managing director total tanzania ltd vs said kabango others 2011 tzhc 2132 18 march 2011

IN THE HIGH COURT OF TANZANIA AT TANGA (DC) CIVIL APPEAL NO. 24 OF 2007 [Originating from Employment civil case no.37 of 2001 of TANGA District Court] THE MANAGING DIRECTOR I TOTAL TANZANIA LTD fc.............................APPELLANT VERSUS 1. SAID KABANGO 2. IDDI SHABANI RESPONDENTS 3. GEORGE MGAYA 4. HASHIMU RAMADHANI Date o f last order: 11/3/2011 Date o f Ruling: 18/3/2011 RULING Teemba, 3; The appellant, Managing Director of Total Tanzania Limited, being aggrieved by and dissatisfied with the whole decision of the District Court of Tanga in Employment Civil Case No.37 of 2001, filed his appeal by way of memorandum of appeal challenging the said decision on the following grounds:- 1. That the learned trial Magistrate erred in law and fact in declining to hold that by suing the Managing Director of Total Tanzania Limited the Respondents sued a wrong party. . 2. That the learned trial Magistrate erred in law and fact in holding that the Respondents were employed on contracts of service and not on contracts for service. 3. That the learned trial Magistrate erred in law and fact in holding that the Respondents worked overtime and that they were entitled to be paid overtime as prayed. 4. That the learned trial Magistrate erred in iaw and fact in ordering that the Respondents be paid 0.06 discount per month on annuities. When the respondents were served with the copy of the memorandum of appeal, they filed a notice of Preliminary Objection couched thus:- That the memorandum o f appeal is hopelessly time barred. At the hearing of the appeal before me, the appellant was advocated by Mr. Akaro whereas, the respondents appeared in person. Both parties agreed to argue the Preliminary objection by way of written submission. In their submission, the respondents stated that the appeal had to be filed by the appellant within fourty five days from the date when the copies of f judgment and decree were supplied to him. They went on to submit that the appellant was supplied with the copies of judgment and decree on 8th October, 2007 and his memorandum of appeal was filed and admitted by the High Court District Registrar at Tanga on 11th October, 2010 . The respondents reiterated that since the appellant filed his memorandum of appeal after three years from the date when the copies of judgment and decree were supplied to him, such delay is contrary to Rules 1, 2 and 9 of Order XXXIX of the Civil Procedure Code Cap.33 R.E. 2002 and the provisions of item 2 of part 11 of the schedule to the Law of Limitation Act, Cap.89 R.E. 2002 which provide for the Limitation period for appealing. In reply, Mr. Akaro, advocate for the appellant blamed the respondents for not framing their preliminary objection properly. He submitted that their preliminary objection ought to reflect that it is the appeal of the appellant which is hopelessly time barred and not the memorandum of appeal. He went on to submit that the submission by the respondents on the fact that the memorandum of appeal was filed on 11th October 2010 is pure misconception of the law. He stated that the exchequer receipt No.28796113 dated 22nd November, 2007 evidences the actual day when the memorandum of appeal was received and admitted by the High Court at Tanga District Registry. He insisted that the appeal was within time as the copy of judgment was supplied on 8th October, 2007 and the appeal was filed on 22nd November, 2007 which is the period within the time prescribed by item 2 of part II of the schedule to the law of Limitation Act, Cap.89 R.E. 2002. He argued this court to dismiss the preliminary objections for lack of merit. In rejoinder, the respondent insisted that the appeal was admitted on 11th October, 2010 when the District Registrar endorsed/signed it. They also stated that they were surprised as to why the appellant did not respond when the purported appeal was not endorsed and or signed by the District Registrar on 22nd November, 2007 when the exchequer receipt was paid. In conclusion, the respondents prayed for dismissal of the appeal with costs. I have read and considered dispassionately the submissions filed by the parties. The only issue to determine is whether or not the appeal was instituted by the appellant within fourty five days as required by the law. The guiding provision on the procedure of presenting and admitting an appeal in the High Court is Order XXXIX Rule 9 of the Civil Procedure Code, Cap.33 R.E. 2002 which reads:- "Where a memorandum of appeal is admitted, the court or the proper officer o f the court shall endorse thereon the date o f presentation and shall register the appeal in a book to be known as the register o f appeal and kept for the purpose." In view of the above provision of law, the memorandum of appeal filed by the appellant shows that it was presented and signed by the Registry officer on 22nd November, 2007. The respondents' fear is clearly noted from the wording of their submission. To clear the fear, I personally decided to peruse the record in this Registry. The (DC) Civil Appeal Register book indicates, at page 138, that this appeal was registered on 22nd November 2007. As correctly submitted by Mr. Akaro, a quick arithmetic establishes that the appeal in dispute was filed within fouty-five days from the date the copy of judgment was supplied. I am therefore satisfied that the memorandum of appeal was presented for filing within the legal time. To conclude, I find this Preliminary objection devoid of merit. It is accordingly dismissed. Each party to bear own costs. R.A. TEEMBA, J. 18/3/2011 18/3/2011 Coram: R.A. Teemba, J; Appellant: Mr. Akaro Respodnents: All present C/C Sarah, o * r '.■ Cpijrt:- The R u lin g qelivered today in the presence of parties. Mr. AkafSr^'We^pray for a hearing date. Respondent:-1 prefer to argue the appeal by way of written submission Mr. Akaro:-1 have no objection. Order:- Submissions by Mr. Akaro to be filed by 8/4/2011. - Respondents submissions by 29/4/2011. - Rejoinder, if any, be filed 6/5/2011. - Mention 12/5/2011. R.A. TEEMBA, 3 . 18/3/2011