19981216 TZCA Dar es Salaam2

• • ., IN THE COURT OF APPEAL OF TANZANIA AT DARES SALAAM CCORAM: / dnrlL APPEAL NO. 83 OF 1998 BETWEEN SEBASTIAN PUKIZA KLNYONDO APPELI.NT AND DR. 1VDAPD MUTALENWA MUTUNGI ......... RESPONDENT (Appeal from the Judgement and Decree of The High Court of Tanzania at Bukoba) ( JLt) dated the 27th May, 1998 in Miscellaneous Civil CauseNo. 12 of 1995 RULING 'F THE COURT a. LUBUV A.,_, J.A.. This appeal arises from an election petition filed in the High Court at Mwanza Miscellaneoths Civil Cause No. 12 of 1995. During the 1995 General Elections, the appellant Sebastian RukizaKnyondo, one among other candidates for the Bukoba Rural Constituency was declared to be the elected member of Parliament. Dr. Medard Mutungi being dissatisfied with the results filed the petition. As a result the High Court (Lugakingira, J.) declared the Parliamentary Election of 1995 in Bukoba Rural constituency null and void. Hence this appeal. At the commencement of the hearing of this appeal Mr. Magfu, who,, together with Mr. Swai, learned Counsel, appeared in this appeal for the respondent raised a preliminary objection. Earlier, before. the appeal was called on for hearing Mr. Magafu had filed a notice b f" preliminary objecton in terms of the provisions of rule 100 of the Court's Rules, 1979, hereinafter referred to as the rules. The preliminary objection was based on the following two ground: The appeal is incompetent for the appellant (sic) failure to serve the Notice of Appeal to the respondent within the prescribed period. This Honourable Court has no jurisdiction to entertain ground no. I of'the appeal as that ground was not raised and conside- red by the High Court during the trial. Dealing with ground one of the preliminary objection Mr. Magafu submitted that the appeal was incompetent because the appellant did not serve the respondent with the copy of the notice of appeal within seven days after the notice of appeal was lodged. This, he contended,' was in contravention of rule 77 (1) of the Rules. Elaborating on this, Mr. Magafu set out the sequence of events as follows: That judgment in the High Court (sitting at Bukoba Miscellaneous Civil Cause No.12 of 1995 was delivered on 27.5.1998. The notice of appeal was filed on the same day i.e. 27,5,1998 and that the respondent was not served with the copy of the notice of appeal until 15.6.1998._- According to Mr. Nagafu the only available evidence in support of the claim that the respondent was served on 15.6.1998 was his (Magafu) diary in which the name Magfu is entered against the date 156,1998. That after the respondent had been served With the copy of the notice of appeal, the respondent signed the dia±'yof the appelIañts advocate. On this ground of preliminary objection the issne is simple, namely., whether the notice of appeal was served within seven (7) days as prescribed under rule 77 (1) which, in part, provides:-' - , . 77 (1) An intended appellant shall_eoè within • a notice of appeal, serve copies. • of it an ll persons who seem to him directly affected by the appeal (emphasis supplied) It is apparent therefore that it is a mandatory requirement for the appellant to serve the respondent with a. copy of the notice of appeal within seven days of the notice Of appeal The Court however, has the discretion to •extend the time in which to serve the notice where sufficient reason is shown. In this case, Mr. Magafu for the xesponden.t strenuously contends that the respondent was served with the notice of appeal on 15.6.1998. On the other hand, Mr. Galati lea: fled counsel who l together with the lead cotmsel, Mr. Rweyongeza, appeared for the áppèllant, vehemently opposed the preliminary object.ioñ With regard to the notice o f appeal, Mr. Galati maintained that the notice of àpeal which was lodged at the High Court sub- regietry at Bukoba on 27.5.199 8 was also served on the sai$dèy i.e. 27.5 0 1998personally on the respondent 1 Dr. Medard;Mitungi. He submitted further that Dr. Mutuñgi, the resondent signed the dispatch book of Galati & Co. Advocates after he was served the copy of the notice of appeal. The signature by Dr. Mutungi, Mr. Galati urged, was sufficient evidence on the respondent. Upon close scrutiny of the dispatch book and prompting by the Court, Mr. Galati concedes that no date was shown against Dr. Mutungi's name. This, Mr. Galati went on in h -Is submission, was due to in- advertence on the part of his office. In these circumstances it seems to us that even if it is accepted that Dr. Mutungi appended his signature to the name Dr. Mutungi there is no cogent evidence to show that the respondent was served on 27.5.1998. In the absence . , , -4- of the date being shown 4 we do not think that the alleged sig.iature of Dr. Mutungi is by itself conclusive evidence of service beIng effected on the respondent on 27.5.1998 and not 15.6.1998. What is more, upon being shown the dispatch book in court, it appeared to us that.the words indicating subject matter of the dispatoh in question, namely, notice of appeal are written in differenc hand writing. In these circumstances, the appellant's claim that the respondent was served withthe copy of the notice on 27.5.1998 is,. to our minds, highly suspicious. In the upshot therefore, with regard to ground one of the preliminary objection, the issue concerning the service of the copy of the notice of appeal turns on the word of one person againt the other. The respondent says service was effected on 15.6.1998 while the appellant claims it was on 27.5.1998. Neither of them as already indicated, has adduced plausible evidence in support of the date claimed. Consequently both the respondent, the objector, and the appellant have in our view, failed to discharge the evidential burden to prove service of the copy of the notice of appeal on the respondent. It must however be pointed out at once that in holding this view, we are quite live to the settled principle that he who alleges must prove. In the case before us, it is the respondent who alleges that he was not served with the copy of the notice of 4 appeal within seven days of thenotce of appeal. On this aspect, the respondent, the objector in the preliminary objection, has a 4. greater burden to discharge than the appellant. That burden in our estimation, the respondent, the objector, has failed to discharge to the required standard i.e0 on a balance., of proabilities. That disposes of ground one of the preliminary objection:. ... '/5. - - We now turn to grouid two. Mr. Magafu forefu].iiy submitted that the question of limitation and jurisdiction of the High Court cannot be entertained at this stage on appeal because it was not raised at the trial and the court of first instance did not address or meke a decision on it. He went on in his submissioH 1 on 27. , 1998, at the trial the parties were given the op7ortunity to prepare written submissions. In the written submissions, he said, this issue was not raised at all. Instead,. hr. haafu stated, objection was raised in respect of verification and not J- urisdiction and limitation. To entertain this issue at this stage, Mr. hagafu insisted, is a violation of Iule 86 (.1) of the Court's Rules, In thst rule, Mr. Magafu further elaborated, it is a mandatory requirement that a memorandum of appeal should set out the grounds of objection to the decision apealed against, specify the points which are alleged to have been wrongly decided. In this case, h said, the question of jurisdiction and limitation not having been.raised, was therefore not decided by the High Court thus does not fall within the score of rule 86 (i) Mr. Magafu was quick to point out that the case of Hon. Wilbroad Siaa and the Hono Attorney General, versus Arusha Kaiwa and 5 others, Civil Aopeai No. 28 .f .1998 (unreported) 18 distinguishable from this ca6e. In his submission, while in the case of Dr0 Slaa (supra) the issue of jurisdiction and lmitation was raised ariddecidedai the trial, in this case the issue was neither raised nor decided on. He urged the Court to sustain the preliminary objection on this ground with the result that greund one of the memorandum be struck cut. Vigorously opposing the preliminary ob.jectin on this ground, Mr. Rieyoneza, learned counsel for the appellant, urged that the bbjecton was rnisneive.d He said, this. Court has powers which enabies it to step into the shoes of the High Court -tJ -• so as to deal even with issues which were not dealt with by the High Court, In support of this proposition, he cited the case o.f, Azm remJl versus Mian Walid abourou, Civil Appeal Io, 32 of 1994 (unreported) In the instant case, it was Mr. Rweyoigeza' s contention that the High Court assumed wrong jurisdiction in dealing with the election petition case when the time prescribed under section 115 (2) as amended hyAct No0 3of 1997 had expired, He further submitted that the question of jurisdiction is so fundamental that any error pertaining to jurisdiction should be corrected by the Court of Appeal irrespective of whether or not the matter was decided by the High Court, Fiially, Mr. Pweyorigeza urged the Court to exercise its revisional jurisdiction to correct the error if this submission on this ground is not sustained. Mr. Kabonde, learned Senior State Attorney appeared at the hearing of the appeal as a friend of the court - arnicus curiae. In his brief submission he more or less made a repeat of what had been submitted by Mr. Pweyongeza. He was firmly of the view that if the High Court had assumed wrong jurisdiction in determining the eec tio1 petition, the Court has wide powers to deal with the imatter either on appeal or revision. With such wide powers he adced, it does not matter whether the point of law involved was raised at the trial court, the Court of Appeal can competently deal witIit. For this proposition Mr. Kabonde made a ' vain effort to cite a case which he prornised to avail to the Court later after consulting his office in Mwanza. Even±uallj, he furnished the case of Anwarz. Mohamed versus Said Selemani Masia, Civil Peference No, 18 of 1997 (unreported). The issue for determination in this matter is whether ground one of the memorandum of appeal in this appeal can be entertained. 00 In addressing this issue, it is imperative to make it álCar from the outset that this Court is an appellate Court which deals essentially with appeals0 The Court istherefore a creature of statute in which its jurs4iet ion and powers are prescribed and the procedure for the ;rocossing of aipeals is as well provided for under the Rules of the Court. As against this factual situation q the question is whether in this appeal, the issue of jurisc'iction and limitation, the subject matter of grund one of the memorandum of appaJ can be raised in this arpeal. As pointed out earlier, Mr. Nagafu has forcefully argued that it cannot because it wab not dd.ressed and decided by the High Court as the court of first instance0 With respect, we think there is merit in Mr. Magafu's submission. The filing of a memorandum of appeal is one of the esrential steps to he taken towards the institution of an arpeal. Rule 86 (1) of the Court's Rules provides for the format and scope ofthe memoandum of appeal. In part s rule 86 (1) provides- A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the Court to make. (emphasis supplied) From this provision of Rule 86 (1) it is clear that in order for a subject matter to qualify for appeal purroses, it should comply with the requirement of the iule. That is, in the first place, the matter should pertain to the decision of the court against which the appeal is preferred 0 Scondly, the memorandum of appeal 0 0 • 0/8 - 8 - should also specify the points wiüch are alleged, to have been wrongly decided. In the instant case 9 we agree with 'ft. Magafu that the question of jurisdiction and, limitation was not raised and as a result, it was not decided by the High Court0 On this, if we understood Mr. Rweyongeza properly, he also conceded that the issue was not raised at the trial0 As he put it himself, the lssue sosehow featured at the trial when dealing with the amendment to the pleadings. Otherwise, the issue d.id not arise. In the circums•- tances, as there was no decision of the High Court made on the issue of jurisdiction and limitation, it follows that there is no foundation upon which points which are alleged to have been wrongly decided could be specified in the memorandum of arpeal. Consequently, in the absence of a decision by the High Court on this aspect, we are settled in our minds that the issue of jurisdiction is not, in the circumstances, subject to the memorandum of appeal in terms of Rule 86 (1) of the Court 9 s Rules, If the subject matter in ground one of the memorandum of appeal does not fall within the score and perview of rule 86 (1) .n what basis can it •be dealt with in this appeal. Mr. Rweyongeza valiantly submitted that because t,he issue of jurisdicten is so fundamental, the Court has powers to deal with it We agree that the question of jurisdiction is fundamental but as already observed, the Court carries out its work in terms of laid down rules governing appeals. It is common ground that all appeals including those touçhing.on constitutions.l issues have to comply with the require- ments of the rules. In the case of Leonsi Sllayo Ngalai versus Hon. Justine Alfred Salakana and Attorney General, Civil Appeal No, 38 of 1996 (unreported) this Court, erhasized the importane of 1 -- adhering to the rules governing appeals even where a constitut'.onal right is involved. That case involved an election petition in which, anont others, the question of jurisdiction and leave to appeal was raised The Court held to the effect that in an appeal against the decision of the High Court in an election petition case a party may appeal as a matter of right to the Court of Appeal. Howeve', as rgards the need for complying with the rules governing appeala, the Court inter alia, stated:., For the avoidance of doubts, we must emphasize, that this right of appeal, like all other rights of appeal t0 thi:s Cotirt, has to be exercised in accordance with the procedural rules regulatIng appeals to. this Court, The rationale behind the need for complying with the Court's rules in regulating appeals is not far to seek. If appeals are not dalt with strictly in accordance with the rules, we apprehend the 'danger of turning the appeal court into a court of first instance where issues are to be tried subject to the rigour of cross examination by affected parties before a decision is arrived at,. Furthermore, non-compliance with the rules would, in our view, tempt some of the parties to raise iSsues at the appeal stage which for some reason were not, raised at the trial 9 We think for an effective appeal system geared towards aproper system of adininistez'- ing justice tendencies of this nature should be deprecated. J As regards the caâes cited to us in support of the proposition that issues touching on jurisdiction can be raised on appeal even If they were not raised at the trial, we intend to briefly make observation on two of them. We agree with Mr. Magafu, learned counsel that the case of Dr. Wilbroad Slaa (supra) is distinguishable . -II-- from this. In that case, the question of jurisdiction was in issue from the commencement of the trial, it was a subject of decision by the High Court against which the matter came on appeal to this Court... Likewise, the case of Azim Premji versus Aman Walid Kabou.rou, Civil Appeal No0 32 and +2 of 1994, (no.t yet reported) does not in our view, advance the appellant's case any further. In that case which also involved an election petition, unlike the situation in this case, the contended issues on appeal were, among others, the question of citizenship which was an issue at the trial and was decided upon0 However the question of citizenship was not one of the grounds of appeal but the Court raised it suo motu, invited arguments on it and made a decision. In this case, the situation j: different, the issue did not arise at the trial and so, there is no legal basis upon which it can be specified in the memorandum of appeal as a point which is alleged to have been wrongly decided by the High Court. And so, these two cases are not, in our opinion, on all fours with the instant case0 Finally, we turn to Mr. Iweyongeza' s invitation to the Court to invoke its powers of revision. On this, and with respect to the great industry on the part of the learned counsel, we hardly need to dwell for long0 For the reasons we have. endeavonred to give, namely that in a case such as this where the appellant was ably represented by counsel at the trial the issue was not raised at all despite the prompting by the trial judge, we are not inclined to exercise the Court's powers of revision.. In the event,, we dismiss ground -One of the preliiinary objection. Ground two of the pr.eliminaiy objection is allowed with consequential result that ground one of the memorandum of appeal is struck out. COsts in the cause. '0 &O D/11 - ..., . .,. .. yk * . 41 DATED at DAR ES SALAA1 this 16th- day of décembe±, 1998 B. A SAMATTA 0 JUSTICE OF APPEAL - I -certify that this is .a true copy of the original. A.GMWAPIJA ) DEPUTY_REGISTEAR