murtaza mohamed raza virani vs mehboob hassanali versi 2013 tzca 378 20 november 2013

m THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL NO. 122 OF 2011 (CORAM: RUTAKANGWA, 3.A., LUANDA, 3.A., And MANPIA. 3J U MURTAZA MOHAMED RAZA VIRANI ..................... APPELLANT VERSUS M EH BOOB HASSANALI VERSI ............................ RESPONDENT Appeal from the judgment and decree of the High Court of Tanzania Commercial Division at Dar es Saiaam fKimare, 3.) Dated 4th day of September, 2003 in Commercial Case No. 281 of 2002 RULING OF THE COURT 23ld October, & 20th November, 2013 RUTAKANGWA, 3.A.: The appellant was aggrieved by the judgment and decree dated 4th September, 2003 of the High Court sitting at Dar es Salaam. He lodged a notice of appeal. On 8th September, 2003, in accordance with the requirements of Rule 83 of the Tanzania Court of Appeal Rules, 1979 (the old Rules), he wrote to the Registrar of the High Court requesting to be supplied with certified copies of the proceedings, judgment and decree. After obtaining these documents he instituted Civil Appeal No. 31 of 2004 (the 1st appeal) in this Court. Unfortunately for the appellant, the 1st appeal was struck out on 12th December, 2004 on account of being supported by an invalid copy of the decree. The said decree had been signed by the Registrar. That was not the fault of the appellant. Desirous of pursuing his appeal, the appellant instituted Civil Appeal No. 145 of 2006 (the 2nd appeal). The latter appeal was also struck out for being incompetent on account of lack of a valid notice of appeal. Undeterred, the appellant made a third attempt. He lodged Civil Appeal No. 26 of 2009 (the third appeal). This third appeal, met the same fate as its predecessors. It, too, was struck out as it was held to be incompetent, for being supported by a wrongly dated decree. We have found ourselves unable to refrain from observing, albeit in passing, that by the time this appeal was instituted, it was already settled law that an appeal based on a wrongly dated decree is incompetent. See, for instance, Abdalla Rashid Abdalla v. Sululu Kidogo Amour & Said Issa said, Civil Appeal No. 94 of 2006 and Jovin Mutagwaba & 85 Others v Geita Gold Mining Ltd, Civii Appeal No. 109 of 2005 (both unreported). Following the striking out of the third appeal, the appellant sought and obtained from the High Court, on 6/9/2011, an order extending the time within which to lodge a notice of appeal out of time. He was given fourteen days to do so. The notice of appeal was lodged on 20th September, 2011. Thereafter this fourth appeal was instituted on 2nd December, 2011 through Mr. Sylvester Shayo, learned advocate. When this appeal was called on for hearing, Mr. Eustace Rwebangira, learned advocate for the respondent, rose to argue three points of preliminary objection notice of which he had previously lodged. The Respondent resisted the preliminary objection. The three points of objection are briefly to the effect that:- a) the appeal has been instituted out of time, b) the certificate of delay incorporated in the record of appeal is irregular, and c) the first four grounds of appeal are misconceived in law. Prior to the hearing date, counsel for both sides had each lodged written submissions in support of each one's position on the points of 3 objection raised. At the hearing, each counsel adopted his written submissions in elaboration thereof. Regarding the first point of objection, Mr. Rwebangira strongly contended that the appellant was strictly required to institute the appeal, within 60 days following the lodging of the notice of appeal, that is by 19th November, 2011. As this appeal was instituted on 2nd December, 2011, he stressed, it was, unarguably, lodged out of time. It was his further contention, that the appellant cannot benefit from the exception of Rule 90(1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) because he had not "applied for copy of the proceedings in the High Court within thirty days of the date of the decision". By the "decision", Mr. Rwebangira had in mind, we believe, the one granting extension of time to lodge the notice of appeal out of time, as the earlier application dated 8/9/2003 "had died a natural death after the appeal was struck out in previous appeals," as he put it. Responding in rebuttal, Mr. Shayo, impressed upon us that the first point of objection is legally misconceived as the letter of 8/9/2003 survived the striking out of the first three abortive appeals, as he was yet to be supplied with a valid copy of the decree he had applied for. This valid copy, he insisted, was supplied to him on 17th November, 2011 and the appeal instituted in time on 2nd December, 2011. He accordingly urged us to dismiss this particular point of objection. The second point of objection is premised on the only "Certificate of Delay" found at page 133 of the record of appeal. Since we have found this document to be very crucial in the determination of the competence or otherwise of this appeal, we have found it instructive to reproduce in full, its most relevant part. It reads thus:- "CERTIFICATE OF DELAY UNDER RULE 90(1) OF THE COURT OF APPEAL RULES, 2009 This is to certify that the period from September, 2011 when Mr. Sylvester Shayo & Company, advocate for the appellants herein filed a Notice o f appeal and applied for copy o f decree to the 17th November, 2011 when the endorsed exhibits were supplied to Sylvester Shayo & Company, advocates are to be excluded for such days were require (sic) for the preparation and delivery o f a properly endorsed decree. Given under my hand and the seal o f this Court l / h day o f November, 2011. Yours, Registrar HIGH COURT OF TANZANIA COMMERCIAL DIVISION" Relying on this so called "Certificate o f Delay " Mr. Rwebangira argued forcefully that this "Certificate" is irregular as the "notice o f appeal was lodged on 2(fh September, 2011 and not September, 2011". He went on to contend that the letter appearing at page 145 of the record of appeal, applying for a properly dated decree was lodged on 17/11/2011 and not -6/11/2011 as shown in the "certificate" On account of these patent defects, he concluded that no weight should be attached to it. While conceding the mentioned errors on the face of the certificate of delay, Mr. Shayo strongly contended that the same are non-consequential as they do not affect the validity of the certificate. They never occasioned any prejudice or injustice to anybody and as such they can as well be safely ignored, he stressed, in order to achieve substantive justice. For this reason, he strongly urged us to dismiss the second point of objection. After objectively considering the submissions of both counsel on these two points of objection, we have found it worthwhile to resolve them first before canvassing the arguments raised in relation to the third point, if that need will arise. As the two points appear to be inter-connected, we shall discuss them together. There is no dispute that the appellant was aggrieved by the High Court decision and decree dated 4/9/2003. As already indicated herein, he lodged a notice of appeal and applied to be supplied with copies of the same and proceedings in the suit for appeal purposes, on 8/9/2003. Under Rule 83(1) of the old Rules, which were in operation then, he was supposed to institute his appeal within sixty days after lodging the notice of appeal. The said Rule 83(1) read as follows:- "83 (1) Subject to the provisions o f Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within sixty days o f the date when the notice o f appeal was iodged- (a) a memorandum o f appeal, in quintupiicate; i (b) the record o f appeal, in quintuplicate; (c) the prescribed fees, and (d) security for the costs o f the appeal: save that where an application for a copy o f the proceedings in the High Court has been made within thirty days of the date o f the decision against which it is desired to appeal, there shall in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery o f that copy to the appellant." [Emphasis is ours]. As already shown in this ruling, the appellant had complied with the mandatory requirements of Rule 83(1) of the old Rules. within the prescribed time. Regardless of his glaring negligence in instituting his previous abortive appeals, he was eventually supplied with a copy of a valid decree upon which this appeal is predicated on 17th November, 2011. This is notwithstanding the naked fact that there is no evidence to show that between December, 2006 to 17th December, 2011 the appellant had made any attempt visible or otherwise, to be supplied by the Registrar, with a properly dated copy of the decree appealed from. All the same, all things being equal, we would have had no hesitation in holding forthwith that as the appeal was instituted within fifteen (15) days after obtaining a said copy of the decree which he had applied for within thirty days of the impugned decision, the appeal is not time barred. But on the facts available we have found ourselves constrained to hold otherwise. This is because there is no valid certificate of delay by the Registrar in terms of Rule 90(1) of the Rules to account for the seemingly inordinate delay of eight (8) years. It behoves us to explain why we are saying so. There is no gainsaying that the appellant had timeously applied to the Registrar to be supplied with a copy of the decree for appeal purposes. It is beyond rational argument that the appellant expected to be supplied with a properly signed and dated copy of the decree. This valid copy of the decree was eventually supplied to him on 17th November 2011, his own lapses aside. The appellant, who had complied in time to be supplied with a copy of a valid decree was, therefore, entitled to a certificate of delay, in terms 9 of Rule 90(1) of the Rules, excluding the period from 8th September, 2003 to 17th November, 2011. It was on the latter date when a valid copy was supplied to him. Such a certificate of delay would have indisputably rendered this appeal not time barred. Unfortunately, however, the appellant was supplied with a certificate of delay, the subject of the second point of objection, which contains patent lies as already shown above. This certificate is, unarguably deficient and unacceptable. Instead of returning it to the Registrar for rectification before instituting this appeal, he was satisfied with it and proceeded to institute the appeal. In our settled view, he did so at his own peril, although the law was very much in his favour this time around. We are deliberately saying so because the so called "certificate of delay" on record' does not entitle the appellant to the benefits of the proviso to Rule 90 (1) of the Rules, as the impugned decision was given on 4/9/2003 and this certificate shows that the appellant applied for a copy of the decree on 06/09/2011. With this totally misleading and/or irregular certificate of delay, we hold without any demur, that this appeal was instituted out of time. This is because, as already alluded to above, the certificate of delay on record does not exclude the period between 8/9/2003 and 17/11/2011. In view of the above findings, we uphold the first and second points of preliminary objection, although for reasons totally different from the ones emphatically fronted by Mr. Rwebangira. We accordingly find this fourth appeal to be incompetent and strike it out. We order each party to bear his own costs. It is so ordered. DATED at DAR ES SA1_AAM this 12th day of November, 2013. E.M.K. RUTAKANGWA JUSTICE OF APPEAL B.M. LUANDA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A. A DEPUTY REGISTRAR COURT OF APPEAL 11