20050614 TZHC Bukoba

. ,,.._ 4 ( ( ' ".' '\ ( :i IN THE HIGH COURT TANZANIA ATBUKOBA (PC) CIVIL APPEAL NO.17 OF 2003 (From the decision of civil appeal No. 7912001 of Bukoba District cour~ 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,J. 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 52 nd 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 Gregory Raphael V Pastory Rwehabula {PC) Civil Appeal No. ,30/2000 High Court {Bukoba Registry) where Mr. Rweyemamu raised similar question, (2) 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 judgment? And Mr. Rweyemamu in that case cited Salim Rashid V Hadiia d/o Abdallah {1967) HCD No. 154 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) of the Law of Limitation, 1971. The Section reads: 46. Where a period of limitation for any proceedings is prescribed by any other written law, then, unless the contrary intention appears in such written law, and subject to the provisions of section 43, the provisions of this Act shall apply as if such period of limitation had been prescribed by this Act. And section 43 (f) provides: · This Act shall not apply to:- ,. (3) (f) any proceedings for which a period of limitation is prescribed by any other written law, save to extent provided for in section 46. The combination of the two sections quoted supra are to this effect: the Law of 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) of the MCA, 1984 clearly state the time limitfor one to appeal i.e. 30 days. That time is deemed to have been provided for by the Law of Limitation, 1971. The two sections doesnot assist Mr. Rweyemamu. I now turn to S. 19 (2) of the said Act. S 19 (2) reads. 19 (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review ofjudgment the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy o.f decree or order I ' appealed.from or sought to be reviewed, shall be excluded (Underscoring mine). The section speaks about the time of obtaining copy of a decree or order after · delivery ofjudgment shall be excluded. The section doesnot talk about judgment itself. The copy ofjudgment is not one of them - expression unius exclusio alterius est. But the crux of the matter in my view is:- Is a copy ofjudgment a condition precedent infilling an appeal in this court on matters originating from primary courts? This is turn bring us as to what is a petition of appeal and what are · its contents. The Magistrate Courts Act, 1984 is silent. 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 answers:- it both defines what is a petition of appeal and spell out their contents. Rule 2 defines what is a petition of appeal it says:- (5) ."the petition of appeal" include the record of the grounds of appeal where the same have been stated orally and recorded by the district court under the provisions of paragraph (b) of the proviso to subsection (3) of section 20 of the Act. And what constitute a petition of appeal, this is found under Rule 4 of the said Rules. The rule reads:- (4) (1) Every petition of appeal to a district court from a decision or order for a primary court and every petition of appeal to the High Court from a decision or order of a district court in the exercise of its appellate or revisionaljurisdiction shall set out precisely and under district heads numbered consecutively the ground of objection to the decision or order appealed against and shall be signed by the appellant or his agent. (2) Every petition of appeal to the High Court shall be filed in duplicate. (6) As it can be seen, attachment of a certified copy ofjudgment is not one of the contents of the petition of appeal as it used to be in appeal originating from district court and courts of resident magistrate as is provided under 0.39.1 of the civil procedure code, 1966 which law is not . applicable in primary courts. Failure to attach memorandum ofappeal along with copy of decree and judgment renders the appeal incompetent. Attachment of copies of decree and judgment is a condition precedent in instituting appeals originating from district courts and courts of resident magistrate. So it is proper to apply section 19 (2) of the Law of Limitation, 1971 for cases orginating from those courts. Similarly that is also a condition precedent in instituting civil appeals orginating from this court to the court ofAppeal of Tanzania. (See Rule 89 (1) of Tanzania Court ofAppeal Rules, 1979) But the position is different in instituting appeals in this court on matters originating from primary courts. Attachment with copies of decree or judgment along with petition of appeal is not a legal requirement. The filing process is complete when petition of appeal is instituted upon payment of requisite court fees. If attachment with copies of judgment, 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 of Salim Rashid supra. The case orginates from primary court. The facts are not very clear. It would appeal Salum (plaintiff) was dissatisfied with the decision of the trial court and he intended to appeal. But he couldnot appeal within 30 days because he was awaiting for a copy ofjudgment and proceedings. Said, J (as he then was) observed I quote: \' (8) "Until (plaintiff) had received such a copy the period.of thirty days limitation couldnot be said to have started to run against him. Normally the time requisite for obtaining or an order appealed against should be excluded in computing the period of 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 Magistrates' Court Act cap 53. Cap 537 had similar provisions as the current law viz MCA, 1984. S. 25 (1) (b) of the currectMCA, 1984 is similar in wording with S. 21 (1) (b) of the repealed cap 537. Back to the holding in Salum case. First, that decision is not binding upon this .... court. Second,for what I have said above I quite differ with that holding. It is my considered view that is not the law. ~ ,( .l ~. a - • (9) In sum, I amfar from being persuaded that the appeal was fi(ed in time. The \ appeal is time barred as time started to run after the date of the decision of the district court. The appeal is dismissed with costs. B.M.Luanda JUDGE" 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 time barred. The same is d missed with costs. Judgment delivered Appellant - Present 1st Respondent-Absent (Dead) 2nd Respondent - Present. ATBUKOBA 14/6/2005