nyakato soap industries ltd vs consolidated holding corporation 2013 tzca 504 30 april 2013

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CORAM: BWANA . J.A. MASSATL. 3.A And 3UMA, J.A. CIVIL APPEAL NO. 54 OF 2009 NYAKATO SOAP INDUSTRIES LTD....................................................... APPELLANT VERSUS CONSOLIDATED HOLDING CORPORATION....................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es salaam ) (Bubeshi, J.) Date 5th October, 2000 In Civil Case No. 203 of 1999 RULING OF THE COURT 16th & 30th April, 2013 MASSATL J.A. The appellant was dissatisfied with the decision of the High Court (Bubeshi J) in Civil Case No. 205 of 1999 dated 5th October 2000, and filed an appeal in this Court on the 3rd July 2009. Similarly, the respondentwas aggrieved by part of the decision and filed a notice of cross appealon19th July, 2009 to have it varied or reversed. When the appeal came up for hearing, the Court was first invited to determine a preliminary objection, raised by the appellant, notice of which was earlier on filed under Rule 107 of the Court of Appeal Rules, 2009, (the Rules). The objection was against the notice of cross appeal and couched in the following terms:- " TAKE NOTICE that on the first day o f hearing o f this appeal or any other date the appeal sh all stand adjourned the appellant shall raise a prelim inary objection on point o f law and sh all move the Honourable Court to strike out the cross appeal on the ground that the same is tim e barred follow ing decision o f the High court (Makaramba, J) dated 11th June, 2008 in C ivil Case No. 205 o f 1999 refusing to grant extension o f tim e to the respondent to file notice o f appeal" For the Appellant, Mr Wilson Ogunde, learned counsel, submitted that since the Respondent's application for extension of time to file anotice of appeal was refused by the High Court on 11.6.2008, and since the Respondent had filed a notice of appeal against that ruling and an application for leave to appeal having been granted on 27/2/2009, the Respondent cannot now abandon that process and use a back door to 2 appeal to this Court, by way of a cross appeal. It was further his view, that for all purposes and intents a cross appeal was as good as an appeal. So, he invitted the. Court to read into Rule 87 of the Court of Appeal Rules, 1979 (the old Rules) (now Rule .94(1) of the Rules) that in the circumstances, the Respondent could not be allowed to have filed the cross appeal. He thus asked us to strike it out as it was incompetent. The learned counsel did not refer to us any authority on that stance. But Mr. Lugano Mwandambo, learned counsel for the respondent, had a different view. He submitted that a notice of cross appeal is distinct from a Notice of Appeal. If extension of time to file a Notice of Appeal is refused the respondent would not be barred from filing a notice of cross appeal because the rights under Rules 77 and 87 of the old rules and 83 and 94 of the Rules are mutually exclusive and none depends on the other. He went on to point out that under Rules 87 of the old rules (and Rule 94 of the Rules) a notice of cross appeal has to be filed within 30 days from the date of service upon respondent, of a record and memorandum of appeal. In the present case, the respondent was served with the documents on 6/7/2009 and the cross appeal was filed a 17/7/2009. So it was filed in time, he argued. He therefore urged us to dismiss the 3 preliminary objection with costs. Like Mr. Ogunde, Mr. Mwandambo hiinseff did not refer to us any authority to support his own version. The notice of cross appeal in this case was filed under Rule 87 of the old Rules. That Rule reads as follows: 87 (1) A respondent who desires to contend a t the hearing o f the appeal that the decision o f the High Court o r any o f it should be varied or reversed, either in any event or in the event o f the appeal being allow ed in whole or in part sh all give notice to that effect, specifying the grounds o f contention and the nature o f the order which he proposes to ask the Court to make, or to make in that event, as the case m ay be. (2) A notice given by a respondent under this Rule sh a ll state the names and addresses o f any person intended to be served with copies o f the notice and sh all be lodged in quadruplicate in the appropriate registry not more than thirty days after service on the respondent o f the memorandum o f appeal and the record o f appeal. (Em phasis supplied) (3) A notice o f cross appeal sh all be substantially in the Form G in the First Schedule to these Rules and sh a ll be signed by or on behalf o f the respondent. 4 This provision is in p ari m ateria with Rule 94 of the current Rules. Unlike a eras appeal, a notice of appeal under the old Rules, was instituted under Rule 77 (now Rule 83) "//7 duplicate, within fourteen days). It is only after lodging the notice of appeal that an appeal could have been instituted within sixty days from the date when the notice of appeal has been lodged. So while an appeal comes into existence when a notice of appeal is lodged, a cross appeal can only come into existence, and co exist in and after lodging an appeal. It does not depend on the existence of a notice of appeal. To that extent, we partly agree with Mr. Mwandambo that an appeal and a cross appeal are distinct proceedings, but we do not agree with him that they do not depend on each other. A notice of cross appeal is dependant upon the coming into existence of an appeal. So under Rule 87 (2) of the old rules time begins to run after the respondent has been served with a record of, and memorandum of appeal. In the present case, there is no dispute that the record and memorandum of appeal was served on the respondent on 6/7/2009, and that the notice of cross appeal was filed on 17/7/2009, well within the prescribed 30 days. In our view, it is not relevant for the purposes of Rule 87(2) of the old Rules (or Rule 94(2) of the current Rules) whether or not the respondent had attempted and failed to lodge a separate notice of appeal in the same proceedings; because as seen above a notice of cross appeal is a distinct creature brought about by the existence of an appeal. For the above reasons, we find no merit in the preliminary objection and dismiss it with costs. DATED at DAR ES SALAAM this 19th day of April, 2013. S. 1 BWANA JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original COURT OF APPEAL 6