20110308 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: MSOFFE, J.A.; MANDIA, J.A. And ORIYO, J.A.) BK.CIVIL APPLICATION NO. 143 OF 2010 SALVAND K. A. RWEGASIRA •••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS CHINA HENAN INTERNATIONAL COOPERATION GROUP CO. LTD............................................. RESPONDENT {Application to strike out the Notice of Appeal in Civil Case No. 5 of 2003 from the decision of The High Court of Tanzania at Bukoba) {Luanda, J,) dated the 6 th day of November, 2009 in Civil Case No. 5 of 2003 •.........•••• RULING OF THE COURT 25 th February & 11th March, 2011 MANDIA, J.A: On ih December, 2004 the High Court of Tanzania sitting at Bukoba (Luanda, J. as he then was) pronounced judgment in Civil Case No. 5 of 2003 in which the present respondent CHINA HENAN INTERNATIONAL COOPERATION GROUP CO. LTD lost. Aggrieved by the decision of the High Court, the respondent filed Civil Appeal No. 78 of 2005 in this Court. \' th ,, On 16 July, 2009, this Court struck out Civil Appeal No. 78 of 2005 for being incompetent, the reason being that the date of judgment differed with the date on which the decree was signed. The respondent thereafter filed Civil Application No. 29 of 2009 in which he prayed for extension of time to file and serve a notice of appeal. On 6th November, 2009, the High Court of Tanzania sitting at Bukoba (Lyimo, J.) granted the application. On the same day the respondent served Notice of Appeal on the applicant, and also wrote a letter to the High Court in which he applied for certified copies of the proceedings, ruling, drawn order and decree for preparation of the memorandum of appeal and record of appeal. On 8th December, 2010 the respondent received the requisite documents from the High Court, as well as a certificate of delay which counted out the dates 6th November, 2009 to 8th December, 2010 for purposes of limitation. Two days after receiving · the requisite documents, the respondent filed Civil Application, No. 139 of 2010 in which he applied for extension of time to file a memorandum and record of appeal. On 15th December, 2010 the respondent served the applicant with the Notice of Motion pertaining to Civil Application Number 139 of 2010. One day later, that is, on 16th December, 2010, the applicant filed the present application in this Court in which he prayed that the respondent's Notice of Appeal filed on 6th November, 2009 be struck out. 2 The affidavit accompanying the applicant's Notice of Motion averred in paragraphs three and four and five that the respondent, having instituted the appeal, had failed to take essential steps for twelve months and was thus in breach of the Rules. The applicant therefore prayed that the notice be struck out with costs. Both the applicant and the respondent filed written submissions as required of them by Rule 106 (1) and (2) of the Court of Appeal Rules, 2009. In his submissions, the applicant admits that the respondent did indeed file a notice of appeal on 6th November, 2009. He also admits that the respondent applied by letter to the court for a certified copy of the proceedings, ruling and drawn order, and that this letter was copied to him. In fact the applicant gave additional information in his submissions which showed that on ih September, 2010 the respondent wrote to the court a letter reminding the court of his earlier application for documents to use in the preparation of the memorandum and record of appeal. It is the applicant's contention that the delay of eleven months between the first application and the reminder showed that the respondent was not serious with his appeal. 3 On his part the respondent argued that the chronology of events from the striking out of the incompetent appeal on 16/7/2005 i.e. Civil Appeal No. 78 of 2005, to the filing of Civil Application No. 29 of 2009 seeking extension of time to serve notice of appeal to the time when he wrote to the Court seeking the requisite documents all show that he has been diligent in prosecuting his appeal. The respondent appraised us of the fact that the Court gave a certificate of Delay for the period 6/11/2009 to 8/12/2010, and that immediately after receiving the requisite documents he filed an application for extension of time. The above narrative shows clearly that the respondent is outside the sixty days limit set for instituting appeals as laid out in Rule 90 (1) of the Court of Appeal Rules, 2009, but is relying on the exception to sub-rule (1) as amplified in sub-rule (2). In short what the exception provides is that an appeal should be filed within sixty days of lodging of a notice of appeal, but where a written application for the documents necessary in filing an appeal is made within thirty days of the decision to be appealed from, and the respondent is served with this written application, the time taken by the Court to prepare the relevant documents shall be excluded from 4 counting limitation, and that the Registrar shall issue the requisite certificate. On our part, we note that the applicant admits that the respondent has taken all the steps required of him in prosecuting his appeal, but takes exception to the respondent's attitude in leaving the matter to the Court after writing the application on 6/11/2009. In the applicant's view, expressed in his written submissions, the respondent should have been more aggressive in complaining about the delay by the court. We have taken note of this view, but are of the opinion that Rule 90 does not place any burden on the respondent to take part in the preparation of the record. What Rule 90 (1) requires an intended appellant to do is to apply in writing for a copy of proceedings within thirty days of the date of the decision he intends to appeal from. If he does that, and serves a copy of the letter on the Respondent, the intended appellant qualifies for the exception to the sixty day limitation period. Rule 90 (1) puts the duty to supply the proceedings on the Registrar, and if he fails to do so within the statutory sixty days, he issues the certificate of delay as mentioned earlier. Rule 90 (1) does not put any burden on an intended appellant to interfere in any 5 way with the duty of the Registrar to supply proceedings for purposes of appeal. In TRANSCONTINENTAL FORWARDERS LTD VS TANGANYIKA MOTORS LTD (1997) TLR p. 328, at p. 330 this court held thus:- ''I wish to say only that reminding the Registry after applying for. a copy of the proceedings etc and copying the request to the other party may indeed be the practical and realistic thing to do, but it is not a requirement of the law. Once Rule 83 is complied with the intending applicant is home and dry.,, The above-quoted authority was interpreting Rule 83 of the Court of Appeal Rules, 1979 which is in pari materia with Rule 90 of the Court of Appeal Rules, 2009, and is still good law. On the basis of the testamentary evidence and the submissions by both parties, we are satisfied that the respondent has taken the necessary 6 r steps as required of him. The application to strike out the notice of appeal has no merit and is hereby dismissed with costs to the respondent. DATED at DAR ES SALAAM this 8th day of March, 2011 J. H. MSOFFE JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. M.A. MALEWO DEPUTY REGISTRAR COURT OF APPEAL 7