20131018 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MSOFFE, 3.A., BWANA J.A., And MJASIRI, 1A.) CIVIL APPEAL NO.46 OF 2012 RUTAGATINA C.L. ..... .......................... ..................,..................... APPELLANT VERSUS THE ADVOCATES COMMITTEE CL..AVERY MTINDO NGALAPA ..................................... ... RESPONDENTS (Appeal from the decision of the full Bench of the High Court of Tanzania at Dar es Salaam) (Mandia, Mlay, & Shanciwa, 333.) Dated the 6' day of September, 2006 in Civil Appeal No. 221 of 2005 RULING OF THE COURT 11 th September & 22 nd October, 2013 BWANA, iA: The Advocates Committee handed down a decision wherein the appellant, C.L. Rutagatina, was found guilty of professional misconduct as a practising advocate then. Subsequent to that finding, the appellant was removed from the Roll of Advocates. 1 Aggrieved by that decision, he unsuccessfully appealed to the High Court. His appeal was dismissed, hence this second appeal. When the appeal came before us for hearing, the first respondent, represented by Mr. Michael Luena, learned Principal State Attorney, raised a preliminary objection, couched in the following words:- The appeal is hopelessly time barred. The appeal is incompetent for want of proper Notice of Appeal. Mr.- Luena adopted the contents of his earlier written submissions - filed in Court on 16 May 2013 pursuant to the provisions of Rule 106 (1) of the Court of Appeal Rules, 2009 (the Rules) although the matter is governed by the former (1979) Rules. For purposes of hearing the preliminary objection, Mr. Rutagatina, appeared in person. In his brief submission in support of the two points raised in the preliminary objection, Mr. Luena drew the attention of the Court to the fact that the High Court decision which is the subject matter of this appeal, was delivered on 6 September 2006. According to the record of appeal (at p. 280) the appellant filed his Notice of Appeal on 27 September 2008, that is, 2 a period of over two years later. The Rules then (1979) provided that an appeal should be instituted within sixty (60) days of the date when the notice of appeal was lodged. Therefore this appeal was lodged well beyond the sixty days limit prescribed by Rule 83(1) of the 1979 Rules. It was Mr. Luena's further submission that the first respondent was never served with the notice of appeal and or the certificate of delay issued by the Registrar although the same is found on the record of this appeal at page 514. A copy of a lefter from the appellant to the Registrar asking for copy of proceedings was not copied to the first respondent, Mr. Luena asserted. Therefore since Rule 83(1) of the 1979 Rules was never complied with Mr. Luena requested the Court to strike out the appeal. In support of his averments, he cited the decisions of this Court in Cresthale (UK) Ltd vs Bondeni Seeds Ltd (2000) T L R 1; a n d D. P. VaIamb/a vs Transport Equipment Ltd (1992) TLR 246.: Further, it was Mr. Luena's submission that the lodging of a notice of appeal two (2) years and two(2) months after the date of the decision against which it is desired to appeal, without extension of time, contravened Rule 76(1) and (2) of the 1979 Rules. It meant therefore that 3 there was no proper notice of appeal and consequently, this appeal is incompetent and should be struck out. The appellant, Mr. Rutagatina, differed with Mr. Luena. Going through the court record, Mr. Rutagatina impressed upon the Court that his earlier appeal (No. 44 of 2008) had been withdrawn with leave of the Court (P.281 - 282). The notice of withdrawal had been served to both respondents who consented to the lodging of a fresh notice and record of appeal. Application for extension of time to file the same had been granted by the High Court on 27 NOvember 2008. The said notice was - filed on the same day and served upon the Attorney General's Chambers on 1 December 2008, therefore within time. That was followed by other procedural steps including certification by the Registrar, of the period of delay. The Registrar's certificate of delay covered the period from 7 September 2006 to 27 April 2012. The appellant is said to have collected copies of the proceedings from the Registrar on 27 April 2012 and instituted the present appeal on 7 May 2012 therefore within the prescribed period. Prior to that, this Court (per Kileo, JA) granted leave to the appellant for extension of time to file an application for leave to appeal (P-427 of the record). All the foregoing considered, it was Mr. Rutagatina's 11 averment that his appeal is within time and therefore, the preliminary objection raised should not be sustained. The above sequence of events analysed it is evident that although it is correct that the judgment of the High Court, which is a subject matter of this appeal, was delivered on 6 September. 2006 and further that the Notice of Appeal was filed after two years and two months thus appearing on the face of it to be time barred, the appellant's averment, supported by the record are exonerated. All in all, the record clearly establish that the applicant did apply and was granted extension of time within which to file his notice Of appeal. Further, and as per proviso to Rule 90(1) of the Rules, he did apply to the Registrar and obtained a certificate of delay covering the period from 6 September 2006 to 27 April 2012. He then instituted his appeal on 7 May 2012, thus within the prescribed period. Copies of the material correspondence were served on the respondents, thus complying with Rule 90(2) of the Rules. We see no reason to fault the appellant's version. Therefore the firstpoint of preliminary objection is not sustained. 5 The second point of the preliminary objection hinges, in our view, on the findings of the Court on the first point. Had we found that the notice of appeal is time barred, then the second point would stand as the appeal becomes incompetent. However, the converse is the position. Accordingly, the preliminary objection raised herein has no merit. It is dismissed in its entirety. 18th day of October 2013 DATED at DAR ES SALAAM, this J. H. MSOFFE JUSTICEOF APPEAL S. J. BWANA JUSTICE OF APPEAL S. MJASIRI JUSTICE OFAPPEAL I certify that this is a true copy of the original. - '-.-- --- : .M.KENTE I REGISTR COURT OF APPI vv- --