CIVIL APPEAL NO 376 OF 2023 PHOENIX OF TANZANIA ASSURANCE CO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: GALEBA. J.A.. FIKIRINI. 3.A. And ISMAIL, 3.A.) CIVIL APPEAL NO. 376 OF 2023 PHOENIX OF TANZANIA ASSURANCE CO. LTD APPELLANT VERSUS JILALA JULIUS KAKENYELI ,1st RESPONDENT BILLY BALI...................... 2nd RESPONDENT (Appeal from the ruling and drawn order of the High Court of Tanzania at Dar es Salaam) (Twaib, 3/) dated the 25th day of May, 2015 in Civil Case No. 64 of 2007 RULING OF THE COURT 19th &26th March, 2025 ISMAIL. J.A.: The 1st respondent was aboard a commuter mini-bus which was piying along Nyerere Road, and was involved in an accident. The accident involved the bus in which he was commuting, bearing registration No, T 448 AFY, that collided with a vehicle with registration No. T 124 ACY, Toyota Land Cruiser whose driver was Billy Bali, the 2nd respondent. Bodily injuries that the 1st respondent sustained saw him confined to a hospital bed for a few months. Upon discharge, the respondent instituted a case in the High Court, claiming compensation for the damage suffered as a result of the injuries sustained as a result of the accident. The 2nd respondent, who was adjudged the offender who caused the accident was impleaded, alongside the appellant, as parties against whom the claim of damages was preferred. The appellant's involvement in the proceedings was on account of the fact that the 2nd respondent's vehicle was, at the time of the accident, under the insurance cover provided by the appellant. The 1st respondent emerged a victor in the trial proceedings against the appellant and 2nd respondent, jointly. As a result, they were ordered to pay special damages amounting to TZS. 58,315,184.00; general damages to the tune of TZS. 25,000,000.00; and interest on the awarded sums. Rattled by the trial court's decision, the appellant instituted an appeal whose proceedings were nipped in the bud, thanks to the preliminary objection that was raised by the 1st respondent, challenging the competence of the appeal for failure to serve the Notice of Appeal on the 2nd respondent, who was a party to the trial proceedings. This objection was sustained and the appeal was struck out. Smarting from the loss, the appellant put her act together and staged a comeback through the instant appeal. This too has suffered an impediment, through a couple of preliminary objections raised by the 1st respondent, to the effect that: . 1. That the appeal is incompetent for failure to serve the memorandum and record o f appeal to the 1st respondent within the prescribed period o f seven days from the date o f filing, contrary to the mandatory requirement o f rule 97 (1) o f the Rules; and 2. That the appeal is incompetent on the ground that the records o f appeal were obtained unlawfully or illegally. When the matter was called on for hearing Mr. Odhiambo Kobas, learned counsel, appeared for the appellant, whilst Messrs Erick Denga and Patrick Kaheshi, both learned counsel, represented the 1st and 2nd respondents, respectively. Addressing us on the first point of objection, Mr. Denga submitted that, whereas the instant appeal was filed on 6th July, 2023, service of the memorandum and record of appeal on the 1st respondent was effected on 17th July, 2023. This, he argued, was in contravention of rule 97 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) which are to the effect that such service is to be done within seven days. By Mr. Denga's reckoning, seven days expired on 10th July, 2023, while the said service was done on 17th July, 2023. The learned counsel invited us to hold that the appeal is incompetent and that the same be struck out with costs. He contended that, so serious is the anomaly, that it cannot be cured by the principle of overriding objective. He fortified his contention by referring us to our decisions in Sahara Media Group v. Simbanet Tanzania Limited, Civil Appeal No. 65 of 2020 [2023] TZCA 17479; Ephigenia Joachim John Mmasy alias Vigenia Joachim Mmasy v. Jimmy Prosper Marko, Civil Appeal No. 321 of 2021 [2024] TZCA 721; and Mokiri Damas Ngoja v. National Housing Corporation & Another, Civil Appeal No. 273 of 2018 [2021] TZCA 540. In his rebuttal submission, Mr. Kobas was strenuously of the contention that the objection is utterly misconceived. The learned counsel argued that rule 97 (1) of the Rules can only be invoked where the respondent files and serves a notice of address for service. In this case, he contended, none was furnished and that Mr. Denga had not stated that he furnished any such notice in terms of rule 86 of the Rules. Mr. Kobas further submitted that, even if such notice was to be furnished, which is not the case, the 1st respondent would still need to produce evidence which would effectively render the preliminary objection fail the test of being a pure point of law. Mr. Kobas further contended that rule 97 (1) of the Rules is silent on the consequences of failure to conform to it, arguing further that, from what he knows, such service should only be done within a reasonable time. Reflecting on the delay, Mr. Kobas was of the view that the delay of three days is not inordinate, and that the 1st respondent has not indicated if an injustice was caused. He urged us to be amenable to the prayer of invoking an overriding objective to cure the anomaly. On this, he referred us to a couple of our decisions. These are: Mathias Mtavangu v. Republic, Civil Appeal No. 452 of 2021 [2024] T7CA 1231; and Security Group (T) Limited v. Steven Gerson Kizinga (As an administrator of the estate of the late Mashaka A. Setebe), Consolidated Civil Appeal No. 386 of 2020 & 50 of 2021 [2024] TZCA 107. The counsel's divergent contentions invite us to determine if rule 97 (1) of the Rules was violated and, if yes, the consequence of the alleged violation. As we embark on this journey, it is apposite that the substance of the said provision be reproduced, as hereunder: "The appellant shall, before or within seven days after lodging the memorandum o fappeal and the record of appeal in the appropriate registry, serve copies o fthem on each respondent who has complied with the requirements o frule 86," [Emphasis added]. As unanimously contended by the learned counsel, this provision sets out the time frame requisite for serving copies of memorandum of and record of appeal on each respondent. It provides for seven days from the date on which the documents were lodged. Mr. Kobas has conceded that the 1st respondent was served on 17th July, 2023, while the appeal was lodged on 6thJuly, 2023. He has, however, given a reason for the appellant's inability to act within time but we shall come to that shortly. It should be observed that service of memorandum of appeal constitutes an indispensable requirement that is intended to let the respondent know, in good time, the nature of the appellant's consternation on appeal in order to enable him to lay out his case strategy, and prepare a robust rebuttal ahead of the hearing. Certainty in the time frame would also afford him time to mobilize resources for enlisting services of a legal counsel if he so wishes. So crucial is the conformity with this requirement that its wording, couched in mandatory terms, provides no room for deviation. Thus, in Ephigenia Joachim John Mmasy (supra), when an akin situation arose, we accentuated the need to comply with the time prescription set out by rule 97 (1) of the Rules, and held: "Coming back to the instant appeal before us, what we couid discern from the record, it seems dear to us that the respondent was duly served with the memorandum and record o f appeal on 14* December, 2021 while the appeal was lodged on lCfh September, 2021 more than three (3) months from the date when the appeal was lodged in total disregard to the mandatory requirement o f rule 97 (1) o f the Rules which requires such sen/ice to be 6 done before or within seven days after iodging. We think, with respect, there is considerable merit in the submission by the counsel for the respondent that rule 97 (1) o f the Rules is not cosmetic but rather it was meant to be complied with. "[Emphasis added]. We find this to be the correct exposition of the law, and we hasten to emphasize that, inability by the 1st respondent to furnish notice of address for service, under rule 86 (1) (a) of the Rules cannot, as a matter of law, constitute the basis of flouting the imperative requirement imposed under rule 97 (1) of the Rules as Mr. Kobas tried to persuade us to believe. The appellant could still, as we know that he did, invoke rule 84 (2) of the Rules and serve the documents through the known address that she gathered from the proceedings of the High Court. It is, in fact, self-defeating to argue the way he did, because the appellant eventually effected service through the last known address. She could still use it but in strict observance of the time prescription set by law. Mr. Kobas has 'pitched a camp' on the application of the overriding principle that he hopes to get him "off the hook". He considers this to be the right call in the circumstances of this case, a view at which Mr. Denga has taken a swipe. With respect to Mr. Kobas, we are unable to go along with his reasoning on this aspect. We take the view that non-conformity with the imperative requirements of rule 97 (1) of the Rules is not a mere technical matter that can be easily discounted through invocation of the principle of overriding objective. This is a rule of procedure on timelines and it is couched in mandatory terms. We have held this view in our numerous decisions. They include: Sahara Media Group (supra) and Mondorosi Village Council (supra). In the latter, the Court held as follows: "Regarding the overriding objective principle, we are o f the considered view that, the same cannot be applied biindiy against the mandatory provisions o f the procedural law which go to the very foundation o f the case. This can be gleaned from the objects and reasons o f introducing the principle under section 3 o f the Appellate Jurisdiction Act [CAP 141 R.E. 2002] as amended by the Written Laws (Miscellaneous Amendments) (No. 3) Act No. 8 o f 2018, which enjoins the courts to do away with technicalities and instead, should determine cases justly. According to the Bill to the amending Act, it was said thus; "The proposed amendments are not designed to biindiy disregard the rules o f procedure that are couched in mandatory terms..." We fortified this position in Mokiri Damas Ngoja (supra) when we held, at page 8, as follows: "Be it as it may, our reading o f Ruie 97(1) is that it is couched in mandatory terms implying that its compiiance is imperative." In our considered view, the application of the said principle, as sufficiently expounded in many a decision of this Court, is only fitting where the doing of the act does not bring an imperative need. Accordingly, we find the plea by Mr. Kobas for invocation of the overriding objective, untenable. In yet another attempt to blur the severity of the appellant's infraction of the said rule, Mr. Kobas beseeched us to consider that the three-day delay is not inordinate, meaning that this is a delay that we can cast a blind eye on and save the appeal from the looming danger of being adjudged incompetent. With profound respect, we consider this contention specious. We hold the view that, in determining if a party complied with the requirement of the law, the question of lengthy of delay or non-compliance plays second fiddle, if not irrelevant. Inordinacy or otherwise of the delay would be a consideration, if what was placed before us was an application for extension of time in which lengthy of delay is a factor for consideration. We, in consequence, disregard Mr. Kobas's argument in this respect and so are the decisions that he sought to rely on, as we find them distinguishable from the case at hand. In sum, we find merit in Mr. Denga's contention on this ground of objection and we sustain it. In the upshot, on this ground alone, we hold that the appeal before us is incompetent. Accordingly, we strike it out with costs. DATED at DAR ES SALAAM this 26th day of March, 2025. Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Ruling delivered this 26th day of March, 2025 in the presence of Ms. Lulu Mbinga, learned counsel for the appellant, Mr. Erick Denga learned counsel for the 1st respondent and Ms. Lulu Mbinga holding brief for Mr.Patrick Kaheshi, learned counsel for the 2nd respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL