20030925 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 78 OF 2001 In the Matter of an Intended Appeal BET-WEEN STANBIC BANK (TANZANIA) LIMITED .......... APPLICANT AND 1. JAYANT PATEL ] 2. ROZINA PATEL ] .......................... RE~P..O.Nt.;>l;~T:_S .-: .. ·' · - ·.. (Application for striking out Notice of Appeal from '\ I the Decision of the High Court of Tanzania at Dar es Salaam) • (Bubeshi, J.) dated the 27 th day of February, 2001 in Civil Case No. 161 of 1998 RULING NSEKELA, J.A.: This is an application by way of motion -by the- applicant, Stanbic Bank (Tanzania) Ltd. seeking for an appeal filed by the respondents (1) Jayant Patel and (2) Rozina Patel to be struck out in terms of Rule 82 of the Court Rules. The facts leading to this application are as follows. In High Court Civil Case No. 161 of 1998 the High Court (Bubeshi, J.) entered judgment in favour of the applicant on the 27.2.2001. Soon. thereafter, on the 9.3.2001 to be 2 exact, the respondents filed a Notice of Appeal against the whole of the decision and this was followed by a letter dated 13.3.2001 addressed to the Registrar, High Court, in which the respondents applied for a copy of the record of the High Court including a certified copy of the decree for appeal purposes. This letter was copied to the applicant. It would seem that since this letter was written, the respondents have not taken so far any steps to prosecute the appeal. On the 20.6.2001, the applicant activated the matter by filing this notice of motion under rule 82 of the Court Rules seeking for an order that the said notice of appeal filed by the respondents on the 9.3.2001 be struck out on the ground that the respondents had failed to institute the appeal in terms of rule 83 (1) of the Court Rules. The affidavit in support of the application sworn by Lugano J.S. Mwandambo, ·learned advocate for the applicant, reads in part as under - "4. That dissatisfied with the ruling as aforesaid, the respondents herein lodged a Notice of Appeal on 9th March, 2001. Exhibited hereto marked Exhibit_ "LJSM - 2" is a copy of the said Notice of Appeal. 3 5. That subsequent to the· lodging of the notice of appeal as aforesaid, the applicant, through its advocates received a copy of a letter of a letter Ref. No. RCA/161/98/3 dated 13th March 2001 wherein the respondents requested the Registrar, High Court, for certified copies of the ruling, order and proceedings for purposes of preparing the record of appeal. A Photostat copy of the letter to the Registrar High Court is exhibited hereto marked exhibit LJSM - 3 forming part of this affidavit. 6. That further to what is stated in paragraph 5 hereinabove, I made enquiries at the civil registry of the High Court and I have been informed by Ms K. Milanzi a registry clerk in the office of the District Registrar of the High Court (Dar es Salaam District Registry) which information I verily believe to be true, that the letter mentioned in paragraph 5 above was in fact received at the said registry on 4th June 2001 over two months from the date it was written. • 4 7. That having failed to apply for copies of proceedings in the High Court within thirty days counted from the date of the dedsion giving rise to the notice of appeal, namely 2ih February, 2001, the respondents should have instituted the appeal on or before 8th May 2001 at the latest." The application came up for hearing before Munuo, J.A. on the 26.2.2003. The respondents did not turn up, whereupon Mr. Mwandambo, learned advocate for the applicant prayed that the respondents be served with notice by publication in the Daily News. The prayer was granted. The application was then fixed for hearing on the 16.9.2003 .. Once again, the respondents did not show up. ' This time Mr. Mwandambo informed the Court that the applicant had complied with the Cnurt _Order made on the 26.2.2003. The notice was published in the Daily News dated the 11.9.2003 and in the absence of the respondents, the learned advocate prayed to invoke Rule 58 (2) of the Court Rules that the hearing of the application should proceed on as scheduled. In a brief order, I granted the prayer. ,i 5 Mr. Mwandambo submitted that the application was brought under Rule 82 of the Court Rules for ·striking out the notice of appeal filed by the respondents on the 9.3.2001. Reasons for the application were as set out in the affidavit in support of the application which he adopted. He added that apart from filing the notJae ·of ;lf~peal, lhe respondents wrote a letter on the 13.3.2001 to the Registrar, High Court, requesting for copies of the record of the proceedings for appeal purposes. . However his enquiries at the Registrar's office reverted that the said letter was lodged there on the 4.6.2001. According to the learned advocate, this contravened Rule 83 (1) of the Court Rules since it was outside the prescribed thirty days. Consequently, since the respondents had not applied for the proceedings in time, the exclusion of time under the proviso to Rule _ 83 (1) was not available to the respondents. Therefore, the appeal should hav~ been lodged within sixty days reckoned from the 9.3.2001 when the notice of appeal was filed. Mr. Mwandambo concluded by submitting that as. the respondents have not sought and obtained any extension of time to file the appeal out of time, the notice of appeal should be struck out, and in support of this, he cited ... 6 Civil Application No. 67 of 1997 between (1) Benedicto Rugemalira, (2) James Rugemalira; (3) Jerome Rugemalira and (1) Mohamed Versi; (2) Farida Versi; (3) Shabani Kibogoti (unreported) Since the resolution of this application largely depends on a correct interpretation of Rule 83 (1) and (2) of the Court Rules, I quote it hereunder. It reads - "(1) Subject to the provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry within sixty days of the date when the notice of appeal was lodged - (a) a memorandum of appeal, in quintuplicate; (b) the record of appeal,--in quintuplicate;- ( c) the prescribed fee; and ( d) security for costs in the appeal, save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision against which .l 7 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 of the High Court as having been required for the preparation and delivery of that to the appellant. (2) An appellant shall not be entitled to rely on the exception to sub-rule ( 1) unless his application for a copy was in writing ·and a copy of it was sent to the respondent." From the affidavit filed in support of the application and the submissions made by Mr. Mwandambo, learned advocate for the applicant, the decision of the High Court was delivered on the 27.2~2001 and the notice of appeal was filed on the 9.3.2001. A letter applying for a copy of the record was written by the respondents' advocates on the 1t3.2001, well within the prescribed thirty days. It is the contention of Mr. Mwandambo however that the said letter was received by the Registrar on the 4.6.2001. As deponed by Mr. Mwandambo in paragraph 6 of the affidavit in t . 8 support, this is information he received from a registry clerk, Ms K. Milanzi, who for unknown reasons did. not file an affidavit to that effect More important however for our purposes is the undisputed fact that the respondents applied for a copy of the record on the 13.3.2001 and this was well within thirty days of the date of the decision being appealed against. This is what Rule 83 (1) provides. In Ruqemalira's .case supra, a single judge of this Court (Lubuva, · J.A.) had occasion to construe rule 83 and stated as follows - "It is a. mandatory requirement that within 60 days of the date when the notice of appeal· was lodged, a memorandum and record of appeal are to be lodged. This was hot done in this case· and the respondent cannot take advantage of the exception under rule 83 (1) in computing the time within which to institute the appeal. This is because the letter to the Registrar, High Court, was not written within .. 30 days of the date of the High Court decision i.e. 13.7.96. It was written and copied to the applicants on 3.3.1997 when already time had expired." 1:1 I," 11 9 i I wish to whole-heartedly associat~ myself with this statement I, as a correct interpretation of Rule 83 bf the Court Rules. 1 In this 11 application it is abundantly clear that thr letter from the respondents to the Registrar, High Court was writt~n on the 13.3.2001 and this I I. was within thirty days counted from t~e 27.2.2001, the date of the 1, 11 • decision of the High Court being appe1fuled against. It is not part of Ii' . I Rule 83 that the Registrar of the High/ Court should _signi_fy receipt of the said letter. The Registrar howeve~ is enjoined to comply with the I. . request in the letter by supplying to/the respondents the record of I I the proceedings. It may be that ati' that time the applicant will be 1' I, able to . know when the record was I applied for. So far the /, respondents have done what the la1 enjoins them to do. Until such j, I' time that the record is ready, trnere is nothing more that the I, ,I respondents can do to expedite,; the appeal. 1 In- the case of 1, Transcontinental Forwarders Limited ,. v Tanganyika Motors Limited ,, i1 r (1997) TLR 328, this Court held, in~er alia - ,, 1, "That the present .~espondent, who had 'I 1 applied to the Regis~ ry for a copy of the I, , proceedings sought tp be appealed against i1 fr I, Ii : 11 I, I { t Ir 11 I 10 and had not been furnished with any, had complied with the Rules by copying his letter to the relevant parties - there was no legal provision requiring him. to keep reminding the Registry to forward the proceedings and once rule 83 was complied with the intending ·applicant was home and dry." When the application to strike out the notice of appeal was filed on the 20.6.2001 the respondents could not be blamed for the delay, as the Registrar up to that date had not furnished a copy of the proceedings to the respondents. It is my settled view that the application has been filed prematurely. (see: Foreign Mission Board of the Southern Baptist Convention v Alexander Panomaritis (1984) TLR 146; Atlantic Electric Ltd. v Morogoro Region Cooperative Union (1984) Ltd. (1993) TLR 12). In the event, I am satisfied that the applicant has not established that the respondents have failed to take essential steps in instituting the appeal to warrant the notice of appeal being struck out. The application is accordingly dismissed. 11 DAT~D at DAR ES SALAAM this 25th day of September, 2003. \ ) H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. .r✓tlr ( F. L. K. WAMBALI ) DEPUTY REGISTRAR