NA TZCA Dar es Salaam2 1

... IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SAL.AAM (CORAM: KISANGJ\ 1 _J~A., SA.~TTA, J.A.; _ And. MROSSO, Ag. J •.A.) CIVIL APPEAL NO. 50 OF 1996 BETWEEN STEPHEN MASATU WASIRA. ,; • ;; • • • APPELLANT AND JOSEPH SINDE WARIOBA a • 0 • • • • RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Musoma) / L (Lugakingi~~, J.) dated the 30th day of August, 1996 in Misc. Civil.Cause No •. 25 of 1995 R U L I N G KI SAN GA, J. A.: During the 1995 general election Mr. Stephen Masatu Wasira had been elected Member of Parliament f6r the _Bunda constituency, but his election was subsequently nullified by the High Court (Lugakingira.; J.) 'following an election petition filed by one of his opponents, Mr. Joseph Sinde Warioba. Dissatisfied with the nullification of his electioi:t Mr. Wasira sought to appeal to this Court, but before the appeal was heard Counsel for Mr. Warioba, the respondent, filed two preliminary objections to the appeal alleging two grounds: The first ground alleges non-compliance with rule 77 of the Court of Appeal Rules in that no copy of the appellant's notice of appeal was served on the respondent or his Counsel .. In the second ground it is alleged that the appeal has been instituted out of time and without prior leave to do so. At the hearing of this preliminary objection, the respondent was represented by Mr. J.s. Rweyemamu and Dr. J.T.• Mwaikusa, learner.I • 0 .. /2 2 advocates while Dr. M.;~.M .. Lamwai and Mr. Marando, learned advocates appeared for the appellant. Before the hearing of the preliminary objectio·n commenced, Dr. Lamwai informed· the Court that there was pending before this Court Civil Application No. 29 of 1997 in which the appellant is applying for extension of time to serve the notice of appeal on· the respondent. He further disclosed that that application was filed under a certificate of urgency but the Chief Justice by an administrative decision directed that the preliminary objection which was filed earlier be heard•first. Dr. Lamwai, theJ;"efore, at first urged us to review ·the administrative decision of the Chief Justice and to hear that appl"ication first, but after some preliminary observations by the Court he conceded that the preliminary obje~tion has to be heard first. J:.t was common ground that the judgement of the High Court giving rise to this appeal was delivered at Musoma on 30.8.96, . and that the appellant promptly filed his notice of appeal on 2.9.,96. However the°"'""iuestion whether the appellant served a copy of that noti'ce-:'.'c"n the respondent, as required by rule 77 of the Court of Appeal Rules, is seriously in dispute and is the subject matter for determination in this proceeding. The appellant asserts that a copy of that notice was duly served on the responden.t, but the respondent vehemently denies it. Each s'ide adduced evinence by affidavit in support of their respective claims. The appellant filed two affidavits. One of them is dated 16. 6. 97 and the othe-r~' ·J"eing a reply to the respondent's counter- affida~it, is dated 29.7.97. In both affidavits the appellant says in effect that on 2-. 9. 96 he went to the Mwanza High Court registry where he found Mr. Rweyemamu., the advocate who had acted for the respondent in the High court. He sought to serve the copy •o ■ /3 of the notice of appeal on hitn but Mr~ Rweyemamu declined service on the ground that his instructions were limit~d to representing the respondent in the H:t'gh Court only. Whereuj::>on the appellant decided to·. go. to serve the respondent at the New Mwanza Hotei where he, the respondent, was stayingo He arrived at the hotel at about 9 a.m. and upon inquiring he was informed by one John Natay, a receiptionist at the hotel, that the respondent was aroundo He then left the copy of the notice with John Natay with instructions to deliver it to the respondent. The appellant made no follow up on the matter after that. The said John Natay filed an affidavit in support of the appel_lant• s caseo He said in effect that on 2 .. 9.96 he delivered notice of appeal to the respondent on the instructions of the appellant. The responceht i.n his c:ou'nter-affidavit said that he was staying at the New Mwahza Hotel but checked out of the hotel at 8.30 a.m .. on 2;.9,.96 to catch a flight to Dar es Salaam that day. He produced the carbon copy of the coupon of hi_s used ticket which shows that the take off time of his plane that day was 10.05 a.rn. He also produced a copy of the passenger manifest which bears his name as bein~ one of the passengers travelling from Mwanza to Dar es Salaam on 2.9.96. For the respondent, therefore, i t was contended that having checked out of the hotel at 8.30 a.m. he could not have been served with the said notice of appeal wh'ich was ·all.egedly brought to the hotel by the appellant at about 9 a.m. In response to this, however, the appellant in his reply to the appellant's counter-affidavit maintained that the respondent was still at the hotel by 9 a;m. that day because John Natay confirmed this to him. 4 Thus it amounts to one man's word against that of another., It is the wor,j of the respondent who claims that he checked out of the hotel at 8.30 a.m. as against that of the appellant who maintains that the respondent was still at the hotel at 9 a .. m.. We now have the task of assessing the material before us and to decide which of the two stoeies is to be accepted. To start with! it is to b€' observed that the appellant himself did not see the respondent at Mwanza Hotel. He depends entirely on what Natay told him. But Natay does not say what time he delivered the notice to the respondent. So that when the respondent says that he checked out of the hotel at Bo 30 aomo there is nothing to contradict him on thato The appellant's statement that according to Natay the respondent was still at the hotel at 9 a.mo that day is not enough; i t required Natay himself to confirm it on oath, which he has noto As i t is now one cannot assume that if Natay were asked he would necessarily have confirmed it. Indeed Natay might very well have come up with his own version; he might have said that he delivered the notice to the respondent at 11 a.m •. which could not be true because by then the respondent, whose flight departure time was 10.05 a.m._, would have already left Mwanza for Dar es Salaam. In the course of submissions by Counsel, it appeared to be common ground that for domestic flights passengers are required to report for checking in at the airport one hour before departure time. According to the respondent's used ticket then he had to be at the airport at about 9 .. 05 ,. and given that i t takes some 20 to 30 minutes to drive to the airport, i t seems less likely that the respondent would still be at Mwanza Hotel at 9 a.m~ by which time he ought to be at the airport. On the 5 other hand the respondent's version that he checked out of the .. - hotel at 8 •.Jf' a_.m. appears more likely because that would give him allowance of about 30 minutes drive to reach the airport in time for checking in at about 9.05 a.m. Dr. Lamwai came up with suggestions that the respondent's departure time for ~- ...... .111is flight may have been re-scheduled in such a way which made '-it possible for him to leave the hotel later than 8.30 aomo Counsel also contended that the respondent, as a former Prime Minister, travels in style whereby someone would check him in and he does not have to stand in the queue. So that he could have left the hotel late and therefore he need not have left the hotel so early in order to beat the scheduled time for reporting.. However all this was mere specula.tion. No evidence whatsoever was adduced to show or suggest that there were any changes in the scheduled times for reporting or take off~ or that someone checked the respondent in while the respondent could remain behind at the hotel for some time. What is more, it was apparent from the passenger manifest that the respondent was travelling in a group of not less than five passengers, most of them members of his family. No evidence was adduced to show that he severed himself from this group and remained behind at the hotel while the rest proceE!ded to the airport for checking in cm schedule. On the other hand there are some aspects in the appellant's story which tend to render that story less probable. First of all when this notice of preliminary objection was served on him, his first reaction was to go to Court and apply for extension of time to serve the notice of appeal on the respondent. He did this in C_?.-vil Application No. 29 of 1997 which was,,,-etJ:~£~ed to •• .,,/6 = 6 ,., . at ·the beginning of this Ruling. Paragraph 7 of the affidavit in support of that application is reproduced word;for word in paragraph 10 of the affidavit dated 16.6.97 which the appellant is relying on in this proceeding. That paragraph says:- ~\½\):?:,j~S' Y\(; {;;tt\',;,f\i~fl/,~!Jt/,, ~\\a:~\\ t\\';~J. ;'~prr;p~f:Jh~,~;}}~ri.:;~~~Yf~e of the notice upon the 1st Respondent is not out of - . . . , .. . . 1 .~ , , . r~ , < n 1 , \' t l . '\ -·i , • t' " 1,rny negligence" hutc otit of it'ne ·-·fact that ~-- ,7• i:;~pose.o,-t9:o • . . -·· . ::m~~~'hgqnf11cft:a.ncecupon the >'.: · • ,~~:'~ th' -~e SPQ!1~-~t-- '1¥ :r_~i;: ,:~,JtV~d· ,wi tlt the :nb:bice· di ~°eipp~iii' i~~f-t tt~~-t ;~- ,!'1;~X,rhe. ~8.:Y4· .ip d?¥,aqc('.aph;f:S, c0·£. t11e: ·saicf ~rflcfa'vi t of };~~:~• 9:f\ .~p~\ P~y app~li,~9,, ,tOr;i\;PeLC:9llr,t:: f9tJ:~n1.;arg~ineh't' d'f'.' time r, ':' se,;rv~ eti,~. r_~,~P-C>.P,d~,n,,t,. a~co,,r;(l!;~g~y_. cd t, :is , on:Ly-'~1n-; 'thca-t _vi~y- to ·)0.:. ::-:.r:> r,.)~~ ;:,...,.. ~" ,;.,_- · ~ •. _, · · - -····, ,~paJ ,t~_~,,,~PPfl_:l.la_n~,' _s ~t();t'Y_ Cp.n~, ~a)c~:: seii.se~-:--tii.S'- subsequ~ii"t ,;.,;;'-.'. ·...... - '• ·'- .• . . . . - . cl?im, that ~at~,y .t .r_:' ·:' .:· - ·. . . #- .I, il'){p_rme<;l l:l~m -t}:)at. he:-duly~.-servei-r=ther:ri6ti8~ of ' . . .' . . • , ;. ·- .- .• •· ': -- ·- . ~ ~ . !"-. . appe?1, !=>ri,_Jhe., f;eit,6n~~n.b s91.ma s me>re of,- ~h<aftefthot1ghi:: Fbt', ~h~n '}=¥;{~~h.1a?_:~~it~ t,~ts.~glJeg;ath,n of no~~~ervilc'~ -of: the { ~~ticE:_, ... ' ,.. tB.~ . - .. ,. _,' ~f t:¢,spc,iideht:J ):)~€ }t6Uid tiortnaily ~~pect that "tfot . Natay ,an_q_ g9k hi!Jl,,: to :C,on~irm, whe-ther Lo·.f .riot cf.le ha(t dei-fvered ,: -=~:-:-r-;·-._, ·;:.'. -. -- -· :~ -·- - . ~ the notice ,to th~. respondent as 1:nstrud:e'd. - Andf'lf--"-'th~,r {n;;,Jr •. '>O)' .;.~:_. : - :· f· ~~ . . -- : .', .· -· . - was in the__ af-l--~;i._rmaUve tfien: _-thE= i•nafu'rc1l th"'.ing: ;-tt cfo J./ii:( .fcjf'.the 1~~) r"": .. ~-..c::··.,- ............. .- · -~ · ·:., ,, ·- · · ap_pel,lant t,o pLace that. information before the: Court in answer tp, the preliminary objection. It· is only if John' Natay confirmed non-service that. the appellant woula be expected to i;nove _the Courtf .as he did, for leave to do so out of time. But to say that the appellant would go to Court to ask for such leave when he already knew that the respondent had been duly served sounds (')dd, to say the least. In our view the more likely thing is that