20130430 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CORAM: BWANA,, l.A, MASSATI,. J.A And JUMA, 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 th th 16 & 30 April, 2013 MASSATI, l.A. The appellant was dissatisfied with the decision_ of the High Court I (Bubeshi J) in Civil Case No .. 205 of 1999 • dated 5th October I 2000, and filed I I an appeal in this Court on the 3rd July 2009. Similarly, the respondent was aggrieved by part of the decision and filed a notice of cross appeal on 19th July, 2009 to have it varied or reversed~ ' 1 I ) i. When the appeal came up for hearing, the Court was first invited to 1 I determine a preliminary objection, raised by the appellant, notice of which I was earlier on filed under Rule 107 of the Court of Appeal I Rules, 2009, (the I Rules). The objection was·against the notice of cross appeal and couched I in the following terms:- " TAKE NOTICE that on the first day of hea1ing of this appeal or any other date the appeal sl:Jall stand adjourned the appellant shall raise a preliminary I objection on point of law and shall move the Honourable Court to strike out the cross apPieal on the ground that the same is time barred following decision of the High court (Makaramba/ J) dated I:11th June/ 2008 in Civil Case No. 205 of 1999 refusing to grant extension of time to the respondent to fit~ notice of appeal" For the Appellant, Mr .Wilson Ogunde, learned :counsel, submitted that since the Respondent's application for extension of time to file a notice 1 i of appeal was refused by the High Court on 11.6.2008, and since the . I Respondent had filed a notice of appeal against that ruling and an application for leave to appeal having been granted elm 27/2/2009, the I Respondent cannot now abandon that process and use a back door to' I 2 ) appeal to this Court, by way of a cross appeal. It was further his view, I i that for all purposes and intents a cross appeal was as good as an appeal. So, he invited the Court to read into Rule 87 of the Cou:rt of Appeal Rules, I 1979 (the old Rules) (now. Rule 94(1) of the R81es) that in the circumstances, the Respondent could not be allowed to have filed the cross I appeal. He thus asked .us to strike it out as it was i,ncompetent. The learned counsel did not refer to us any authority on that stance. 1 i I But Mr. Lugano Mwandambo, learned counsel for the respondent, had a different view. He submitted that a notice of cro~s appeal is distinct I from a Notice of Appeal. --If extension of time to file a Notice of Appeal is I refused the respondent would -not be barred from filing a notice of cross I appeal because the rights under Rules 77 and 87 of the old rules and 83 I 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 I of the Rules) a notice of cross appeal has to be filed vyithin 30 days from the date of service upon respondent, of a record and memorandum of I 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 I I was filed in time, he argued. He therefore urged us to dismiss the 1 3 preliminary objection with costs. Like Mr. Ogunde, I Mr. Mwandambo I himself did not refer to us any authority to support his bwn version. I I I The notice of cross appeal in this case was filed u~der Rule 87 of the i old Rules. That Rule reads as follows: I I 87 (1) A respondent who desires to contehd at the ' hearing of the appeal that the decision o~ the High Court or any of it should be varied or rever$ed, either I in any event or in the event of the app,eal being i allowed in whole or in part shall give notice I to that I effect specifying the grounds of contentioh and the I nature of the order which· he proposes tb ask the I Court to make/ or to make in that event as the case I maybe. 1 (2) A notice given by a respondent unde~ this Rule shall state the names and addresses of ary person intended to be served with copies of the notice and I shall be lodged in quadruplicate in the appropriate registry not more than thirty davs after service on the respondent of the memorandum of appeal and the record of appeal. (Emphasis supplied) I (3) A notice of cross appeal shall be substantially in I the Form G in the First Schedule to these Rules and 1 I shall be signed by or on behalf of the respondent. 4 ) I This provision is in pari materia with Rule 94 of the I current Rules. Unlike a cross appeal, a notice of appeal under the old Rules, was instituted under Rule 77 (now Rule 83) "in duplicate, witqin 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 I 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 I in and after lodging an appeal..< It does not depend on the existence of a notice of appeal. To that extent, we partly agree wit~ Mr. Mwandambo that an appeal and a cross appeal are distinct proceedings, but we do not I 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 appe.al. I 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 cjlppeal. In the present case, there is no dispute that the record and I memorandum of appeal was .served on the respondent on 6/7/2009, and I 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 I 87(2) of the old Rules (or Rule ·94(2) of the current Rules) whether or not 5 . .,, . ' • I the respondent had attempted and failed to lodge a separate notice of I I appeal in the same proceedings; because as seen above; a notice of cross appeal is a distinct creature, brought about by the existehce of an appeal. i For the above reasons, we find no merit in the pr~liminary objection and dismiss it with costs. I DATED at DAR ES SALAAM this. 19th day of April, 2013. I S. J. 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 origina I D REGISTRAR COURT OF APPEAL 6