leopord rwizandekwe vs verdiana rweyabura another 2005 tzhc 279 14 june 2005

IN THE HIGH COURT TANZANIA AT BUKOBA (P C ) CIVIL APPEAL NO.17 OF 2003 (From the decision o f civil appeal No. 79/2001 ofBukoba District court and original civil case No. 15/98 Gera Primary court) ( Before: G. M. Mussa Esq. HPDM ) LEOPORD RWIZANDEKWE===============APPELLANT VRS VERDIANA RWEYABURA & ANOTHER======RESPONDENTS JUDGMENT LUANDA . The appellant in this PC appeal is appealing against the decision of the first appellate district court. When the appeal was called on for hearing, the court informed the appellant that the appeal is time barred as it was filed on the 52nd day after the date of the judgment. The appellant informed the court that he was awaiting for a copy of judgment. He cited two unnamed cases from the High Court Digest No. 154 of 1967 and No. 106 of 1971. He submitted that time starts to run after getting copy of judgment. I had already dealt with this issue in G reaom Raphael V Pastoru Rwehabula CPC) Civil Appeal No. Z0/2000 High Court CBukoba Reaistru) where Mr. Rweyemamu raised similar question, namely when does time of appeal on matters originating from primary court starts to run? Does time starts to run right away after the date of the decision or after getting a certified copy of judgm ent? And Mr. Rweyemamu in that case cited Salim Rashid V Hadiia d/o Abdallah (i q 6 7 ) H CD No. lzd. which is among the two cases cited by the appellant. In Gregory case I said this, I quote “I start with section 46 and section 43 (f) o f the Law o f Limitation, 1971. The Section reads: 46 Where a period o f limitation fo r any proceedings is prescribed by any other written law, then, unless the contrary intention appears in such written law, and subject to the provisions o f section 43, the provisions o f this A ct shall apply as if such period o f limitation had been prescribed by this Act. And section 43 (f) provides: This A ct shall not apply to:- (f) any proceedings fo r which a period o f limitation is prescribed by any other written law, save to extent provided fo r in section 46. The combination o f the two sections quoted supra are to this effect: the Law o f Limitation, 1971 is not applicable where there is a clear time limit in other written laws and that such other time limit in other written aws are deemed to have been made by this law. In our case S. 25 (1) (b) o f the MCA, 1984 clearly state the time limit fo r one to appeal i.e. 30 days. That time is deemed to have been provided fo r by the Law o f Limitation, 1971. The two sections doesnot assist Mr. Rweyemamu. I now turn to S. 19 (2 ) o f the said Act. S 19 (2) reads. 19 (2) In computing the period o f limitation prescribed fo r an appeal, an application fo r leave to appeal, or an application fo r review o f judgm ent the day on which the judgm ent complained o f was delivered, and the period o f time requisite fo r obtaining a c o m o f decree or order appealed from or sought to be reviewed, shall be excluded (Underscoring mine). The section speaks about the time o f obtaining copy o f a decree or order after delivery o f judgm ent shall be excluded. The section doesnot talk about judgm ent itself The copy o f judgm ent is not one o f them - expression unius exclusio alterius est. But the crux o f the matter in my view is:- Is a copy o f judgm ent a condition precedent in filling an appeal in this court on matters originating from primary courts? This is turn bring us as to what is a petition o f appeal and what are its contents. The Magistrate Courts Act, 1984 is silen t However, the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1963 (GN 312/1964) which is the applicable law when hearing appeals originating from primary courts give us the a n s w e r s i t both defines what is a petition o f appeal and spell out their contents. Rule 2 defines what is a petition o f appeal it says:- “the petition o f appeal” include the record o f the grounds o f appeal where the same have been stated orally and recorded by the district court under the provisions o f paragraph (b) o f the proviso to subsection (3) o f section 20 o f the Act. And what constitute a petition o f appeal, this is fou n d under Rule 4 o f the said Rules. The rule reads:- (4) (1) Every petition o f appeal to a district court from a decision or order fo r a primary court and every petition o f appeal to the High Court from a decision or order o f a district court in the exercise o f its appellate or revisional jurisdiction shall set out precisely and under district heads numbered consecutively the ground o f objection to the decision or order appealed against and shall be signed by the appellant or his agent. (2) Every petition o f appeal to the High Court shall be file d in duplicate. A s it can be seen, attachment o f a certified copy o f judgm ent is not one o f the contents o f the petition o f appeal as it used to be in appeal originating from district court and courts o f resident magistrate as is provided under 0.39.1 o f the civil procedure code, 1966 which law is not applicable in primary courts. Failure to attach memorandum o f appeal along with copy o f decree and judgm ent renders the appeal incompetent. Attachment o f copies o f decree and judgm ent is a condition precedent in instituting appeals originating from district courts and courts o f resident magistrate. So it is proper to apply section 19 (2 ) o f the Law o f Limitation, 1971 fo r cases orginating from those courts. Similarly that is also a condition precedent in instituting civil appeals orginating from this court to the court o f Appeal o f Tanzania. (See Rule 89 (1) o f Tanzania Court o f Appeal Rules, 1979) But the position is different in instituting appeals in this court on matters originating from primary courts. Attachm ent with copies o f decree or judgm ent along with petition o f appeal is not a legal requirement. The filing process is complete when petition o f appeal is instituted upon payment o f requisite court fees. I f attachment with copies o f judgm ent, as said by Mr. Rweyemamu, is a conditio sine qua non in filing (PC) Civil Appeal in this court, I think the Rules i.e. The Civil Procedure (Appeals in Proceedings Originating in Primary Courts) GN.312/1964 would have stated so and in very clear words. The Rules do not impose that requirement. So it is not proper to impose a condition which has no legal backing. Mr. Rweyemamu cited the case o f Salim Rashid supra. The case orginates fro m prim ary court. The facts are not very clear. It would appeal Salum (plaintiff) was dissatisfied with the decision o f the trial court and he intended to appeal. But he couldnot appeal within 30 days because he was awaiting fo r a copy o f judgm ent and proceedings. Said, J (as he then was) observed I quote: “Until (plaintiff) had received such a copy the period o f thirty days limitation couldnot be said to have started to run against him. Normally the time requisite fo r obtaining or an order appealed against should be excluded in computing the period o f thirty days ” This decision was handed down on 2/5/1967. By then the current Magistrates Courts'Act, 1984 was yet to come into existence. The law in use was the M agistrates' Court A ct cap 53. Cap 537 had similar provisions as the current law viz M CA, 1984. S. 25 (1) (b) o f the currect MCA, 1984 is similar in wording with S. 21 (1) (b) o f the repealed cap 537. Back to the holding in Salum case. First, that decision is not binding upon this court. Second, fo r what I have said above I quite differ with that holding. It is my considered view that is not the law. In sum, I am fa r from being persuaded that the appeal was file d in time. The appeal is time barred as time started to run after the date o f the decision o f the district court. The appeal is dismissed with costs. B. M. Luanda JU D G E” Since the matter under discussion has already been dealt with in the above quoted case, I donot see the need of departing from that holding. The appeal is tim ;ed with costs. Judgment delivered Appellant - Present 1st Respondent - Absent (De 2nd Respondent - Present. \ A TB U K O B A 14/6/2005