20130522 TZCA Dar es Salaam

I IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUANDA, J.A., MJASIRI, J.A., And MANDIA, J.A.) CIVIL APPEAL NO. 37 OF 2006 TANZANIA CIGARETTE CO. LIMITED ................... APPELLANT VERSUS MASTERMIND TOBACCO {T) LTD ..................... RESPONDENT (Appeal from of the judgment of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Massati,, J.) · Dated the 28th day of November, 2005 in Commercial Case No. 11 of 2005 RULING OF THE COURT 16th August 2012 & 31 st May, 2013 MANDIA, J.A.: The appellant filed an action against the respondent in the High Court of Tanzania, Commercial Division, based on infringement of the law on trademarks. He lost the action in the High Court. The- respondent, who was the defendant in the High Court, had also. filed a counter-claim 1 against the appellant who was then the plaintiff. He (the respondent) also lost in the counter-claim. Aggrieved by the ·decision of the High Court, the appellant has filed the present appeal. · The appeal filed by the appellant has attracted a preliminary objection from the respondent containing two points: the first point of objection is that the appeal is time-barred~ and the second point is that the appeal is incompetent for the appellant's failure to include documents necessary for the proper determination of the appeal. Mr. Gabriel Mnyele, learned advocate, appeared for the appellant, while Mr. Waziri Mchome, learned advocate, assisted by Mr. August Mrema, learned advocate, appeared for the respondent. At the start of the hearing of the preliminary objection there was an argument on whether the respective parties were required to file written submissions or not. After both parties. to the appeal came to the 2 realization that the appeal. was. filed in 2006 before the coming. into operation of the new Court of Appeal Rules, 2009, it was agreed there was no need to file written submissions. Again during the hearing of the objections it came to light that the judgment which is the subject matter of th the appeal was delivered by the High Court,. Commercial Division on 28 November, 2005. On ih day of December, 2005 the appellant lodged a Notice of Appeal as it appears at page 615 of the record. On the same date i.e. 7/12/2005 the appellant wrote to the Division, a letter requesting for copies of judgment, decree and proceedings in Commercial Case No. 11 of 2005. The letter was date stamped by the High Court to show that it was received on the same date 7/12/2005. At page 612 of the record a certificate of delay signed by the Registrar of the High Court, Commercial Division, appears. The certificate excludes the dates 7/12/2005_ to . 22/3/2006 in counting the days .for limitation purposes. This means limitation started to run from 23 rd March, 2006. After a physical count both Mr. Mnyele and Mr. Mchome agreed that the sixty days within which to file the appeal elapsed on 22/5/2006. Since the appeal was filed on 23 rd May, 2006 Mr. Mnyele conceded that the appeal was late by one day. ' . Mr. Mchome relied on CRESTHALE (UK) LTD Versus Bondeni Seeds 3 Limited, [2000] T.L.R.1 and was of the view that in view of this concession by the advocate for the plaintiff the appeal is time barred and must be dismissed. Mr. Mnyele was of_ the opinion that the appeal should be struck out. The second limb of the preliminary objection endeavors to show that _ the record of appeal is defective for failing to incorporate documentary put in evidence and admitted during the trial in the High Court Mr. Mchome argued that there were Exhibits P2 and D6 tendered i~ evidence but were not included in the record of appeal and that this default offends Rule 96(1) of the Court of Appeal Rules. In view of the concession by Mr. Mnyele we do not need to delve into the second limb of the preliminary objection with regard to- defects in the record. We subscribe to the position of the law as elucidated in the CRESDALE (UK) LTD case (supra) that no provision of the rules can be used to save an appeal which is time barred .a position similarly adopted in 4 JUMA MTUNGIREHI vs TANAPA, Civil Appeal No. 66 of 2011 (unreported). We find the appeal incompetent and strike it out with costs. DATED at DAR ES SALAAM this 22 ndday of May, 2013. B.M. LUANDA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF.APPEAL I certify that this is a true copy of the ·originaL / I 5