20160923 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA DC CIVIL APPEAL NO. 22 OF 2016 MESODET BOARD OF TRUSTEES ................................... APPELLANT VERSUS MWENYEKITI WA JADI NA MILA ZA KABILA LA WAMERU ....................................... RESPONDENT Date of last order: 25/07/2016 Date of ruling: 23/09/2016 RULING MASSENGI, J. / This is a ruling in respect of points of preliminary objection raised by the respondent to the effect that; (i) That, this appeal is hopelessly time barred. (ii) That, this appeal is res judicata since the same appeal has been instituted in this court vide Civil Appeal No. l 1 of 2016 which is pending before Madam Judge Dr. M.M. Opiyo. (iii) That this appeal contravenes Order XXXIX Rule 1 (1) of the Civil Procedure Code [Cap. 33 R.E 2002]. 1 On 25th day of July, 2016 this court ordered the hearing of the preliminary objection to be conducted by way of written submissions. The respondent was ordered to file submission in chief by 09/08/2016, the Appellant to file reply submission by 23/09/2016. Both parties filed their submissions accordingly. Arguing the first point of preliminary objection, the respondent quoted section 3 (1) of the Law of Limitations Act, [Cap 89 R.E 2002] which provides that; "3 (1) Subject to the Provision of this Act; every proceedings described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite therein to the second column, shall be dismissed whether or not limitation has been up as a defence'~ He contended that Part II item 1 of the Schedule to the Law of Limitation Act, Cap 89 indicates that Appeals in the Civil Procedure Code are supposed to be preferred within ninety (90) days. The Judgment in which this Appeal is sought was delivered on 16 December, 2015 and this Appeal was instituted on 8 June 2016. He therefore contended that this Appeal is hopelessly time barred and should be dismissed with costs. To support his argument he referred this court to the case of Tanzania Cotton Marketing Board v COGECOT Cotton Company S.A [2004] TLR 132 in which the Court of Appeal stated that where the time of limitation has not been prescribed, the Law of Limitation Act, [Cap. 89 R.E 2002] applies. 2 Also cited the case of Gregory Rafael v Pastory Rwehabula [2005] TLR 99. In regard to the second point of preliminary objection, the respondent submitted that Memorandum of Appeal indicates that this Appeal emanates from Civil Case No. 74 of 2015 from Arumeru District Court. However, this Court's records show that on 18th March, 2016 the Appellant instituted Civil Appeal No. 11 of 2016 against the same Civil Case No. 74 of 2015 and the Appeals against Civil Case No. 74 of 2015 before this Court on more or less the same grounds and challenging the same judgment. He therefore invited this court to hold that this matter is baseless and intended to waste the precious time of the Court. Submitting on the third point of preliminary objection, he contended that this appeal contravenes Order XXXIX Rule 1 (1) of the Civil Procedure Code [Cap 33. R.E 2002]. He contended that the provision above puts a mandatory requirement that the Memorandum of Appeal shall be accompanied by a copy of the decree appealed from. He argued that this requirement of the law has not been met by this Appeal and therefore invited this court to dismiss this appeal with costs. In support, he referred this court to the case of Livingstone Silay Haru V Collin Fred Temu [2002] TLR 268 and the case of Tanzania Distilleries Ltd v Vitamin Foods Ltd [2000] TLR 15 and Abdallah S. Mkumba V. Mohamed I. Lilame [2001] TLR 326. Therefore, prayed this Appeal be dismissed with costs. 3 In reply, the appellant responding to the first point of preliminary objection submitted that the Appellant filed Appeal No. 53 which was ruled by Hon. S.C. Moshi on 20/05/2016 and the Hon. Judge ruled out on the defects of the Appeal and hold that if the Appellant is interested he should comply with procedures set by the law. This made the Appellants to file and to comply with procedures set by the law, as such this appeal is not time barred as they were supplied with the copy of Judgment on 30/05/2016. Responding to the second point of preliminary objection, he submitted that Civil Appeal No. 11/2016 before Hon. Opiyo Judge was struck out for being incompetent. The appeal was struck out on 14/03/2016 with leave to refile within seven days and the Appellant refilled the matter before seven days and was registered as memorandum of Appeal DC/ Civil Appeal No. 11/2016 on 18/03/2016. The appeal was accompanied with the grounds and challenging the same judgment pronounced by the trial court or District Magistrate. In regard to the third point of preliminary objection, the appellant submitted nothing in substantial countering the preliminary objection, rather he submitted that the Appellant met the requirements of the law. I have gone through the records and considered the submissions of both parties. I would like to state from the beginning that the first point of preliminary objection has merits. I say so basing on the reason that, the records reveal that the ruling of the District Court of Arusha in Civil Case No. 74 of 2015 in which this appeal lie against, was delivered on 4 16/12/2015 while this appeal was filed on 08/06/2016. According to item 1 of Part II of the schedule to the Law of Limitation Act (supra), the limitation period to file appeal of this kind is 90 days. The said law provides that; " An appeal under the Civil Procedure Code where the period of limitation is not otherwise provided for by any written law ................. ninety days" Since the decision of the District Court was delivered on 16/12/2015 and this appeal was filed on 08/06/2016, it means that this appeal was filed after lapse of 170 days since the ruling of the District Court being delivered. The Appellant in his submission stated that they were late to be supplied with copies of judgment as the copy was supplied to them on 30/05/2016; but the records reveals that the said copy of ruling (not judgment) was certified on 21/1/2016 meaning that since that date the said copy was ready for collection. As such, it suggest that since the copy of ruling had been certified since 21/1/2016 then if the Appellant could have bothered to make a follow up before the District court registry he could have got the said copy earlier and he could have filed his appeal on time. It is not the duty of the court to find the party in order to collect a copy of judgment after the same being ready, that duty is of the party. If the Appellant did not bother to make a follow of the copy of ruling soon after the decision being delivered then the court cannot be faulted for negligence of the party after all negligence on part of the party is not and it has never been a defence. Since the copy of ruling was certified on 21/1/2016 it means that the said copy was ready for collection since that 5 . I l I \ date, that is 21/1/2016 and the limitation period starts to run from that I , I date. Computing from 21/1/2016 when a copy of ruling was ready for t collection until 08/06/2016 when this appeal was filed, gives us 138 days ; th ! i11hence this appeal was filed hopelessly ou~ of time and therefore I hereby s~..stain the first point of preliminary objTction. This poi~t of preliminary .,.,objection suffices to dispose of this appeal, and therefo're I accordingly I i I t dismiss this appeal with costs for being filed out of time s~bject to section 3 (1) of the Law of Limitation Act (supra). , Order accordingly. . MASSENGI JUDGE . 1 23/09/2016 I Rul~ delivered in Court this 23 rd day o~ Sept, 2016 in l:he presence of ...........f:tQ.)(.\.&..~.~l✓.\.d ...0.~~.½.g,. ..~............... ,. .......~tVfR...\6.t:.......... ~hl~.ff··~t,~·:~. ~-J:j ..... -~~~ ~- ........ ;--;· .............................,........................i.................. .. ' I F.H. MASSENGI I j I JUDGE ' I I 23/09/2016 6 ' I