lucy signally lyambilo vs e 1460 cpl stanlaus paul and another 2023 tzhc 16452 31 march 2023

THE UNITED REPUBLIC OF TANZAIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

MBEYA DISTRICT REGISTRY

AT MBEYA CIVIL APPEAL NO. 5 OF 2022 (Originating from the Resident Magistrate's Court of Song we at Vwawa in Civil Case No. 4 of 2019.) LUCY SIGNALLY LYAMBILO......................................................... APPELLANT

VERSUS E.1460 CPL STAN LAUS PAUL............................................. 1st RESPONDENT BRITAN INSURANCE CO.1TD............................................2nd RESPONDENT

RULING Date of last order: 28th March, 2023 Date of judgment: 31st March, 2023 NGUNYALE, J. In the Resident Magistrate's Court of Songwe the respondent sued the appellant in Civil Case No. 4 of 2019 for the tort of negligence following the accident which was caused by the appellant's motor vehicle driven by Erickson Stennford Mwankena. The respondent claimed to be paid specific damage for medical expenses incurred at the tune of Ts. 40,000,000/=, general damages at Tsh. 20,000,000/=, interests on the amount claimed and costs of the suit. The appellant refuted the claim. She obtained leave and third-party notice was presented to the insurance company. The third party did not file written statement of defence. After full trial the Magistrate found both defendants liable and ordered them to pay specific damage of Tsh. 50,000/=, general damage of Tsh. 20,000,000/=, Interest of 7% was given from the date of judgment to satisfaction of the decree and costs of the suit. The above decision aggrieved the appellant who has knocked the door of this court with ten grounds of appeal, for the reasons to be apparent later they will not be reproduced here. When the appeal was called on for hearing both parties had legal representation, Mr. Moses Mwampashe and Ms Beatrice Rukamilwa learned counsels appeared for the appellant and respondent respectively. Disposal of the appeal took the form of

written submission. Both parties dutifully complied with the scheduling order. For purpose of this ruling their submission will not be recited. When I sat to compose the judgment, upon going through the records of appeal I noted some of the issues which had impact on merits of the appeal; Z. Whether the appeal is not time barred / 2 ii. Whether the third-party notice was filed by the appellant as against the second respondent Hi. Whether it was right to treat the second respondent as the co - defendant The proceedings were re-opened. Same counsels appeared for the parties. Mr. Mwampashe for the appellant was the first to submit, he stated that they filed the appeal within ninety days after being issued with a decree on 22/2/2023. And per section 19(2) of the Law of Limitation Act [Cap 89 R: E 2019] "the LLA" time used to wait for copy of judgment and decree is excluded. He cited the case of Bukoba Municipal Council vs New Metro Merchandise, Civil Appeal No. 374 of 2021 to support the contention. He contended that he was given the copy of decree on 22/2/2022 and lodged the appeal on 3/3/2020, the time from 22/2/2021 to 22/2/2022 was to be excluded hence the appeal was filed within the time. He added that per order XXXIX Rule 1(1) of the Civil Procedure Code [Cap 33 R: E 2019], "the CPC" he could not have lodged the competent appeal in absence of the decree and judgment. He said

that they wrote a letter requesting the documents on 26/7/2021 and reminder letters on 24/8/2021 and 5/10/2021. On the second issue he submitted that after he obtained leave to present a third party notice, the appellant filed it on 30/3/2021. For the third issue he conceded that it was wrong for the Magistrate to treat the third party as the co-defendant. He cited the case of January Nshimba vs the Registered Trustees of Daughters of Mary Immaculata & Collaborators, Civil Appeal No. 127 of 2018 to support the argument. On part of the respondent Ms. Beatrice on the first issue submitted that the appeal was not filed within time, because on his part he was supplied with certified copies on the same date the judgment was delivered and there was no letter that the appellant requested the documents. She added that the appellant wrote the first letter on 24/8/2021 after time had elapsed and the second on 5/10/2021, both letters being reminder and there was no evidence when the first letter was presented to the court and not served to them. She went on to submit that although section 19(2) of the LLA provide automatic exclusion of time but there must be proof that the documents was requested. The case of Alex Senkoro & 4 Others vs Eliambuya Lyimo, Civil Appeal No. 16 of 2017 (Ureported) was cited to support the argument. She added that the appellant had failed to prove that

he requested the said documents because on their part were availed with it on the same day when it was pronounced. She cited the case of Mwanaashe Seheye vs TPC, Civil Appeal No. 37 of 2003. Regarding serving third party notice she submitted the appellant filed the same. 4 As for treating third party as the co-defendant, she submitted that the trial court misdirected when it so treated. In rejoinder counsel for the appellant stated that they filed the letter on 26/7/2021 three days after the judgment and kept making follow up until on 22/2/2022 when they obtained it. He added that if the decree was signed on the date of judgment the trial court might have issued two decrees with different dates. He distinguished the case of Mwanaasha(supra) because it concerned the Court of Appeal Rules which makes mandatory to serve notice to the respondent which is not the case here. I have considered the submission of the parties; the first issue is based on the fact that the judgment of the trial court was delivered on 22/7/2021 and the present appeal lodged on 3/3/2022. The Law at the schedule to the LLA Part II requires the appeal under the CPC to be filed within ninety days. The LLA under section 19(2) excludes time spent in obtaining copies of judgment and decree; the exclusion is automatic provided that the intending appellant had requested it in writings. There are bodies of

cases reinforcing this position. In the case of Valerie Mcgivern vs Salim Farkrudin Balal, Civil Appeal No. 386 f 2019 (Unreported) the court stated; 5 'Suffice to say, section 19(2) of LLA and the holding in the decision cited above reinforce the principle that computation of the period of limitation prescribed for an appeal, is reckoned from the day on which the impugned judgment is pronounced the appellant obtains a copy of the decree or order appealed by excluding the time spent in obtaining such decree or order. However, it must be understood that section 19(2) of LLA can only apply if the intended appellant made a written request for the supply of the requisite copies for the purpose of an appeal.' In Methusela Enoka vs National Microfinance Bank Ltd, Civil Appeal No. 266 of 2019 (Unreported) the court stated; 'The terms the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed and the time requisite for obtaining a copy of the judgment on which it is founded shall be excluded presupposes that the intended appellant or applicant has requested for • those documents and v@s not sleeping on his rights. It goes without saying therefore that, the exclusion clause only benefits those who have applied for the said copy and not those who were sleeping on their rights.' and in Alex Senkoro and Others v. Eliambuya Lyimo, Civil

Appeal No. 16 of 2017 (unreported) also cited by the respondent the court emphasised that; the exclusion is automatic as long as there is proof on the record of the dates of the critical events for the reckoning of the prescribed limitation period. For the purpose of section 19 (2) and (3) of the Act, these dates are the date of the impugned decision, the date on which a copy of the decree or judgment was requested and the date of the supply of the requested document.' From the submission counsels are in agreement with the above law. They are locked horns on whether the appellant wrote letters requesting the judgment and decree to the trial court. Perusing the records of the trial court I have not been able to find any letter from the appellant requesting to be supplied with the documents which could have enabled her to lodge the competent appeal in accordance with Order XXXIX rule 1 of the CPC. During submission Mr. Mwampashe brought two reminder letters; one dated 26/7/2021 showing to have been received by the trial court on 24/8/2021 and the other dated 5/10/2021 which was received by the court on the same date. Ms. Rukamilwa attacked these letters for not being served to them. She contended that the first letter for which the reminder was wrote is not seen in records. From the submission it emerges that the authenticity of the two reminder letters which was not served to

the respondent is questionable. The court record contains no letter from the appellant requesting the documents even the reminder letters are not in the court file. Although counsel for the appellant was right to say the requirement to serve the letters requesting the document to the opposite party is applicable to the Court of Appeal only as required by the Court of Appeal Rules, the fact that the respondent doubts its authenticity cannot be taken lightly in absence of explanation to the contrary. First the reminder letters are not in the court file and has only been brought to the attention of the court during submission. There is stamp of the court with dates but there is no 7 certification to that effect. Counsel for the appellant did not give any explanation as to who stamped the letters from the resident Magistrate Curt. Secondly it was not served to respondent despite the said letters being clear that it was to be served to the defendant. There is no explanation, if the letter was to be served to defendants why did the appellant not do the same. Connected with the above counsel for the respondent submitted that on their part they obtained on the same date although there is no proof to that effect. While counsel for the appellant argued that it was issued on 22/2/2022 and on 3/3/2022, then, the appeal was well within ninety days. Indeed, the decree show that it was issued

on 22/2/2022 but in absence of clear evidence that the appellant requested to be supplied with it from the court, the ninety days cannot be reckoned from the date it was issued rather from the date of judgment. The case of Bukoba Municipal Council(supra) relied by the appellant's counsel is distinguishable with the present one because in the former the court declined to entertain the issue whether the appellant had requested the document because it was not raised in the High Court and it was the issue of fact which could not be entertained during appeal. In this case the letters brought by the appellant its authenticity is wanting. In the end the first issue is answered in affirmative. /? 8 The second issue will not detain me, upon going through the records, it is evident that the appellant applied for and was granted leave to present third party notice through Misc. Civil Application No. 5 of 2020 and on 30/3/2022 the third-party notice was filed. The second issue is answered in negative. Pertaining to the third issue of treating the third party as the co - defendant both parties are in agreement that the court erroneously treated as such. The third party procedure under Order I rule 14(1) of the CPC is based on the principle of contribution and/or indemnity upon the defendant being found liable to the plaintiff. Gouging from the principle the remedy as against the third party

is not of the plaintiff, but the right of the defendant to indemnity from the third party. The third party has right to contest the claim of the plaintiff against the defendant or the defendant against him by filing written statement of defence. In Husnain M. Murji v. Abdulrahim A. Salum t/a Abdulrahim Enterprises, Civil Appeal No. 6 of 2012 (Unreported), the court quoted with approval a commentary On third procedure by the learned author, Mulla, Code of Civil Procedure, Vol II, 15th Ed, that; 'The policy behind this rule is that the defendant who has got a claim against a third party need not be drive into a fresh suit against the third party to put the indemnity in his favour into operation or to establish his entitlement to contribution from the third party. The claim and rights 9 il interest of the defendant and the third party have to be decided in the third party proceedings.' In this appeal after third party notice being filed, she did not appear or filed defence. Under that circumstances the court was supposed to continue with the main suit without making any direction. After the judgment being delivered then procedures under rule 19 (1) of Order I of the CPC was to be adopted that is, having entered judgment under rule 19(l)(a) of Order I of the CPC the appellant could apply ex-parte for judgment against the third party. Upon proof the court could pass the claimed

reliefs or upon completion of the main suit the trial court enter judgment against the third party as per rule 19(l)(b) Order I of the CPC. In this appeal what is in record is that on 28/4/2020 counsel for the plaintiff addressed the court that he had no communication with the advocate for the insurance company and prayed for more time to make follow up if they were interested in the suit. The trial court found that 21 days within which they were supposed to filed their defence had elapsed and could no longer wait for them. Then followed several adjournments before mediation was marked failed, framing of issues took off and hearing proceeded. In its judgment the trial court found both defendants liable as per order contained in the judgment and reflected in the decree. 10 even if it is assumed to be proper, there was no order to proceed ex-parte against the third party. The effect of the orders that both defendants were liable was to make the third party a co - defendant to the main suit. To make him a co-defendant was an error. In January Nshimba's case (supra) the court was confronted with the situation akin to the present one, having considered the matter it held that; the failure by the trial court to ascertain as to whether the defendant had a bona fide claim of indemnification or contribution against the third parties, led the trial court to misdirect itself when it

erroneously referred the third parties as defendants in its judgment.' [See Metropolitan Tanzania Insurance Co. Ltd vs Frank Hamadi Pilla, Civil Appeal No. 191 of 2018 (Unreported). In the matter at hand the appellant adduced no evidence in regard to her rights of indemnity or contribution against the third party which reinforces that third party could not have been found liable. Besides, the issues framed and evaluation of evidence concerned only the appellant and not the third party. There was no decree passed or any other order made as to the liability of the third parties. From the above, I hold that it was wrong to treat the third party as the defendant to the main suit and the order declaring both defendants liable while there was only one defendant to ii the suit had the effect. Making the third party a party to the suit while she was not was a fatal defect. The third issue is answered in affirmative. In the foregoing I find that there was non compliance to the third-party procedure. Therefore, I hereby proceed to quash and set aside the proceedings from 28/4/2021 immediately after Ms Rukamilwa had informed the trial court that she wanted more time to communicate with the advocate of insurance onwards. The resultant judgment of the trial court is also quashed and decree set aside. I direct the records to be remitted to the Resident Magistrate's court of Songwe for it to be heard and determine according to law and procedure before another Magistrate with competent jurisdiction. No order as to costs since the issue was Judge .of March 2023 in presence of Mr. Moses Mwampashe for the appellant and the respondent represented by Ms. 12