19970110 TZCA Dar es Salaam2

. l:L>\_[):_ 7f,, LTo.\c, ~ .,, ~.-.... - - ' ~ J-1NZ1WAS, ,J.i,o, • I ' . And ...._ r Lu.:·.uvA, JoA.) . -- -.. 0 w··· l 1'0::::'11UNN.flJS L1:JANYAWCEA MASE'\ AND 1 ., Dl< o 1:JILLL'\.H f·::J:l'IJA o o O o O o o o o o o o o G· o (Ay1peal from the nulinr_:; of the IIig~ Court of '"Canzania at Mwanza \ r Dated 18th April, 1996 in ihsco Civil Ca·1_1se Noo 15 of 1995 • •- " ...... - - . -........ .-. ' ............. '· _ ................ - .•• w, p ---·"'···•- - - RliLING O:':<' 'i:'T-ifi:: C01ElT \ ~J~~A.: l ~here :i.s before us an agpenl agai..-rist the ruling of the High '-- r ·court (Chipeta, J q) on a mo.tter pertaining to an election petition. '!hen the appeal was called on for l,.earin:~: l•:r., Mwale~ learned coun.sel for the :::-irst :i:·espondent, took a prelii:iin"ry .objection in terms of ! rule 100 of the Court of Appeal i1ules., The objection v·as cased on three grounds., 'rhe first ground in effect a11eges th2.t the notice cf appeal doe,s not c01:iply ,::i.th the ------~~ .~-,,...- ,· requirements of rule 76.(3) of Co1Jrt .. f Ap:::,ca1 Eules a.."ld the for;;1at !-:Jad.e under th0.t rti_le as sei: out in Yoi~m D. of the First ;3chedule The releva"lt portion o:i: rule 76 (3) to the Court of Appe,,.l r:ulcGo ='' \ pr0vides t'..1at :- i~ ~:~_.._,_:r- Every notice •f ap:;:ie2.l shall state wLether it is intended t'o appeEll age.inst tl1e, 1.vl1ole or part 0::1.ly of

thP. decision .. ~ ./2 The a.ppelle.nt I s notice of appeal had simply stated that the intended appeal was agaim:;t the particular ruling of the High Court. Hr~ Mwale vigorously contended that failure to state whether the appeal was against the v-rhole or part only of that ruling was necesso.ri]7 fatal; and in this connection he drew our attention to the use, in the provision, of the word •shall·: which, according to him, made the requirement mandatory .. The appellant is represented tJy Mr. B. t:lakani and '.Ir. Eutaitina, learned advocates., In response to Ilr. Viwale 1 s contention, Mr. :1akani in effect conceded that U1.ere v,as no strict corn:;_:ilie,nce with the provisions of rule 76 (3) but submitted tl:.2.t such non-compliance was 0 not fata.l. We entirely a 6 ree with Hr~ J,1:=t}:ani' s subrnissionc ';!e think timt the use of the \·!Ord ; shall:: does not in every ce.se make the provision m1.:u1datory. \/hette:r;· tte use of that word has such effect will depend on ti:1e circumstances of each caseo For onr part we thirJ.-.: tha.t the word ,:shall:: in rule (3) does not have the effect of making that provision rnand.£.J.tory, nor do we thi..1k that J,arliament can have intended 1 s0. Failure by a. part? to state whether the intencled appea1 is against the w11.ole or part only of the decision does not in any ,✓ay 0 prejudice the opposite sideG hr. Mwale argued the.t he

might have been p:;:·ejudiced or ill-effected by h,::,_ving to examine tl1e whole ruling while th3 appeal was in fact against part only of the ruling, in which case he wasted or mig;.1.t have wast,";d his valu.able time and energy doing unnecessary worko \. i th d,1e respect to counsel, however, we find aot mucl., force in this argument. C,u:c l.mderstanding is that Mrc t:wale started preparing for the appeal seriously only after j receiving the record of appeal including th0 memorandum of appeaL Upon studying the grounds of appeal he was tben able to know the extent of the appeal, in which case if he found that the e.ppeal was a{sainst part only of the ruling he would limit himself accordingly and there was no need to prepare hL:ise1f in respect of the whole ruling. For these reasons we think that the failure to comply strictly with the provisions of rule 76 (3) was not fatal, and if this was the only ground of objection to Uie a-ppeal we would not sustain· the objection, although of course we stress the importance of complying \vith the Rules. 'l'hat ground, therefore fails. Objection was also tal::en that the record of appeal did not -0 ·•')ntain the certificate o·f tl1e .~egistrar as to the exact time that •,ras !'leeessary for the preparation and delivery of the record to the appellant. 1,gain there is little substance in this ground and, indeed, :t<:r. t..;wale argued it

only half heartedly - For, the record at page 82 contains a certificate duly issued by the District Registrar ax1d sho\vinc, inter alia, that on 2.5.96 he received from the appellant's cour:Bel a :.~eqnest for the supply to him of the record of proceedings which was duly supplied on 6~9~96~ and that the period up to this latter date s!:1ould be excluded in computing the time within v1hich to lodge the appeal~ Ue could find nothin."~ wrong with that. 'l1i:1e purpose of the Eegi,strar' ,s certifica.te i1:-, to ensure that an aprellant lodges the record of a:i;ipeal within 60 days of filj_ng his notice of appeal or within 60 days o±' the supply to him of the record of proceedings. t'he record of appeal was lodged in court on l+.11.,96. This was within 60 days frcm 6.9~96 1.vhict, according to tbe District Hegistrar, v:as the date the periocl of limitation started to nm against the appellant. Therefore, this ground o:r objection also fa.ils ... The third and last ground of objection was that the appeal is incompetent becaase the reco:i:-d of appe2.l does not contain the drmm 0r extracted order in appeal, and in support of this ground Hro Mwale cited numerous authorities of this Court and of its predecessori the Court of Appeal for ~~st Africao In response to this submission Mr., Makani concede the non- compliance i1ith rule 89 (1)(h) of the Court of Appeal :Rules wl1ich requires

the record of appeal to include tl1e extracted order but strenuously contended that this did not render the appeal incompetent. In his view su.ch non-compliance was merely a procecl.ura1 or administrative irregularity which rcnder,3 tb.e apr·,:al incomplete and which could be 0 rectified by n:akin,; an 2r,propriat o order for the filino; of a supplementary record. The la.was it now stands is that failure to extract the decree or order in terr~s of rule 89 ( 1) (h) c:md (2) ( v) of the Court of Appeal Rules renders the appeal incompetent, see for inst.a.nee T1:~~-C.omm~sio!..12£ (unreported)... TLe findin,s that an appeal is incompetent has constantly resulted in striking out suc~1 ai•pea1, see for im,tance rl1e National 1 0 (unreported). 'rhere is no roo!Y'. for Hr~ Makani's view that non- extraction of the decree or order is a mere procedural or administrative irregularityo ~·•--·---·-- ------- --~-·- In J\rusha _.__ __ ··-- InternB.tional ._...__ Conference Centre Vo Damas,.. , it was held that such non-compliance 1:1as fundamental and went.t••the root of the mattero Likewise i<r. Makani 1 s effort to u.rge us to grant an order to lodge a SffGJ!:-lementary record of appeal or to invoke rule 3 ooo o/5 and direct a departure from the Rules cannot bear any fruit., 'l'his Court ' adequately considered such submissions in the (~:::,u~~.!::YJ·!.'.::FE.P-E.?!.1~ Conference

Centre case cited above and found thee untenableo r1r. Make.ni cited the recent decision of this Court in the case Noo 38 of 1996 .. There tho Court had occasion to say this:- ·•v:e nsed hovrnver to point out for future guidance, that insufficiency or incompleteness of the record of a.:;ipeal is not a gound for incompetency of an appeal, because such a defect is rectifiable by a.11 appsllant at any staee of the proceedings as provided under sub-rule 3 of rule 92 of the -0 'I'"LYJ.Zania Court of Il.p:peal Ibles, 1979 0 0 o Counsel took the view thrri.: consistent witll this decision non-extraction of the dec:ree or order only constituted a.--i in.sufficiency or in- completeness which did not make the appeal incompetento With great respect, however, we do not agree. FL~st, :it is not a;_:rparent from th.e judgment cited who.t kind of insufficiency or incompleteness the Court was considering or was having in r,1ind because the oJ.leg-:::i.tion of in.suf:f:'j_ci2ncy or incompleteness had been withdrawn by the party rai,sing it before the Court heard arguments 0 on it. However, we D.re of the view that where by reason of non- extraction of the decree or order, as in this case, the appeal is rendered incompetent, tlle issue of insufficiency or incompleteness ~ does not really arise4 ~he position that arises is simply one of non- existence r'lf the a:::•peal. Be-cause insufficiency or

incompleteness connote2 something wb.ch is in existence and which can be improved upon, say by adding to it. But an incompetent appeal is enc which in law did not come into existence although efforts were made to try t• 0 •• ,,/6 bring it into existenceo In such circumstances, therefore, one ' cannot properly talk of there being an insufficient or incomplete appeal which one can improve upon by filing a supplementary record, because in law no appeal came into existence in the first instance; there was only a purported a.ppec1.l, if you 1:Jish., Mr. Makani also relied on rule 27 ( 1) of th{, Elections (Election Petitions) Bu.les, 1971 in his valiant attempt to urge us to overrule the objection. That sub-rule says that':- 27. - (1) Save as is expressly provided to the contrary in these Rules, no petition shall be dismissed for the reason only of non••complie.nce with any of the 0 provisions of those Rules, or for the re~son only of a'1y other procedural irregularity unless the court is of the opinion tlw.t such non-compliance or irregularit~i has resulted or is ljJcely to result into miscarriage of justice.n We have to state at once that the reference to this pro-vision was obviously misconceivedo The 'Sleet ions Rules govern the conduct of election ca.ses when they are before the High Courto ':-Che clear ::: demonstration of this is the fact the word r;eourt• 1 which is used

in 0 the sub-rule is defined in rule 2 to mean the High Court. The prel:iJninary objection before us is based not on a..11.y provision of the Elections Hules but on the provisions of the Court of Appeal.Rules. 'I'he conduct •f the present proceeding before ns, therefore car.not be governed by the Elections I~ules. Of course the Elections Rules would have been relevant if we were dealing w.itb __a_.matter which -had been b_efore -the--:High--Bourt., In I that ca_se we would seek to apply the Elections R-ules in the ;narmer ...•/? (/ 7 that the High Court would have done. But the matter before us i.e .. the preliminary objection is a matter which was not, and could not have been before the High Court. In the circumsta."1.ces, therefore, there could be no room at all for our invoking the Elections Rules in dealing with the prel:ilninary objection. Er. Malaba, lea.rned Senior .State Attorney appearing for }1epublic, the .Second Respondent, rightly supported the objection. In the :resultt and for the reasons set out above, the preliminary objection is sustained. The appeal is incompetent for non... extraction of the order in appeal in t~rrns of rule 89 (1) (h) of the Court of ·Appaal Rules, nnd it is accordingly struck out with costs~ It is now 0 open to th~ a1JPells.nt, if he so wishes, to :institute the appeal a.fresh by ~claking the appropriate application before the High Court. DATI;D at DAR ES SAL.OAJ:J! this 10th day of January, 1997. · R. Ho I\l.SANGA ~~--- .. ..·--·-·...... JUSTICE 01? APPEAL ··- ~ N. S. MNZ,AiJAS

JUSTICE OF APPEAL D. Z. LlJl3UVA I certify tht=-tt this is a true copy of the original~ ........ ------ ........... ....... ·---.... - SENICR DE1'·UTY RBGIS'11fulR --"· ,