NA

IN THE COURT OF !J??AL Of TAN7ANLQ AT DAR ES SALP.AM (CORA!i: !A1iADHANI J... LUBUV..\, And LUGAKINGIRA, J,i.) a r--- CIVIL APEAL NO. 101 OF 1998 BETJEEN 1 • THE HIM I;TER F. LABO R AND YOUTH DEVELOPMENT APPELLANTS 2, SHIRIKA LA USAFIRI DAB ES SALAAN AND GASPAR SWAI AND 67 OTHERS RESPONDENTS (Appeal from the Ruling and Decree of the HighCourt of Tanzania at Dar es Salaam) 3- 1 • dated 11th December, 1 9 97 in Misc. Civil Case No. 29 of 1995 BULING When this appeal came on for hearing, Prof. Issa Shivji who appeared for the respondents raised preliminary objections comprised in two notices. The first or original notice was lodged way back on 14.1.99 by the former counsel for the respondents, Mr. Ngasala, the second or additional notice was lodged by Prof. Shivji on 8.6.2001. After Prof. Shivji had submitted on both notices counsel for the appellants, Mr. Lyirno, gave us to understand that he had not had the opportunity to prepare a response to the additional notice but was prepared to respond, to the original notice. We allowed him to do so and this ruling is based on that one. The original notice of objection comprises of two parts, namely, that the appeal is time-barred for not complying with Rule 83 (2) of the Court Rules, and that the record of appeal offends Rules 10 (i) and (5) and 90 (1) and (2) We concede that the second — 2- pavt. particularly ncn..coznpliance with Rule 90 (1) and (2), is not without importance, but we prefer to base our decision on the first part. It is necessary for that purpose to set out briefly the I4growd to the he.ction. The respondantm are frrnx' s.nploeee. of the second appUant, hirika la TJsafiri Dar es Salaan Limited. In duly 1992 the second Pc-Lant dlre4 the zVapondBnta r.dundant. The action of the second appellant was upheld by the Minister fr Lour and Youth Development, the first appellant, in a decisin dated 8.2.95. The aggrid by that decision and applied to the High Court for an odar o( .c.rti mL t-e-4m=dL the came. and an or'der of a1dav.4el1ing. the jJident.e rei'istat ement In their emy11G1tL The application was granted by the High Court in a ruling delivered on 11012.97, - On 17.11.98, almost a year 1aer, Mr. Lyimo lodged a notice of appeal against the ruling and followed this up by instituting the appeal on 21,12.98. Accor.irzg t'e u1 76 (2) notit of apeal h.a ay the decision against which it iw intended to appeal and according to Rule 83 (1) the appeal has to be instituted within sixty days of the date when the notice of appeal was lodged. Where the intending appellant has applied for a copy of the proceedings in the High Court within thirty days of the decision against which it is intended to appeal, there is excluded in computing the time within which to institute the appeal the time taken by the High Court to prepare and deliver the copy of proceedings. In accordance with Rule 83 (2) this exclusion is available only where the application for a copy of the proceedings is made in writing and a copy of it is sent to the respondent. -3- In view of the above background and position, Prof. Shivji argued that the appeal was time-barred, it having been instituted nearly a year after 17.12.97. An extension of time was not granted by the High Court to lodge the notice of appeal, there was no letter applying for a copy of the proceedings, there was also no certificate of delay 'v the Registrar of the High Court, In terms of Rule 83 (2) 9 therefore, the appellants could not rely on the exception to sub-rule (1). Prof. Shivji accordingly prayed that the appeal be struck out with costs, Mr. Lyimo contended in reply that the appeal was instituted in time. He pointed out that notice of appeal was lodged on 17.11.98, and the appeal was instituted on 21.12.98, only thirty-four days after the notice of appeal was lodged. He submitted that in those circumstances the appellants did not require any exclusion of time. When it was pointed out to him that the notice of appeal was lodged well out of time, he changed track and stated that he was aware that the notice was out of time and that he had applied for and obtained an extension of time. He referred to an extracted order in the main record of appeal but it turned out that the Order related to an extension of time to apply for leave to appeal and the grant of leave by the High Court. We need to go a little back to te up the story about extension of time. On the morning of the hearing Mr. Lyimo lodged in the registry a supplementary record of appeal containing papers evidencing an application for extension of time to file notice of appeal. While arguing the additional preliminary objection, Prof. Shivji objected to the supplementary record and invited the Court to reject it. We heard brief arguments on the issue. Prof. Shivji pointed out that the supplementary record was filed after service on Mr Q Lyimo of the two preliminary objections. He submitted that this was an attempt to defeat the bases of the objections and charged that it was tantamount to playing around with.jhe rules and practices of the Court. Mr. Lyimo replied that there was no time limit for lodging a supplementary record and referred to Rule 92 (3) which provides that the appellant may lodge a supplementary record at any time His construction of that rule was that it applied even after an objection had been taken. After hearing the arguments we upheld Prof Shivji and promised to give our reasons in this ruling. Where a preliminary objection to an appeal has been lodged in accordance with Rule 100, it is in our view, improper for the appellant to seek to defeat the objection by acts designed to remove its basis If such practice were allowed, Rule 100 would lose purpose and meaning and decency of proceedings would be in jeopardy. This is not the first time that the Court has had to deal with a situation of this kind. A somewhat similar problem arose in A.10C.C. v. DaniasKavishe, Civil Appeal No0 34 of 1988, and the question was whether a notice of motion to save an appeal could properly be taken up in answer to another notice of motion which had sought to have that appeal struck out as being incompetent The Court gave a negative answer to the question. The decision was followed in D.P.mbiav.TransportEquipmentLtd /19927 TLR 246. In similar vein is the decision in jTaliby0 KiweniMushi, P997 TLR 108. We agree with Mr. Lyimo that uncthr Rule 92 (3) an appellant may at any time lodge a supplementary record but we construe the expression Uat any time to mean at any time before objection is taken. Upon objection being taken, time is up, so to speak, and a supplementary record c.wnot then be lodged as of right but with leave of the Court. Any ether interpretation would lead to chaos and ebøurdity. We were satisfied that the supplementary record was lodged to pre-empt and defeat the preliminary objections already served on Mr. Lyirno, and so we rejected it, For the avoidance of doubts, however, it should go on record that the supplementary record, even if it were properly lodged, would not have assieted the appellants, it did not contain any deoinionextending the time to lodge the nctce of appeal. In short, there was no valid notice of appeal, it having been lodged out of time without extension, It follows that the appeal was also out of time; indeed it is more correct to say the appeal was vitiated as there can be no appeal without a valid notice in the first place. We uphold the preliminary objection and strike out the appeal with costs. The appellants, if they so wis), may go back to the High Court and *tart all over, beginxing with an application for extaion of time to fi,c notice of appeal. DAat SALAP.N this day of 2001. JUSTICE OF APPEAL JUSTICOF APPEAL JiCE OF APPEAL