20040819 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: NSEKELA, J.A., MSOFFE, J.A. And KAJI. J.A.) CIVIL APPEAL NO. 41 OF ~ ,,,. BETWEEN ( . SOSPETER RUGINA ........... ,.......................................... APPELLANT AND TANZANIA CIGARETTE COMPANY LTD . ...................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (Ihema, J.) dated the 2 nd day of July, 1999 in Civil Case No. 206 of 1996 RULING MSOFFE, J.A.: When th~ appeal came on for hearing the Court had to deal first with a preliminary objection notice of which was given earlier. The objection is based on two grounds, first that the notice of appeal was not served on the respondent within the time required by the law, and second that the record of appeal was not served upon the respondent within the time required by the law. Mr. Marando, learned advocate, argued the objection on behalf of the respondent. On the other hand, Mr. Ngeleshi, learned ' 1 2 advocate, appeared on behalf of the appellant. At first, Mr. Ngeleshi sought to oppose the objection but on reflection he readily conceded to the said objection. In arguing the first groun·d Mr. Marando pointed out that the appellant's letter dated 9/7/1999 in which he applied for copies of the proceedings, ruling and the drawn order, was duly served on the respondent on 12.7.1999. However, he went on to say, the Notice of Appeal lodged on 12.9.1999 was not served on the respondent - thus offending the provisions of Rule 77(1) requiring that such notice be served upon a respondent within seven days after lodging the notice. In response, Mr. Ngeleshi at first took the view that on 12.7.1999 the appellant himself sent copy of the above letter and the notice to the respondent who duly stamped the letter but did not . stamp the notice. He submitted that much in an attempt at showing that there was good service on the respondent. However, in the absence of concrete evidence to prove the alleged service, Mr. Ngeleshi, as earlier stated, eventually conceded that in law there was no service. Rule 77(1) is mandatory. It requires an -intending appellant to serve copies of the notice of appeal on all persons who seem to be directly affected by the appeal. It also requires that the service be effected within seven days of lodging the notice with the Registrar of ... 3 the High Court. Indeed this Court has always reiterated this requirement of the law in a number of decisions notably Salum Sunderji and Capital development Authority v Sadrudin Shariff Jamal (1993) TLR 224, Stephen Wasira v Joseph Warioba (1997) TLR 205, Francis Itengeja v Kampuni ya Kusindika Mbegu za Mafuta (1997) TLR 148, Mohamed Ahmad and three Others v Inspector Sylvester Nyambache - Civil Appeal No. 61/1997 (unreported) and Vinodbala G. Vassa v Betty Mbapa - Civil Application No. MBY 6/2000 (unreported). In this case the notice of appeal which was lodged on 12.7.1999 ought to have been served on the respondent within seven days of the lodging of that date. Apparently that was not done. Hence it is correct to say that the appeal is not properly before the court because an essential and mandatory step has not been taken. We feel we should also say something about Mr. Ngeleshi 1s earlier assertion that the appellant took the notice in person to the respondent on 12.7.1999 to suggest that there was good service. In our view, in the absence of evidence in the form of an affidavit or otherwise from either the appellant himself or anyone from the respondent1s office to confirm the allegation, it was quite obvious that the allegation remained unsubstantiated and could not, therefore, be acted upon by this Court. However, our discussion of the point is only-academic in the light of Mr. Ngeleshi1s concession. • 4 In view of the position we have taken on the first ground there will be no need to discuss the second ground of the objection. Consequently we sustain the respondent on the objection and accordingly strike out the appeal. We make no order as to costs because Mr. Ngeleshi appeared on a legal aid brief. DATED at DAR ES SALAAM this 19th day of August, 2004. I certify that this is a true copy of the original.