20050615 TZCA Arusha

IN THE COURT OF APPE,~L OF TANZANIA

AT ARUSHA (CORAM: RAMADHANI, J.A., MROSO, J.A. And NSEKELA, J.A.) CIVIL APPEAL NO. 88 OF 2003

BETWEEN NGORONGORO CONSERVATION AREA AUTHORITY .......... APPELLANT

VERSUS SAMWEL MAEDA ........................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) {Msoffe, J.) dated the 29 th day of March, 2000 ( in Arusha High Court Civil Case No. 18 of 1997

JUDGEMENT OF THE COURT NSEKELA, J.A. The respondent Samwel Maeda, was an employee of the appellant Ngorongoro Conservation Area Authority, on permanent .. and pensionable terms from 1965 up to June, 1993 when he co~pulsorily retired. It was alleged in the plaint that the appellant - subsequently re-engaged the respondent for six months on the same terms and conditions as in his previous employment. The dispute between the parties revolves around· unpaid terminal benefits and 2 t. other benefits upon retirement and 're-engagement during the six months period. The appellant filed its written statement of defence, and a reply thereto was filed by the respondent on the 9.6.1997. Then the Court on the 6.10.1998 framed and recorded the issues and the trial of the case commenced on the 5.11.1998 before Mroso, J. (as he then was). The respondent called three witnesses and closed its case on the same day. The hearing of the case was then scheduled to continue on the 10.2.1999 by which time Mroso, J. (as he then was) had been transferred to another duty station. On the 1.3.1999 the case came before Msoffe, J. (as he then was) and adjournments followed until the 13.12.1999 when the case again came before Msoffe, J. (as he then was). The appellant was absent but the respondent was present. The Court ordered that the hearing of the case .will be··on-the 29.3.2000 and that the

appeliant·should be duly served with notice of hearing. On this adjourned date, the appel,lant was absent though duly served with notice. The respondent then prayed "for judgment as prayed". The learned judge acceded to this prayer, and stated, inter alia - 3 . -' . "For the avoidance of doubt this is a judgment for the plaintiff which conforms with the provisions of Order XVII rule 3 of the Civil Procedure Code, 1966." This is the "judgment" which is being challenged by the appellant in this appeal. The appellant through Mr. Makange, learned advocate, filed three grounds of appeal. The essence of the first two grounds was to the effect that the learned judge wrongly invoked Order XVII rule 3 of the Civil procedure Code (CPC) since he entered judgment without evaluating the evidence before him. The third ground was a complaint against the decree which the learned advocate claimed that it contravened Order XX rule 6(1) of the CPC. When the appeal was called on for hearing, the respondent, Mr. Samwel Maeda, rose to argue a preliminary objection, an objection he had earlier filed under the provisions of rule 100 of the Court Rules, 1979. The respondent, who was unrepresented, claimed that the appeal was incompetent on five grounds, namely - 4 - ;.._ "1. That the record of';appeal has been muddled up and does not comply with the provisions of Rule 89(1) of the Court of Appeal Rules, 1979.

2. That the appellant having been granted leave to file the record of appeal within 20 days from the date of ruling of Honourable Shangwa, J. dated 2nd July, 2003 and the record of appeal having been filed on 11 th November, 2003, this appeal is time barred.

3. That since the Notice of withdrawal of Appeal filed on 16th August, 2001 was not consented to under the provisions of Rule 95(3) of the Tanzania Court of Appeal Rules, 1979, that appeal stands dismissed under Rule 95( 4) of the Tanzania Court of Appeal Rules, 1979 and the present appeal is thus res judicata.

4. That since the appointed time within which to file the appeal ·to the Court of Appeal as per the Order of Honourable 5 Shangwa, J. was twenty days, and since the appellant failed to file the said appeal within that appointed time his notice of appeal should be deemed to have been - withdrawn under Rule 84(a) of the Tanzania Court of Appeal Rules, 1979. .

5. That the Memorandum of Appeal is improperly before the this Honourable Court as the same was endorsed by the Registry Officer instead of the Registrar as per the _mandatory provision of Rule 15 of the Tanzania Court of Appeal Rules, 1979." Mr. Maeda, though a layman, very ably took us through his objections. The first objection was the alleged non-compliance with Rule 89(1) of the Court Rules. His complaint was to the effect that pages 68 to 74 of the record of appeal were "muddled up" as he put it. Apart from this he complained that the memorandum of appeal was at the end of the record and not at the beginning, in terms of Rule 10(4) of the Court Rules. The second complaint related to the memorandum of appeal which he claimed was filed out of time. The 6 essence of the complaint was that'Jthe appellant had made an application before the High Court for an extension of time to file a notice of appeal to this Court against High Court Civil Case No. 18 of 1997 and for lodging the record of appeal. The learned judge (Shangwa, J.) granted the application. He ordered that notice of appeal should be filed within fourteen days of the date of the decision and the record of appeal within twenty days. The decision of the High Court was delivered on the 2.7.2003. Since the record of appeal was filed on the 11.11.2003, it clearly contravened the Order of the learned judge. In the third

complaint the respondent submitted that he had not consented to the notice of withdrawal of the appeal filed on the 16.8.2001. Consequently, the appeal should be dismissed under Rule 95( 4) of the . Court Rules. The fourth complaint also related to the Order of the High Court dated 2.7.2003. The respondent submitted that the appeal was not filed within twenty days as ordered by the High Court and should therefore be deemed withdrawn under Rule 84(a) of the Court Rules. Lastly, the respondent attacked the endorsement of the memorandum of appeal 7 by a Registry Officer. This, he submJtted, offended Rule 15 of the Court Rules wh_ich empowers only the Registrar to do so. On his part, Mr. Makange, learned advocate for the appellant, deemed it desirable to preface his counter-arguments by stating that the appeal before the Court was in respect of the decision of Msoffe, J. (as he then was) in Civil Appeal No. 18 of 1997 dated the 29.3.2000. The reason for doing so will become apparent later on. On the first ground of complaint, the learned advocate submitted that there was no contravention of Rule 89( 1) of the Court Rules. He conceded that there was a mix-up in the compilation of pages referred to but this was not fatal to the appeal. As regards the placement of the memorandum of appeal, the learned advocate submitted that the Court Rules do not specifically state where it should

be, whether at the beginning or at the end. The learned advocate combined the second and fourth grounds of complaint. He submitted that according to the Court Rules, the record of appeal is supposed to be filed within sixty days and not twenty days as ordered by the learned judge. He added that the certificate of delay 8 in terms of Rule 83(1) of the Co()rt Rules was issued on the 7.11.2003 and the record of appeal was filed on the 11.11.2003, well within the prescribed period in terms of the Court Rules. When asked by the Court as to why he did not prefer an appeal against the Order of the High Court which had to be complied with, the learned advocate stated that Act No. 25 of 2002 which bars appeals against interlocutory decisions/orders of the High Court had already come into effect. On the third ground of complaint, Mr. Makange submitted that the notice of appeal that had been withdrawn referred to a decision of the High Court in Misc. Civil Application No. 45 of 2001 dated 2.8.2001 (Msoffe, J.) as he then was. The notice of appeal before the Court is in respect of High Court Civil Case No. 18 of 1997 dated the 29.3.2000. Lastly, the learned advocate submitted that it was not necessary for the Registrar under Rule 15 of the Court Rules, to endorse the memorandum of appeal. After hearing the rival contentions of the parties, we dismissed the preliminary objection but

reserved our reasons, which we now proceed to give. l _1 9 '/ The first ground of objection concerned the repetition of certain pages in the record of appeal. Mr. Maeda cited two such instances. We are at loss to understand in what way the respondent was prejudiced and what injustice was occasioned to him. Under rule 89 of the Court Rules it is necessary to include in the record of appeal the documents enumerated therein. We could not appreciate what was particularly offensive in such an inconsequential repetition of a few pages. This, of course is not to say that we condone the careless preparation of the court record. Appellants should faithfully comply with Rule 89(5) of the Court Rules. Mr. Maeda raised an interesting point relating the placement of the memorandum of appeal, whether at the beginning or at the end of the record of appeal. Mr.Makange submitted that in terms of Rule 89(1 )(k), a memorandum of appeal was "such ·other document" and should therefore come at the end. Mr. Maeda however, referred to Rule 10(4) which reads - : _, I "( 4) The pages of every,;application and, in criminal cases, of the record of appeal, and in civil cases, of the memorandum of appeal and record of appeal shall be numbered consecutively" (emphasis added). Reading Rules 10(4) and 83(1) of the Court Rules, it would appear that ·the memorandum of appeal should be numbered and appear before

the record of appeal. Rule 89(1) enumerates the documents which must be .contained in a record of appeal and which, under Rule 89( 4), shall be bound in the order in which they specified in Rule 89(1). Rule 89(1) does not indicate where a memorandum of appeal should be. In any event, whether the memorandum of appeal is at the beginning or at the end of the record of appeal, is of no consequence to us. It does not affect the competence of the appeal. Like the learned advocate for the appellant, we shall consider grounds (2) and (4) of the objections together. In order to -' " ,.., ' .. '---' ' '' ' 11 appreciate the nature of these grounds, we need to give a brief factual background. In Misc. Civil Application No. 91 of 2001, the appellant filed a. chamber summons in the High Court under section 11(1) of the Appellate Jurisdiction Act, 1979 seeking two orders, the extension of time to file notice of intention to appeal, and extension · of time for lodging the record of appeal, to this Court. The application was heard on the 20.6.2003 and the learned judge (Shangwa, J.) delivered his ruling on the 2.7.20Q3 in which he stated in part as follows:- "The Notice of Appeal has to be filed within fourteen days · from to day and ··the record of appeal has to be submitted to the Registrar of the Court of Appeal within twenty days from to day." It is not in dispute that the record of

appeal was filed on the 11.11.2003. The learned judge had ordered that it be filed within twenty days reckoned from the date of the ruling, the 2.7.2003. If '' , \ 12 we go by this ruling, undoubtedly the1 record of appeal was filed out of time. However in terms of· rule 83 of the Court Rules, the appellant must file a record of appeal within sixty days of the lodging of the notice of appeal. The record shows that the notice of appeal was filed on the 14.7.2003, within time as ordered by the learned judge. The certificate of delay was issued on the 7.11.2003 and this is the date the sixty days began to be counted for the purposes of filing the memorandum of appeal. Again, the record shows that it was filed on the 11.11.2003. It was therefore not time-barred as Mr. Maeda would make us believe. The problem now that arises is that the Order of Shangwa, J. is still subsisting. We are not in doubt that, that part of the ruling of the learned judge that ordered that the record of appeal should be filed within twenty days of the decision thereof was contrary to law. The question which arises now is, is this Court impotent to rectify the illegality gazing into our eyes. We do not think so. Section 4(2) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 17 of 1993 provides as. follows - 13 (2) For all purposes of an& incidental to the hearing and determination of any appeal

in the exercise of the jurisdiction conferred upon it by this Act, the Court of appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act, have the power of revision and the power, authority and jurisdiction vested in the court from which the appeal is brought. In the course of hearing this appeal, we have noted that the learned judge (Shangwa, J.) on the 2.7.2003 delivered a ruling in which he shortened the period of filing the record of appeal to twenty days from the date of .filing the notice of appeal. This was certainly I contrary to Rule 83(1) of the Court Rules. We think that this is a fit case in which to invoke section 4(2) of the Appellate Jurisdiction Act and exercise our revisional powers. Under subsection (2), the Court is conferred with powers of revision for the purpose of and incidental to the hearing and determination of any appeal. (See: Civil 14 Application No. 64 of 1995 between D,ar es Salaam Education and Office Stationery and National Bank of Commerce; Criminal Appeal No. 61 of 1999 between Augustino Lyatonga Mrema and the Republic (both unreported). As stated before, the problem with this case is that the appellant could not appeal against the ruling of Shangwa, J. made tt on the 2.7.2003 due to the amendment brought about by- Act No; 25 of 2002 to the Appellate Jurisdiction Act, 1979. Section 5(2)(d) of this Act, as

amended, now provides - "( d) No appeal or application for revision shall be against or be made in respect of any preliminary or interlocutory decision or order of the H.igh Court unless .such decision or order has the effect of finally determining the criminal charge or suit." 15 The Act became operative from the 14.1'2.2002. Now the illegality in the interlocutory order of the learned judge is a glaring error which we think calls for urgent remedial action by this Court. In order to achieve this, we invoke our powers of revision and do hereby quash that portion of the decision of Shangwa, J. that reads - "and the record of appeal has to be submitted to the Registrar of the Court of Appeal within twenty days from to day." and substitute therefor the following - "and the record of appeal to be filed according to law." Since the record of appeal was filed on the 11.11.2003, it was well within the pre~cribed period of sixty days reckoned from the 7.11.2003 when the certificate of delay was issued. 16 We now come to the third groupd of complaint. This one need not detain us. The appellant submitted that he did not consent to the notice of withdrawal filed on the 16.8.2001 in terms of Rule 95(3) and so the appeal should be dismissed under Rule 95 (4). It will be. apparent that on reading this notice of withdrawal that it refers to the notice of appeal filed on the 3.8.2001. This

notice of appeal however was in respect of a decision of Msoffe, J. (as he then was) dated 2.8.2001 in Misc. Civil Application No. 45 of 2001. This is the notice of appeal that was withdrawn. The notice of appeal at hand is in respect of the decision of Msoffe, J. (as he then was) dated the 29.3.2000 in High Court Civil Case No. 18 of 1997. This ground is equally devoid of merit. The last ground of complaint on the preliminary objection related to the purported non-compliance with Rule 15 of the Court Rules.: Mr. Maeda complained that the memorandum of appeal was improperly before the Court because it was endorsed by a Registry Officer and not .the Registrar as stipulated under Rule 15. On the face of it, this is a violation of Rule 86 (1) and (3) of the Court Rules 17 read together with Form F to the First Sczy,edule. The real question for determination is, what are the consequences of this purported error by the registry official in endorsing the memorandum of appeal. The contention by Mr. Maeda is that it is only the Registrar who is authorized to endorse the memorandum of appeal. It should be noted that the appellant herein did all that was expected of him in terms of Rule 15 of the Court Rules. He lodged the memorandum of ' _appeal in the appropriate registry for endorsement by the Registrar. Once the appellant has lodged the memorandum of appeal with the Registrar, his

responsibility ceases. What is left to be done, such as the endorsement of the memorandum of appeal by the Registrar is entirely the domestic affairs of the Court and its staff. The appellant should not be taken to task for mistakes of the Court in connection with internal matters. We hasten to add however, that of the recent \,, past, this Court has consistently held that a notice of appeal which had been signed on behalf of the Registrar offends Rule 76 (6) and Form D of the. 1st Schedule to the Court Rules and is, therefore invalid. (See: William Loitiame v. Asheri Naftali (CAT) Civil Appeal No. 62 of 1999; Tanzania Revenue Authority v. Al '~ ,., ' :... ,;;,, -·· \ . 18 Naeem Enterprises Ltd. (CAT) Civil Appeal No. 8 of 2001 (both unreported). In the case of 21 st Century Food and Packaging Ltd. and (i) Tanzania Sugar Producers Association (ii) The Ministry of Finance (iii) The Hon. Attorney General, Civil Application No. 91 of 2003, a panel of this Court had a fresh look at this stand and after taking into account Rule 15 of the Court Rules which had not been considered in earlier cases, stated as follows - "We find, therefore: One, Rules 76 and 86 basically deal with how a notice of appeal and a memorandum of appeal, respectively, should be and what they should contain.· Two, the lodging of a document is distinct from the endorsement of a document though the two are

closely related. Three, the lodging of a notice of appeal is dealt with under Rule 76 (1) while that of a memorandum of appeal is a subject matter of . Rule 83 (1). Four, the endorsement of documents that have been lodged under the respective rules is done under Rule 15 by the Registrar or the Registrar of the High Court, as the case may be. So any transgression 19 against Rule 15 is comn)itted by those authorities and cannot be imputed on an advocate or an , appellant." ( emphasis added.) In the final analysis, we held that the memorandum of appeal though not signed by the Registrar or the Registrar of the High Court under Rules 76 and 86 of the Court Rules, was not invalid. In the same vein, the memorandum of appeal herein is not invalid as contended by Mr. Maeda. It is for these reasons that we dismissed the preliminary objection. We now turn our attention to the substantive appeal. As stated before, Mr. Makange has preferred three grounds of appeal. The first two grounds will be considered together. The central issue is the judgment delivered on the 29.3.2000. For ease of reference, we take the liberty to reproduce the entire proceedings on this date. "Coram: Msoffe, J. f"',_ •;. f I ,, 20 For plaintiff: Present 'I For defendant: Absent ( served) Plaintiff - My Lord, since there is record that the defendant is served I pray for judgment as prayed. Order: - It is correct

that the defendant Authority is served through Mr. Malambo the Author.ity's Legal Officer. In the circumstances, I will have no other option except to uphold the request put forward by the plaintiff. If I may add, the record clearly shows that the plaintiff testified and eventually closed his case. In other words, he has since proved his case in the presence of the defendant Authority. In the premise, this is judgment for the plaintiff as prayed. For the avoidance of doubt, this is a judgment for plaintiff which conforms with the provisions of Order XVII Rule 3 of the Civil Procedure Code." ,•: ,"-/ I I ..,. I •• 21 Mr. Makange's complaint is that the ,pequirements of Order XVII Rule 3 of the Civil Procedure Code, 1966 were not .complied with. Mr. Makange submitted that the learned judge neither evaluated the evidence nor did he consider the written statement of defence. With respect, there is considerable force in the learned advocate's contention. Order XVII Rule 3 of the Civil Procedure Code provides as under - "(3) Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses or to perform any other act necessary to further the progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." This provision is the equivalent of the

same Rule in the Indian Code of Civii Procedure, (Act No. V of 1908) before the amendment effected in 1976. The learned author of Mulla on the Code of Civil • f ~~-'• 1 I I l •t I I 22 Procedure, Vol. I (13 th edition) has this t9 say on the application of the said Rule at pages 896- 7 - "The provisions of this rule do not apply unless - (i) the hearing is adjourned on the application of a party to the suit; as distinguished from an adjournment by the Court of its own motion; · (ii) the hearing is adjourned on the application of the party who subsequently makes the default; {iii) the adjournment is granted .to enable the party to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to further the progress of the suit; and . , , . , •• ! / ' . .. • ' I . ' •:. ;\, . (I 23 ~-- ,, '/ (iv) the party fails to perform any of the acts for which . the adjournment was granted within the time allowed by the Court." It will be recalled that on the 13.12.99 the Court fixed a date for hearing of the case· on the 29.3.2000, and that the appellant should be served with notice of the hearing date. The adjournment of the case was done at the instance of the court itself. The appellant was · not present. The appellant who subsequently defaulted on the 29.3.2000 did not make an application for the adjournment. The appellant had not asked for

more time to do anything and failed to do so and was asking for more time. Under the circumstances, Order XVII rule 3 of the Civil Procedure Code was not applicable. There is another aspect on Order XVII rule 3 of the Civil Procedure Code that we would like to mention. We have already r,..1.,_, ..,: l I • "!·,,.. • ,,,,_ - . i. 4, 24 ~-.,- reproduced the judgment in question. TM,e learned judge did not at all consider the pleadings, evaluate the evidence that was before the court. Since the learned judge invoked Order XVII rule 3 then he was enjoined to consider the case on its merits. In the case of Salem Ahmed Hassan Zaidi v. Faud Hussein Humeidan (1960) EA 92, Forbes V.P. had this to say at page 98 - "It -is established in India that a decision under 0. XVII rule 3, is a decision on the merits, that is to say, on consideration of such materials as may be available, and that if, in the case of a plaintiff such materials fail to ·substantiate the claim, the suit is dismissed on that ground and not for the default committed by him." - The import of this is that a decision under Order XVII rule 3 must be deemed to be a decision on the merits. The evidence therefore has to be considered and evaluated. (See also: Zabron Pangamaleza v. Joachim Kiwaraka & Another (1987) TLR 140 at page 146). , ..:. > •• I i• I '-,/ \ ' 25 The third ground of appeal is closely1 related to the first

ground of appeal. The complaint here was to the effect that the extracted decree on page 74 of did not agree with the Order of the court dated. the 29.3.2003. The said Order reads in part as follows - "For the avoidance · of doubt, this is a . judgment for the plaintiff which conforms with the provisions· of Order XVII Rule 3 of the Civil Procedure Code, 1966." We have already discussed earlier on whether or not there was due compliance with Order XVII rule 3 of the Civil Procedure Code. Under Order XX rule 4 of the CPC every judgment should contain a concise statement of the case; the points for determination; the · decision thereon and the reasons for such decision. We are of the . settled view· that there was ·no.judgment as we know it under the law. And since there was no judgment, the third ground of complaint has merit. The decree did not agree with the judgment in terms of order XX Rule 6 (1) of the Civil procedure Code. 26 In the result, we allow the appeaJ with costs. We quash the proceedings and Order dated the 29.3.2000 and direct that another judge, write a judgment according to law. DATED at ARUSHA this 15th day of Jun·e, 2005. A.S.L. RAMADHANI

JUSTICE OF APPEAL J.A. MROSO

JUSTICE OF APPEAL H. R. NSEKELA

JUSTICE OF APPEAL I certify that this is a true copy of the original.