Salehe Hassan Mjinja

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. J.A.. FIKIRINI 3.A., And, M LAC HA, J.A.^ CIVIL APPEAL NO. 508 OF 2023 SALEHE HASSAN MJINJA............................... .................... .......... APPELLANT VERSUS VOCATIONAL EDUCATION AND TRAINING AUTHORITY (VETA)........... ........................ ........... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maanqa, 3.1 dated the 31st day of October, 2022 in Miscellaneous Labour Application No. 302 of 2022 RULING OF THE COURT 1st & 19th November, 2024 LILA. 3A: The hearing of the appellant's appeal against the High Court, Labour Division's decision in Misc. Labour Application No. 302 of 2022, refusing to grant extension of time to file revision, met a snag as its competence was a subject of a notice of preliminary objection lodged on 28/10/2024 by the respondent pursuant to the provisions of Rule 107(1) of the Tanzania Court of Appeal Rules, 2009 (henceforth the Rules). The notice comprises two points of iaw. Both are in respect of non-service of documents on the respondent relating to the process of initiating an appeal. The grounds of objection are that: - 1. The appeal is untenable In law for the appellant's failure to serve the notice o f appeal within 14 days as required by Rule 84(1) o f the Tanzania Court o f Appeal Rules, 2009. 2. The appellants appeal is time barred and thus offending the mandatory provisions o f Rule 90(1) (3) o f the Tanzania Court o f Appeal Rules, 2009, These brief background facts suffice to appreciate the essence of the appellant's appeal to this Court. He was employed by the respondent as a Laboratory Instructor on 15th August 2002 and was stationed at Mtwara RVTSC. Soon thereafter, he was promoted to the position of Senior Laboratory Instructor and Head of the section. He was, for reasons not relevant here, transferred to Dar es salaam RVTSC where he was terminated from employment on 21st January 2009. He preferred a labour dispute at the Commission for Mediation and arbitration vide CMA/DSM/TEM/74/2010 (the CMA) at Temeke on 1st March 2010 to challenge the termination. He was unsuccessful as the dispute was dismissed on 8th July 2010. According to the record, he resurfaced in 2020 when he filed a fresh dispute which was however dismissed for being res-judicata. He was aggrieved. Upon realizing that he was late to challenge that decision by way of a revision application in the High Court, Labour Division, he lodged an application, Misc. Civil Application No. 302 of 2022 for extension of time to file revision. The application was dismissed thereby denying him extension of time, hence the appeal before the Court. Before the Court, appeared Ms. Yusta Kibuga who advocated for the appellant and for the respondent were Mr. Allan Shija and Ms. Lilian Machage, both learned Senior State Attorneys. Mr. Shija's contentions in elaborating both grounds of objection were not only very brief but also focused. Starting with the first ground, his contention was that, as opposed to the imperative requirement of Rule 84(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to serve copies of notice of appeal on all persons who would be affected by the appeal within fourteen (14) days of its lodgment in court, the appellant, quite in breach of it, did not completely serve the respondent with the same. It being a violation of the law, he pressed for the appeal to be struck out, the course the Court took in Boniface Anyisile Mwabukusi vs Atupele Fredy Mwakibete and Others (Civil Appeal No. 46 of 2021) [2021] TZCA 459 (6 September 2021), John Nyakimwi vs Th Registered Trustees of Catholic Diocese of Musoma (Civil Application No. 85 of 2017) [2019] TZCA455 (3 December 2019), John Cassar Torreggian Inc. vs Tanzania Tourist board and Another (Civil Appeal No. 523 of 2020) [2024] TZCA (13 February 2024) and D. P. Valambia vs Transport Equipment Ltd [1992] TLR 246. Elaborating on the second ground of objection which related to non­ service of the copy of the written letter requesting the Registrar of the High Court to supply the appellant with the copy of proceedings and judgment for appeal purpose, Mr. Shija argued that white it is evident on the record of appeal that the appellant wrote such a letter on 9/11/2022, the copy of the same was not served on the respondent in terms of Rule 90(3) of the Rules. As a consequence, he beseeched the Court to hold that the appeal is time barred as the appellant cannot rely on the exclusion of days the Registrar spent in preparing the documents thereby requiring the appellant to file the appeal within sixty (60) days from 8/11/2022 when the notice of appeal was filed as provided under Rule 90(1) of the Rules which the appellant failed as he filed the appeal on 13/9/2023, about ten (10) months later. Relying on the Court's decisions in Augustino Mkalimo vs Village Schools of Tanzania and Others (Civil Appeal No. 154 of 2019) [2021] TZCA 150 (30 April 2021), Juma Busiya vs Zonal Manager, South Tanzania Postal Corporation (Civil Appeal No. 273 of 2020) [2021] TZCA 522 (27 September 2021), Filon Felician Kwesiga vs Board of Trustees of NSSF (Civil Appeal No. 136 of 2020) [2021] TZCA 424 (27 August 2021) and Mariya B. Mariya and Others vs Kapunga Rice Project (Civil Appeal No. 359 of 2019) [2021] TZCA 88 (31 March 2021), he urged the Court to strike out the appeal. Much as Ms. Kibuga readily conceded that there was no evidence on record proving service on the respondent, of the copy of notice of appeal and copy of the letter requesting the Registrar of the High Court to avail him with appeal documents, she stoutly challenged Mr. Shija's contentions on both grounds of objection. She sought indulgency of the Court on the respondent's conduct to deduce the fact that service of the notice of appeal was dully effected. The circumstances she relied on are that the respondent lodged a notice of address for service on the respondent within fourteen days from the date the notice of appeal was lodged in Court which signifies that the respondent was served with a copy of the notice of appeal in terms of Ruie 84(1) of the Rules. Otherwise, she argued, there is no way that the respondent would have complied with the provisions of Rule 86(1) of Rules. In her further arguments, she was emphatic that the appellant served both the copy of notice of appeal and a letter requesting for appeal documents by way of Expedited Mail Services (EMS) on 9/11/2022 after lodging the notice of appeal on 8/11/2022. Although she conceded that the copy of the receipt thereof was missing in the record of appeal for a reason that the appellant had misplaced the same, she was firm that it is the EMS which moved the respondent to lodge address for service on 21/11/2022 well within fourteen (14) days from 9/11/2022 when service of both documents by EMS was effected on the respondent. She attributed the failure also on the appellant being a layperson which should be considered by the Court and dismiss the objection raised. Mr. Shija rejoined by reiterating his earlier submissions and insisted that Rules 84(1) and 90(3) as they are, require that there must, on record of appeal, be proof of service on the respondent of the notice and letter requesting for appeal documents. He discounted Ms. Kibuga's contentions as mere verbal assertions. Even if service was by EMS, he argued, nothing is on the record to prove so referring to the case of Benita Cassar Torreggian Inc. vs Tanzania Tourist Board and Another (supra). As for the respondent lodging address for service if there was no service of notice of appeal, Mr. Shlja maintained that it could not be implied that there was service of notice of appeal on the respondent as the law requires physical proof of service by exhibiting endorsed copies thereof acknowledging receipt. Both grounds of objection and oral arguments by counsel of the parties before the Court, challenge the competence of the appeal and they raise a common issue of whether there was proper service on the respondent of the notice of appeal and a letter requesting for copies of appeal documents. And on this and in our view correctly, Ms. Kabuga was right, without hesitation, to concede that there is nothing tangible on record proving service. It was her firm view, however, that proof of service can be deduced from the respondent's conduct of lodging a notice of address for service within the prescribed period of fourteen days which service she contended was effected by EMS for which the appellant had misplaced the receipt to prove so. In addressing the issue, we start with the first limb by stating the law governing service of notice of appeal. Rule 84(1) of the Rules which is relevant here, in clear words provides: - "84(1) An intended appellant shall before, or within fourteen days after lodging a notice o f appeal, serve copies o f it on all persons who seem to him to be directly affected by the appeal; but the Court may, on an ex parte application, direct that service need not be effected on any person who took no part in the proceedings in the High Court.'[Emphasis is ours.] Seizing the opportunity in the case of Sao Hill Industries Ltd vs Edigary Telesphory Mwaifyeya, Civil Appeal No. 15 of 2014 (unreported), the Court lucidly expounded the import of the quoted Rule thus: - "In the scheme o f the Rules the appeal process is triggered by a notice o f appeal. That is the spirit behind the provisions o f Rule 83 o f the Rules. Once a notice o f appeal is lodged the intended appellant is mandated under Rule 84(1) thereto to serve copies o f it "on ail persons who seem to him to be directly affected by the appeal” within fourteen days after lodging the notice o f appeal. In this case, it is common ground that the Respondent was not served with a copy o f the notice o f appeal in dear contravention o f the above stated Rule. Faced with this situation, both Mr. Ngoda and the Respondent are agreed that the only remedy open to us is to strike out the appeal on account o f the fact that an essentiai step in the appeai process was not taken." Guided by the above exposition of the law, in complying with the Rule, an intended appellant is obligated to prove service of the notice of appeal. The practise has been to ensure that the copy of a notice of appeal served on the respondent is returned with endorsement of the respondent or its legal representative and the date of service. Such served notice usually forms part of the record of appeal. In the present case, it is uncontroverted that it does not form part of the record of appeal. It therefore becomes obvious therefore that proof of service is a matter of cogent evidence and cannot be implied as Ms. Kabuga tries to move the Court to so agree. In the event, we agree with the learned Senior State Attorney and proceed to hold that there was no service of the notice of appeal on the respondent quite in contravention of the provisions of rule 84(1) of the Rules. In both Boniface Anyisile Mwabukusi vs Atupele Fredy Mwakibete and John Nyakimwi vs The Registered Trustees of Catholic Dicese of Musoma (both supra) cited by Mr. Shija and in Sao Hill Industries Ltd vs Edigary Telesphory Mwaifyeya (supra), the Court held the omission to be fatal and unable to be rescued by invocation of the overriding objective principle and the Court went ahead to strike out the appeal. The second limb is on the failure by appellant to serve on the respondent a letter requesting for supply of appeal document. Like in the first ground of objection, Ms. Kabuga readily conceded absence of proof of service on the record of appeal. To appreciate the gist of the respondent's objection, we start by reproducing the law relevant in service of a letter for applying appeal documents by the Registrar of the High Court. Rule 90(1), (2) and (3) of the Rules read as follows: - "90(1) Subject to the provisions o f rule 128, an appeal shaii be instituted by lodging in the appropriate registry, within sixty days o f the date when the notice o f appeal was lodged with- (a) a memorandum o f appeal in quintupiicate; (b) the record of appeal in quintupiicate; (c) security for the costs o f the appeal, save that where an application for a copy o f the proceedings in the High Court has been made within thirty days o f the date o f the decision against which it is desired to appeal, there shall, in computing the time within which the appeal Is to be instituted be excluded such time as may be certified by the Registrar o f the High Court as having been required for the preparation and deiivery o f that copy to the appellant 2) The certificate o f delay under rules 45, 45A and 90(1) shall be substantially in the Form L as specified in the First Schedule to these Rules and shall apply mutatis mutandis. (3) An appellant shall not be entitled to reiy on the exception to sub-rule (1) unless his application for the copy was in writing and a copy o f it was served on the Respondent" It is a requirement under the Rule, as was rightly argued by Mr. Shija, that an intended appellant has to lodge an appeal within sixty (60) days of the lodgment of a notice of appeal unless there is exclusion of days spent in the preparation of the appeal documents as would be indicated in the certificate of delay issued by the Registrar of the High Court or extended by an order of the Court. The certificate of delay is issued only upon a written application of the appeal documents a copy of which, in terms of Rule 90(3) of the Rules, must be served on the respondent. Insisting on the requirement for the letter requesting for appeal documents to be in a written form and its significance, the Court li in Mariya B. Mariya and Others vs Kapunga Rice Project (supra), stated that: - "In the absence o f the letter requesting for the proceedings, judgment and decree as required by Rule 90 (1) and (3) o f the Rules, the appellants cannot benefft from the exception to Rule 90(1) o f the Rules. Rule 90(3) o f the Rules makes it mandatory for an application in written form to be served on the respondent" While it was not controverted that the respondent was not served with a copy of the letter and the notice of appeal, Ms. Kabuga, who was close to conceding to the consequences that the appeal is incompetent and ought to be struck out, asserted that the appellant had informed her that, on 9/11/2022, through EMS, he served the respondent with both documents. Such a contention raises two very pertinent issues calling for this Court's deliberation. Obviously, the first issue is whether service by EMS constitutes a valid and proper service under the Rules and secondly, if the answer to the former issue is in the affirmative, whether there is evidence that the respondent was duly served with it. Generally, Rules 84(1) and 90(2) and (3) of the Rules obligates an intending appellant to serve the respondent with copies of a notice of appeal and a letter requesting for supply of requisite appeal documents within the respectively specified span of time and in terms of the cited authorities by the learned Senior State Attorney, failure to do so renders an appeal incompetent liable to face the wrath of being struck out. The purpose of service is to put the respondent on guard of an intended appeal. The question that has exercised our minds considerably is whether service of the two documents and other documents which the law or the Rules require to be served should be physically served. Fortunately, we found comfort when our eyes landed on the provisions of Rule 22(1), (2), (6), (7), (8) and (9) of the Rules which provide: - "22(1). Subject to the provision o f these Rules, where any document is required to be served on any person, service may be effected in accordance with the procedure and practice of the High Court under the provision o f the Civil Procedure Code read together with the provision o f these Rules or such other way as the Court may in any case direct" In the absence o f any special direction-f service shall be made personally on the person to be served or any person entitled under rule 30 to appear on his behalf, but where a party to any proceeding has , given an address for service service may be effected by delivery at that address. Where the person to be served is in prison, service may be effected by transmitting the document to the officer in charge o f the prison for delivery to the prisoner, and service on the prisoner may be proved by a letter purporting to be signed by the officer in charge o f the prison and certifying that the document was delivered to the prisoner on a specified date. Where any document is required to be sent to any person, the document may be sent by hand or by registered post to the person or to any person entitled under Rule 30 to appear on his behalfand notice o f the date fixed for the hearing o f an application or appeal or for the delivery o f judgment or the reasons for any decision may be given by telephone or telegram . Where by these Rules a party is required to serve any document on another party within a limited time, and by virtue o f this rule or any other written law or order o f the Court that document is required to be served by or through a process serve or other officer o f any court, the party shall be deemed to have served the document in due time if within the time limited for service he files the document in the Registry together with any necessary copies and a requisition for service and pays ail fees and charges payable in respect o f it, but if the party is required to assist the officer by identifying the person to be served or otherwise, he shall do so with all due diligence and in default o f so doing shall be deemed to have failed to serve the other party in due time." (emphasis added) In view of the provisions of the Rule, it is clear to us that service of documents is done in accordance with the procedure and practice of the High Court as provided under the provisions of the Civil Procedure Code (the CPC) read together with the provisions of the Rules or such other way the Court may direct. The Rule makes it clear that service can be made physically, that is personally on the person to be served [Rule 22(2)] and by sending the document by hand [Rule 22(8)] or by registered post [Rule 22(8)]. Courts which are meant to serve the society which is not static, cannot be ready to be left behind in the fast technological advancements and inventions of other modes invoked in transmitting information and services of luggage including documents such as courrier services, EMS 15 inclusive. The court proved so, for instance, in a highly persuasive decision by the HighCourt of Tanzania made a long time past in Willow Investment vs Mbomba Ntumba and Two Others [1997] TZHC 2; (06 February 1997); 1997 TLR 47 (TZHC), where, when faced with an issue whether, under the CPC which expressly recognizes service of summons by post under Order V Rule 21 (1), service by DHL was sufficient service, categorically stated that: - "In regard to the third ground o f appeal Dr. Mwaikusa makes the substantial point, and Mr. Shinganya concedes, that service by DHL is essentially service by post, and, accordingly, the provisions o f rule 30 o f Order 5 o f the CPC are applicable. The rule provides that service by post may be deemed to have been duly effected if (a) the summons is returned by the defendant endorsed with an acknowledgment o f receipt; or (b) a letter or other document is received from the defendant indicating that he received the summons; or (c) evidence is produced that a postal packet was received by the defendant, supported by a certificate o f an order o f the court that the postal packet contained the summons. Dr. Mwaikusa points out, correctly, that no such summons or document 16 was received from Zaire and no such evidence was presented to this Court before the order for ex- parte proof was given. This is a powerful submission and must be accepted." In view of the position the High Court took, which we endorse as good law, we see no reason not to hold that service by EMS is also an acceptable manner of service of documents provided that the conditions set above are met. We accordingly affirmatively answer the first issue that the mode of service adopted accords with the procedure for service. That takes us to the next issue whether service was effectually done which, obviously is a less involving issue. Since Ms. Kabuga frankly conceded that there was nothing on the record to prove that the appellant invoked EMS as a mode of service on the respondent of the notice of appeal and the letter requesting for supply of requisite appeal documents in terms of Rule 90(3) of the Rules, it is plainly obvious that, in the situation at hand, her contention of service being effected through EMS is bereft of any truth and amounts to an admission that there was no service on the respondent. We find support from our earlier decision in Mariya B. Mariya and Others vs Kapunga Rice Project (supra) where, in an almost akin situation, the letter was not served on the respondent and the appeal was found to be time barred. The appellant cannot, therefore, benefit from the exclusion of days certified by the Registrar of the High Court in the certificate of delay which excluded a total number of 280 days reckoned from 15/11/2022. Without excluding such period, the appellant, as correctly contended by Mr. Shija, ought to have had lodged his appeal within sixty (60) days from 31/10/2022 when the impugned decision was delivered, hence latest 1/1/2023. The record bears testimony that the appeal was lodged on 13/9/2023, hence time barred. Time bar is a jurisdictional issue which, if proved, fetters the Court's mandate to entertain the matter with the obvious remedy being to strike out the matter [See Civil Appeal No. 364 of 2019, Faw Africa Investment Co. Limited vs Mohamed Enterprises (T) Limited (unreported)]. Albeit briefly, there appears to be an argument that the applicant's ignorance be considered in deliberating the matter. In few words, we reiterate what we stated in the case of Omar Ibrahim vs Ndege Commercial Services Ltd, Civil Application No.83 of 2020 (unreported) that neither ignorance of the law nor counsel's mistake constitutes good cause for not complying with the requirements of the laws. The argument collapses, therefore. is In the end, we sustain both points of objection. Consequently, the appeal is hereby struck out. All the circumstances considered including the matter having arisen from a labour matter, we make no order for costs. DATED at DAR ES SALAAM this 15th day of November, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 19th day of November 2024 in the presence of the Appellant in person and Stephen Kimaro, learned State Attorney for the Respondent is hereby certified as a true copy of the original.