20080702 TZCA Dar es Salaam

1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 48 OF 2008 . NICOMEDES KAJUNGU & 1374 OTHERS ........................... APPLICANTS VERSUS BULYANHULU GOLD~INE {T) LTD .... ~ ............................ RESPONDENT \ {Application for, extension of time from the decision of the High Court of Tanzania Labour Division, at Dar es Salaam) (Sambo,J.) dated the 18th day of March, 2008 in Civil Application No. 2 of2008 RULING 17th June, 2008 & 2nd July, 2008 MSOFFE, J. A: There is before me an application to extend time to the applicants to serve the respondent Company with a copy of the notice of appea.1 lodged in the High Court, Labour Division, at Dar es Salaam on 19/3/2008. It is averred under paragraphs 3 and 2 of the I affidavits of Mr. Juma A.M. Nassoro and Mr.Mohamed Salehe Mlandula, respectively, that after lodging the no.tice on 19/3/2008 the same remained with the Registrar for purposes of signature until 31/3/20Q8 when it was- released for service. By that ti me the 2 statutory period of seven days provided under Rule 77(1) for service / of a notice of appea-~had-expired, hence this application. For the respondent Company, Mr. Lugano J.S. Mwandambo, learned advocate, filed an affidavit in reply. He also appeared and vigorously opposed the application on behalf of the respondent Company. The thrust of his submission was based on his averment under paragraph 4 of the affidavit in reply. He stated that under Rule 77 (1) there is no requirement for endorsement of a notice of appeal by the Registrar. · So, it was not necessary for Mr. Nassoro to wait until 31/3/2008 for the endorsement, he urged. At any rate, he went on to submit, assuming there was such requirement there is no evidence that Mr. Nassoro made any follow up of the notice between 19/3/2008 and _31/3/2008. Furthermore, he contended, it is not the duty of the Registrar to serve a notice of appeal to parties as averred under paragraph 2 of Mr.Mlandula's affidavit; there is no affidavit of the Registrar to support that of Mr. Nassoro; Mr. Mlandulas's affidavit cannot corroborate that of Mr. Nassoro because there is no indication that he was personally assigned the duty of dealing with that particular notice of appeal; there is nothing in Mr. Mlandula's affidavit 3 to explain that he was personally instructed by the Registrar to swear the affidavit to explain away the delay. It is elementary that under Rule 77(1) of the Court of Appeal Rules, 1979 it is mandatory that before or within seven days after lodging a notice of appeal the respondent is to be served with copy of notice of appeal. In this case, there is no dispute that that was not complied with. The issue is whether there is sufficient reason to extend Ute time for serving the notice of appeal on the respondent Company. There is no dispute that the decision the subject of the intended appeal was given on 18/3/2008. On the same day the notice of appeal was drawn and signed by Mr. Nassoro, learned advocate for the applicants. The following day, i.e. on 19/3/2008, the notice of appeal was lodged .in the Labour Division of the High Court of Tanzania at Dar es Salaam. Once the notice of appeal was signed and released by the Registrar on 31/3/2008 the present notice of motion was drawn.._,on the same day. Surely, by the above conduct it occurs to me that the applicants have all along desired to prosecute the intended appeal without delay. ,. ' / ·/ 4 As already· observed, Mr. Mwandambo maintained that under Rule 77(1) there is no requirement for endorsement of a notice of appeal by the Registrar. With respect, that is correct. However, it is also correct ·that under Rule 76(6) a notice of appeal "shall be substantially in the Form D in the First schedule to these Rules .... " Under Form D the Registrar has to endorse the notice of appeal. It is clear therefore, that in this case the applicants had to wait for the endorsement in question before taking any further action . .. I appreciate Mr. Mwandambo's argument that between 19/3/2008 and 31/3/2008 the applicants ought to have followed up the notice of appeal. That may well be so. But let us look at the reality of the situation. The applicants presented the notice for endorsement immediately after lodging it on 19/3/2008. As far as they were concerned they had, up to that stage, done what was reasonably expected of them. It there was a delay by the Registrar in acting promptly surely blame, if any, should not be attributed wholly on the applicants. A word or two about the absence of the Registrar's affidavit to support the affidavit of Mr.Nassoro that it was not until 31/3/2008 5 when the notice was-eventually signed and released for service. If I understood Mr. Mwandambo correctly, and l think I did, he was of the view that in the absence of such affidavit the affidavits of Mr.Nassoro and Mr. Mlandula may not necessarily be true that the notice was signed and released on 31/3/2008. That may be true. However, the argument is attractive but, with respect, it cuts both ways. If Mr. Mwandambo thought that this was an important point he could have as well obtained the Registrar's affidavit with a view to .._, . - showing that the averments by Mr.Nassoro and Mr.Mlandula on the point were not true. As it is, in the absence of such affidavit, there is no basis for faulting Mr.Nassoro and Mr.Mlandula that the notice was actually signed and released for service on 31/3/2008. In terms . of Rule 8 of the Court of Appeal Rules, 1979 the power to extend time is at the discretion of the Court. Having . considered the application in its totality I am of the considered view ""'..;J - that I shoulc;1 exercise the discretion in favour of the applicants. Accordingly I hereby grant the application as prayed. The applicants are given a period of seven days from the date of this Ruling to serve the respondent Company with a copy of the notice of appeal. As 6 prayed by the applicants in the notice of motion, costs will abide the result of the intended appeal. It is so ordered accordingly .. DATED at DAR ES SALAAM this 2ndday of July, 2008. J. H. MSOFFE .. JUSTICE OF APPEAL I certify th~t this is a true copy of the original. frl:t= F. L. K. WAMBALI REGISTRAR