, 1991 as amended, now provides for a right of I t - - i appeal from decisions of the Tribunal to 'th is Court. Inadvertently, the Appellate Jurisdiction Act, 1979 was not amended so as to include in section 4 (1) appeals from the LART Tribunal. A possible alternative legislative route would have been to incorporate the Court Rules to .govern appeals from decisions of the Tribunal in the_IART Act itself, but this was not* done. It is therefore clear to us that the Court Rules do not as yet provide for .appeals from decisions of the LART Tribunal. The Registrar of the LART Tribunal before whom the impugned Notice of Appeal was lodged is not the Registrar of the High Court envisaged under Rule 76 (1) of the Court Rules. Having said that however, we cannot turn a blind eye to Article 13 (6) (a) of the Constitution. The right to appeal to a higher court or tribunal is a constitutional right. I t would be wrong in principle to deny the appellant the right to appeal to the highest court of the land against the decision of the LART Tribunal simply because Parliament in enacting section 20 (1) of the LART Act, 1991 as amended, did not provide for procedures applicable for appeals to this Court. What is 6 missing as it were, is a bridge connecting decisions of the Tribunal wiffi the GcMrt. Needless to say, the Registrar of the^RS* Tribunal is.-* not the same person as the Registrar of the High Court under Rule 76 (1). In the circumstances, we are inclined to agree with Mr. Rweyongeza and Dr. Tenga, learned advocates, that this is a fit case in which to invoke the provisions of Rule 3 (2) (a) of the Court Rules wh ich-.provides - "3 (2) Where it is necessary to make an order for the purposes o f - (a) dealing with any matter for which no provision is made by these Rules or any other written law; the Court may, on application or on its own motion, give directions as to the procedure to be adopted or make any other order when it considers necessary." As stated before, section 20 (1) of the LART Act, 1991 as amended, provides for appeals to this Court. In order to construct a bridge linking the Court with the decisions of the LART Tribunal, we would invoke Rule 3 (2) (a) above and direct that the Court Rules, 1979 shall apply mutatis mutandis to apneafe frorrflSfeefeions of-the* LART Tribunal. This is not the end of the matter. It will be recalled that Mr. Mnzava's complaint was non-compliance with Rule 76 (1) and (6) read together with Form. D of the First Schedule of the Court Rules, in ■that the Notice" of Appeal was not signed by the- Registrar. In this case, Mr. Mnzava contended that even if it is taken that reference to the Registrar should be Registrar of the LART Tribunal still the provisions of Rule 76 (1) and (6) were not complied with. This is because the person who signed the Notice of Appeal was not the said Registrar, but some other undisclosed person, Mr. Rweyongeza had an answer to this. He was of the view that under Rule 15 of the Court Rules, there was no requirement for the Registrar to sign the Notice of Appeal. The function of the Registrar was to cause it to be endorsed. This is an attractive argument but only recently, this Court had occasion to construe Rules 15 and 76 in Civil Appeal No. 29 of 2002 between Tanzania Revenue Authority and Al Naeem Enterprises Ltd. (unreported). The complaint here was to the 8 effect that both the notice of appeal and the memorandum of appeal were not endorsed by the designated officfalstunder^eHgourt- Rures.: This Court stated in part as under: "It is our considered opinion that Rule 15 is a general rule for lodging any document. However, as for the lodging of a notice of appeal, there is a specific rule, that is, Rule 76." (emphasis supplied) Thus a Notice of Appeal must be lodged in accordance with the provisions of Rule 76. For what it is worth, Rule 15 is in Part II - General Administrative and Procedural Provisions" and Rule 76 is in Part V "Appeal in Civil Matters". The Notice of Appeal was not signed by the Registrar of the LART Tribunal but by someone else on behalf of the Registrar. T h is Court has consistently held that such Notices of Appeal are invalid, (see: (CAT) Civil Appeal No. 62 of 1999 William Loitiame v. Asheri Naftali; Civil Appeal No. 8 of 2001 Jackson Reuben Maro v. Hubert Sebastian andBlankets Manufacturers Ltd v. OTTU on behalf of Miilanzi and Others Civil Appeal No. 64 of 2000 (both unreported). In the event, and for the above reasons, the Notice of Appeal incompetent. It is struck out with costs. J. A. MROSO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. ( s. a:~n. w a m b u ra ) SENIOR DEPUTY REGISTRAR