stephen masatu wasira vs joseph sinde warioba 1997 tzca 53 21 august 1997

IN THE COURT OF APPEAL OF TANZANIA AT DAP ES SALAAM (CO RAM: KI SAN GA ,■J .A «■, SAM'-.TTA, J.A., And KROSSO, Aq, J.A. • CIVIL APPEAL NO. 5 0 OF' 1-996 BE TWEE r. S T L r HEN Fi AS A TU W A S I i v u ■* • . • . •. APPELLANT ANn JOSEPH S IN D S A R I D B A .......................... ..... RESPONDENT (Apoe^l from the Judgement of the High Court of Tanzania at Mu soma) (Luqgkinqlra* J . ) dated the 30th day of August, 1996 in Mi sc. Civil Cause No. 25 of 1995 R U L I N G KISANGA, J.A.: During the 1995 general election Mr. Stephen Masatu Wasira had been elected Member of Parliament for the Bunda constituency, \ but his election was •subsequently nullified by the High Court (Luga’ c irgira, J.) following ar election petition filed by one of his opponents, Mr. Joseph Sinde Warioba. Dissatisfied with the nullification of his election Mr. Wasira sought to appeal to this Court, but before the appeal was heard Counsel for .Hr« 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 thfit no copy of the appellant's notice of appeal was served on the/respondent or his Counsel. In the second ground it is alleged yhat the appeal has been instituted out of time and without prion 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, learrv.-- advocates while Dr. M.R.M. Lamwai and Mr. Marando, learned advocat:c appeared for the.appellant. Before the -hearing of the preliminary objection commenced, Dr. Lamwai informed the Court that there' was pending before this Court Civil' Application Wo. 29 of 1997 in whic^ the appellant is' applying for extension of. time to serve the notice of appeal on the respondent. He further disfclosed that that application was filed under a certificate of urgency but the Chief Justice by an administrative decision directed that the preliminnry objection which was filed earlier be heard first. Dr. Lamwai* therefore, at first urged'us to review the administrative decision of the Chief Justice and to hear that application first, but after some preliminary observations by the Court he conceded that the preliminary objection has to be heard first. It was common ground that the judgement of the High Court giving rise to this appeal was delivered at Musoma on 30.8.96, id and that the appellant-promptly filed his notice of appeal on 2.9.96. However the -wuestion whether the a D p e l l a n t served a copy of that notice «n the resoondent, 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 responder but the respondent vehemently denies it. Each side adduced eviderc affidavit in support of their respective claims. The appellant filed two* affidavits. One of them is dated 16.ft.97 and the other, >eing a reply to the respondent’s counter­ affidavit, is dated 29.7.97. In both affidavits the appellant says in effect that on 2.9.96 he went to the Mwar.za 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 of the notice of appeal on him but Mr. Rweyemamu declined service on the ground that his instructions were limited to representin'; the respondent in the High Court only. Whereupon the appellant decided to' 30 to serve the respondent at the New Mwanza Hotel where he, the respondent, was staying. He arrived at the hotel at about^9a.m. and upon inquiring he was informed by one John Natay, a receiptionist at the hotel, that .the respondent was around... He then left the copy of the notice with John Natay with instructions to deliver it to the respondent. The appellant mad'i no follow on the matter after that. The said John Natay filed an affidavit in support of the appellant' s case. He said in effect that on 2.f.96 he delivered, notice of appeal to the respondent on the instructions of the appellant. The respondent in his counter-affidavit said thet he was staying at the New Mwanza Hotel but checked out of the hotel at r r.‘.■ ■ 8 .'3* a.m. on 2.9.96 to catch a flight to Oar es Salaam that day. He produced the carbon copy of the coupon of his used ticket v/hicjn.shows that the take off time of his plane that day was 1 lf-HS a.m. He also produced a copy of the passenger manifest which bears his name as bein* one of the passengers travelling 'from Mwanza to nar es Salaam on 2.9.96. For the respondent, therefore, it 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 which was allegedly brought to the hotel by the appellant at about 9 a.m. In response to this, however, the appellant in his reply to the appellant1s counter-affidavit maintained that the respondent was still at the hotel by 9 a.m. that day because.John Natay confirmed this to him. Thus it amounts to one man's word against that of another. It is the word of the respondent who claims that he checked out of the hotel at 8 . 3 0 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 storsies is to be accepted, i - . i To start with, it is to be observed that the appellant < . himself din 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 8.30 a.m. there is nothing to contradict him on that. The appellant's statement that according to Natay the respondent was still at the hotel at 9 a.m. that day is not enough; it required Natay himself to confirm it on oath, which he has not. As it is now one cannot assume that if Natay were asked he would necessarily have confirmed it. Indeed Natay might very well have come u* 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.f5 a.m., would have already left Mwanza for Dar es Salaam. • In the course of submissions by Counsel, it appeared fco t be^ common ground that for domestic flights passengers are r^quireid to report for checking in at the airport one hour before departure time. According tn the respondent' s used ticket then he had to he at the airport at about 9.05, and given that it takes some 2f to 30 minutes to drive to the airport, it 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 other hand the respondent's version that he checked out of the hotel at 8.3# a.m.:appears more likely because that would give him allowance of about 30 minutes drive to reach the airport in >t‘ time for checking in at about 9.">5 a.m. Or. Lamwai came up with suggestions that the respondent's departure time £or -kis flight may have been re-scheduled in such ^ way which made it possible for him to leave the hotel later . ‘than 8.30 a.m. Counsel also contended tha.t the respondent, as a former Prime Minister, travels in style whereby someone would check him in and he ^oes 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 or^er to beat the scheduled time for reporting. However all this was mere speculation. 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 respondert 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 ffroup of not less than five passengers, most of them members of his family. No evidence i was adduced to show that he severed himself from this group and remained behind at the hotel, while the rest proceeded to the airport for checking in on 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 Civil Application No. 29 of 1007 which was fefe^rred to j > * .../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:- "Further that non— service of the notice upon the 1st Respondent is not out of my negligence J»ut-out of the fact -that I reposed too much confidence^upon.the IJey Mwapzg Hotel staff." The paragraph appears to he a clear admission- >>y the appellant ^that the responc^ejat wac not served with the notice of appeal, ^nd-that is why ..he says iw paragraph 3 of the said affidavit of ft • ' '■ w .*>• • * 16.,^’. 'th.atL he applia«[ to the G o ^ t fo r'e n la rg e m e n t ©f tlm^ to s e rv « thare s ip n ^ fn t a c c o rd in g ly ? - I t i s o n l y ^ n ' that way tliat-thie appel^Ari^-s' ?tary c^ub make^censo. Hi-s'subsequent d s i j i ^ t h a t Natay informed him. th a t“ he duly served the jk^tice o f appeal on •the~ re sp« nrte» t soun<Js - more o£ an ..Af'fcejrthau^ht;' " F o r v w h e n * c o n f b t e d - ^ i th t h i^ -'a lle g a t io n 'o f ion-seirvifie o f 't h e notice ®n .the- re sponden t|. o m •vrould-w^rroalij.y expert that'the ;: : f-';i‘ ! T !■ 1 “ '> • i i r:i first” thing'" 'the appellant would "have -dope •#95 •’td “turn-to John Natay an^~ask; ^ 11* to-•infirm whether or' not“he* had delivered ~ i. '■ ) . * -:* . * ;' j : ' the-notice to the respondent as'instruc tsdi And If’ the-answer ■:* ’ . ! ’ . '■ .., ■ ' ;$ ' ■i :■' ‘ : . ' >ras in-the a^irmati're-thon-the -natural thind to do w a s for'the appellaot- to place-that-information before- the ..C^urt-in answer to th«:-preliminary objection,. It is-enly if 'JohjjZwa t*y confirmed no^r-seryice-^that.. the-appellant-w©uM-l»e ...expected* to -move the Caur£.,.as. ho •did,.for' leave to-^o so* out -of" tiae. But'to say that , lili ■ ■ £he~apperiant“would g®-;-to-Court to- ask'for' such,, leave ;when"he *■ - ■ > ' : ■ aJire.ady^'k^ew- tAat* the .reBpoft^ent:-ha^ duly served sounds edd, i- ■' "f .i \ . ..r i ■' i. ;1 ! r »'’ • ’"‘ P ' > ! • to ~ s a y _ the - l e a s t . .In - o u r '-T ie * th e -jp o r ^ l i k e Ijr t i l i n g '! s that ■'' »V - •’ *. •• : i' ' *.1_• '' ‘ i '?• ’ .A v . ‘ ‘ ■ i« * ! ‘V. : ; ■%.' t ■ .y. - r ? / •1 , ; the appellant went to Court to cpply for leave to serve the respondent with the notice of. appeal out of time after he h»d satisfied himself that the respondent had hot been served with such notice. There is yet'another aspect of the appellant's conduct which raises some concern. A copy of the notice of appeal is jdirected to the respondent through his advocate, Mr. J.S. Rweyemgmu at Mr. Rweyemamu's address i.n Bukoha. This raises a number of t questions. First, the case was oecided at Musoma. Now, since it is undisputed that both 'the appellant and the respondent * are living in Dar es Salaam, why was it necessary to route the notice through the respondent's advocate in Bulcoba instead of * sending it direct to the respondent through his address for service in Dar es Salaam which was well known to the appellant? More so especially as the appellant himself travelled to Dar es Salaam shortly after preparing the notice of appeal on 2,9'i^l because he held press conference in Dar es Salaam on 8.9.96. Again the appellant, appreciating the importance of servin* the respondent with the notice, says that he went personally to serve the respondent with the notice at the New Kwanza Hotel. If this is so then why did he not ascertain that the respondent was in fact served either by himself effecting the service or by waiting for John Natay to return to him and confirm the service on the respondent? Why did the appellant not seek to have the respondent's signature against the receipt of such an important document? Worse still the appellant says in his ^affidavit that after leaving the notice with John Natay with j the instructions to strve it on the respondent, he went away ?.nd a-, - never made a follow up on the matter until the notice of : preliminary objection was served on him.J It is most strange that the appellant would fail to make1'a follow up on such an ■ important matter.- These are some of the additional matters which in our view, serve to make the appellant's story increasingly less likely. Considering all the circumstances of the case, therefore, we are satisfied that it is more likely than not that the respondent t. was rot served with a copy of the appellant's notice of appeal. That renders the appeal defective. since the appellant did not take steps to remedy the defect until only after he was prompted by the respondent's notice of this preliminary objection^ the appeal cannot now be saved. We shall make the final order after considering the other ground of objection. As stated earlier, the second leg of the objection alleges that the appeal has bean instituted out of time and without leave to do so. The notice of appeal was lodged in Court on 2.9.9.S, ar.d in terms of rule 33(1) of the Court of Appeal Rules the appeal ought to have been instituted within 60 days of that date. That is to say, the dead line for instituting the appeal was on 2.11.9*? but .the appeal was lodged in Court only on 15.11.9$. , That was clearly out of time unless the appellant could rely an the exception to the *S0 days rule provided for in the proviso to rule 83(1). Mr. Rweyemamu submitted that the appellant could not rely on that exception becausp he had not satisfied one condition for invoking it., Learned Counsel went on to say that contrary to what the law requires, the appellant did not send to the respondent or his advocate a copy of the letter to the Registrar applying for proceedings in the case; and that indeed -there was no evidence that, the appellant had written *ny such-letter to the R-2#istrar. ' Refutinf all this,- Dr.- Lamwai" citad a letter in the ' original Court Case file, addressed to the Registrar Ky the appellant and dated 2.*V9S Hy which the appellant applied for proceedings in the case, with a copy of that letter to the • resp^dent in th'e care of his advocate, Mr. J.S. Rweyemamu '' \ at his address in Bukoba.- Dr.- Lamwai, therefore, contended y ^ •that not only was the letter applying for proceedings written to the Registrar, hut th?.t a copy of that letter was also sent to the respondent through his advocate. Learned Counsel further submitted that proof of service was evidenced hy the fact that the letter was copied to the respondent in the care his advocate, and for this submission he relied' on' the decision of a Single Judge this Court (Mfalila, J.A.-) in the case of Alluminium Africa Ltd*- v.* Adil A^lallah phiy.ehl Civil Application No. 6* 199#; In that case the learned Single Judge had expressed the view that all that an appellant need, show is that he sent to- the respondent a copy of his- letter'to the Registrar *pplyiny for proceedings, and that the fact that such letter was, copied to the respondent wgs enough proof'(the emphasis'is supplied*. ) •' , With (»ue irejpect, knwever, Dr. -Ljnw^i -overlo^l^ed 'the fact that" this decision'of' the Single Judge was reversed upoh a reference to the full C^art, ■vide Reference Civil Application "199AT• In the course of hearing that'refSrenee the Court-found that, upon his own admission', -t W appelLant had not sent to the respondent a-copy of his le-tter'to' the Registrar ’even though the letter itself was shfivrT to have been copied t** the respondent. Thus the Court did not decide on what constitutes "sending" withinthe ■meaning of sub-rule' (2) -of rule 83 of the Rules which requires that a copy of such letter be ser, t to the respondent. Happily, however, Dr. Mwaikusa cited a statutory provision which supplies the answer. It i-s rule 20(7) of the :Gourt of Appeal- Rules which saysJ- "20 (7) Where any document is required to be sent to any person, the document may be sent by hand or by registered > post to that person or to any person entitled under Rule 28 to appear on his behalf and notice of the date fixed for the hearing of an application or appeal or fog the deliver of judgement or the reasons for any decision may Va given by telephone or tele«ram." For the appellant in the instant case it was merely shown that the letter in question was copied to the respondent's advocate, and nothing more. It is quite clear that that was no proof of service within the meaning of the above rule. We there/ore find that the letter in question was not sent to the respondent and, consequently the appellant is not entitled to rely the exception of rule 83 (l). t' Upon further examination of the original court case file Dr. Mwaikusa brought to our attention the fact that the carbon copy of the appellant's letter to the Registrar was still in the file. The learned Counsel submitted that since the said letter to the Registrar is shown to have been copied to the respondent only, it follows that the carbon copy found in the .../ll file is the one which was supposed to be sent to the respondent but was not in f^ct' Sent. We have no good :reason to differ from ; •I that view. There is yet. another point which reinforces our finding that the copy of the said letter to the Registrar was not sent to the respondent. The appellant, .in his application No. 29 **f 997 referred to in paragraph 3 of his affidavit in this' roceedinq, is applying to this Court for leave to appeal out 'of time. It seems plain that he took that step, because he was satisfied that he could not rely on the exception to rule 83(1) ;as he had not sent to the respondent the copy of his letter to the Registrar. His suk^equetot claim that the copy was duly sent < to the respondent was an afterthought. It was a desperate attempt to save the situation after the administrative decision >y the Chief Justice that the preliminary objection be heard first kefore the appellant's application.. It therefore follows that the appeal which was filed only on 15.11.96 was time jarred •f and hence bad in law as it was so filed without prior leave to do so- In the result the preliminary objection is sustained on 4 both grounds of the appellant's failure to serve the respondent with a copy of the notice of appeal, a n d of instituting the appeal out of time. Accordingly the appeal is struck out with costs. at DAR ES SALAAM this 2lst day of August, 1997. R.H. KISANGA JUSTICE OF APPEAL B.A. SAMATTA JUSTICE OF APPEAL J.A. MROSO Aq. JUSTICE OF APPEAL I certify that this is a true copy of the original