maneno mengi limited others vs farida said nyamachumbe another 2003 tzca 20 10 december 2003

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (CORAM: RAMADHANI, 3.A. LUBUVA, 3.A., And MUNUO, 3.A.^ CIVIL APPEAL NO. 45 OF 2003 BETWEEN 1. MANENO MENGI LIMITED......................................... I st APPELLANT 2. VERENA KNIPPER........................................................2 nd APPELLANT 3. LARS JOHANSSON....................................................... 3 rd APPELLANT 4. DOMINIC DE W AAL..................................................... 4™ APPELLANT AND 1. FARIDA SAID NYAMACHUMBE.................................1st RESPONDENT 2. THE REGISTRAR OF COMPANIES............................2 nd RESPONDENT (Appeal from the Judgment of the High Court for Zanzibar at Vuga) (Dourado, 3.) dated the 19Ul day of 3uly, 2002 in Misc. Civil Cause No. 1 of 2001 RULING LUBUVA, 3.A.: In High Court Miscellaneous Civil Cause No. 1 of 2001, the respondent, Farida Saidi Nyamachumbe, petitioned for the winding up of the company, Maneno Mengi Limited. She was one of the three other directors of the company, namely the second, third and fourth appellants. In the petition, the ground advanced for the winding up of the company was that the first respondent's directorship was illegally terminated by the second, third and fourth appellants. The learned judge apparently accepted this ground but he declined to order for the winding up of the company. The appellants were ordered to pay the respondent a total of U$ 13,700 com pensation and allowances. The appellants were aggrieved, hence the appeal to this Court. In this appeal, the appellants were represented by Mr. Nassoro, learned advocate. At the com m encem ent of hearing of the appeal, a preliminary objection on behalf of the respondent was raised notice of which had been filed under rule 100. In support of the prelim inary objection, three grounds were advanced. First, that the appeal is time barred, second, that the second certificate of delay of 8th July, 2003 is incompetent as it was issued after the first certificate o f 20th June, 2003 and third, that the record of appeal is wanting for not including the address of service of the parties. Grounds one and two were argued together. Mr. Mbwezeleni and Mnkonje addressed the Court in turns. The thrust of their submission on these grounds was that the appeal instituted on 9.7.2003 was out of time. In terms of the provisions of rule 83 (1) an appeal shall be instituted within sixty days of the date when the notice of appeal was lodged. In this case, if the tim e certified in the certificate o f delay o f 8.6.2003 as necessary for the preparation of the copy of proceedings and delivery of the copy to the appellant is excluded, in the absence of any extension of time, the appeal should have been lodged at the latest by 13.5.2003. That is within the period of 60 days from 14.3.2003 when the appellant was supplied with a copy of the proceedings. The second certificate of delay w hich purported to extend the time in which to institute the appeal is of no legal consequence because the Registrar does not have the power to do so. Mr. Mbwezeleni and Mr. Mnkonje, learned advocates appeared for the first respondent and Mr. Jadi Simai, Assistant Registrar of Documents, represented the Registrar of Companies, the second respondent. Mr. Jadi Simai, did not wish to address the Court. He left it for Mr. Nassoro to address the Court on the legal issue raised in the prelim inary objection. Mr; Nassoro ardently maintained that if the tim e is computed on the basis of the second certificate of delay of 8lh July, 2003, the appeal was tim eously instituted on 9.7.2003. He- urged that as counsel for the first respondent, he diligently pursued the matter from the very beginning until the second certificate of delay of 8.7.2003 was issued. According to him, the second certificate was the valid one because with its issuance the first certificate of 20.6.2003, was cancelled. He also said that from the beginning when he applied for a copy of the proceedings, he had made it clear to the Registrar that the copy of proceedings was required for purposes o f appealing. As such, he said it is common knowledge to the registrar w hat documents are required under rule 89 (1\ to be contained in a record of appeal. He blamed the Registrar for not supplying a copy o f the drawn order of the decree together with the copy of the proceedings and judgm ent on 14.3.2003, until the Registrar was reminded by letter of 11.6.2003. As to why he did not follow up the matter soon after receiving a copy of the proceedings on 14.3.2003, Mr. Nassoro maintained that he was constantly reminding the Registrar either by letters or by sending som eone from his office. The institution of appeals is provided for under rule 83 (1) of the Court Rules, 1979. It provides: 83 (1) - Subject to the provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged - (a) - (b) - (c) - (d) - Save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired to appeal, there shall, in com puting the time within which the appeal is to be instituted be excluded such time as may certified by the Registrar o f the High Court as having been required for the preparation and delivery of the copy of the appellant. In this case, it is not disputed that a copy of the proceedings was received on 14.3.2003. In that situation and as correctly subm itted by Mnkonje, from this date, the period of 60 days within which the appeal should have been instituted expired on 13.5.2003. W e agree with Mr. Mnkonje that there cannot be two certificates concurrently applicable in respect of the same matter. In this case, the certificate of 8.6.2003 was the valid one because the second certificate of 8.7.2003 was of no legal consequence. It seems to us that the second certificate of 8.7.2003 issued by the Registrar upon the request by Mr. Nassoro by letter of 11.6.2003 amounted to extending the time in which to file the appeal. This, the Registrar had no power to do. It is the Court which has the power to extend the tim e in which to institute the appeal. Furthermore, the Registrar was also wrong in issuing a second certificate when the first one had not been withdrawn. If the intention was to withdraw the first certificate, then the Registrar should have indicated so when the second certificate was issued. In the circumstances, and as already observed, there is no gainsaying that the tim e expired on 13.5.2003. It follows therefore that from the tim e when Mr. Nassoro applied for the drawn order of the decree on 11.6.2003, the matter was already time barred. His plea that he had diligently been following the matter v:th the Registrar or that it was the mistake of the Registrar in not supplying a copy of the decree is also of no avail. The Registrar supplied docum ents which were asked for, the drawn order of the decree was not requested for until 11.6.2003. So, the Registrar cannot be blamed for not supplying a document which was not asked for. On the other hand, if Mr. Nassoro had exercised a modicum of diligence, he would have discovered that a drawn order of the decree was not included soon after 14.3.2003 when a copy of the proceedings was received. Had he done so he would have taken necessary steps to rectify the position before the expiry of 60 days by seeking extension of tim e from the Court. As happened in this case, the appeal is clearly tim e barred in terms of rule 83 (1) apparently because of counsel's failure to take action in time. It is now settled that an advocate's lack of diligence and inaction is no ground for circum venting the d e a r provisions of the rules. This ground alone is sufficient to sustain the pre':minary objection. However, we wish to briefly touch, on the third ground in which Mr. Nassoro raised a rather interesting point in his subm ission in reply to the preliminary objection. On ground three, it was the submission of Mr. Mnkonje that the appeal was incom petent because the m andatory provisions of Rule 89 (1) were not complied with. He stated that under Rule 89 (1) (b) the record of appeal shall contain a statem ent showing the address for service of the respondent. In this case, he further contended that the record did not contain a statem ent of the address of the respondents and as a result hearing of the appeal had to be adjourned because the second respondent had not been served. 89 (1) for furnishing the statem ent of address in the record. ’ W e find no merit in this submission by Mr. Nassoro regarding the form at o f the statem ent of the address for service on the respondent. This is so because rules 79 and 89 read toaether with 10 form at is clearly spelled out. Otherwise we need not be delayed in dealing with the fact that rule 89 (1) (b) was breached. It is an aspect which Mr. Nassoro conceded. The issue is the effect of such non-compliance with the rule in the circum stances of the case. Mr. Mnkonje for the first respondent was firm ly of the view that as the record of appeal did not contain a statem ent of the address; for the sccond respondent, the appeal was rendered incompetent. According to him the requirements of rule 89 (1) (b) are mandatory because the word "shall" is used in the rule. Suffice it for us to observe that not in every situation that an irregularity or non-compliance with a rule renders the appeal incom petent sim ply because the word "shall" is used in the rule. As held by a Single Judge of this Court in VIP Engineering and Marketing Limited v Said Salim Bakhressa Limited, Civil Application No. 47 of 1996 (unreported) irregularities or non- com pliance which do not go to the root or substance of the matter can be overlooked provided there is substantial com pliance with the rule read as a whole and no prejudice is occasioned. In this case J i having regard to the fact that the respondents were served with the memorandum and record of appeal in terms of rule 90 (1), we do not think that in the circum stances of the case, failure to furnish the statem ent of address in the record was fatal to the appeal and that prejudice was occasioned to the respondents. ' s ,'> Finally, we wish to observe on what the appellant is expected to do in order to com ply with -rule-79 when the respondent does not respond to the notice of appeal. In the instant case, as the respondents had not furnished full and sufficient address for service in response to the notice of appeal, the record should have shown the last known address, namely the address used in the notice of appeal. This again, as already shown was not done. So, in this regard, th e re was non-com pliance with the rule which, nonetheless we have held was not in the circumstances of the case fatal to the appeal. All in all therefore, for the foregoing reasons we are satisfied that ground one of the preliminary objection is well founded, the appeal was instituted out of time, it is incompetent. The prelim inary objection is sustained and the notice of appeal is struck out under rule 82 with costs. R ES SALAAM this 10th day of December, 2003. co A.S.L. RAMADHANI JUSTICE OF APPEAL D. Z. LUBUVA JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. ( F. L. K. WAMBALI ) DEPUTY REGISTRAR