20130328 TZHC Dar es Salaam

f' ,,t' 'l ' .. I IN THE HIGH COURT OF TANZANIA . I I i AT DAR ES SALAAM ' . ! CIVIL i APPEAL NOi 26 OF 2013 I I I -(Originating from Resident Magistrate Kisutu Civil Case :No. 13 of 2004) . • ! . TANZANIA INTERNATIONAL coNTAINER sERvicEs LIMITEo.u. .. .....................;., ...APPELLANT .. 1 VERSUS I BOULANGERERIE SAINT THOMAS ............................. RESPONDENT . .. i ·Date of Last Order: . 3/12/2013 . i' Date·otRuling: - 28/3/2013 RULING Bongole,J - This ruling is in respect of Preliminary Objection raised by the ' • I . . . J . respondent against the appellant's app~a:I. Two Prelirninc~ry Objection have · been raised, thus::- 1. That the appeal is hopelessly time !,barred, and :. 2. That the appeal is ~ad in law . , It is si,_ghificant .to appreciate the abb~eviated facts of the appeal in a s~~letal_ form before dwelling on the prelimlnary objections. 1: ,, .• ;, ··5•.-... 1 ,,..,, . Broadly, the respondeht instituted a claim against Overseas Tradjng -.'.· ·. Company N.V arid Tanzania International container Terminal Services_. . . ·,, ·,. ·., Limited as the 1st and 2nd ,defendants respectfully b.e_fo~e RM's ~ourt of bar es Salaam at Kisutu Civil Case No 13/2004. Judgment was delivered in favour of the respondent/plaintiff on the 4t~, July, 2007.· It appears that the 2nd defendant was aggrieved by the said decision hence he applied to be provided with copies of proceedings, "Judgment and decree so as he may lodge his appeal. Copies were ready ' for collection on the 29 th February, 2008. On the 19th March, 2008 the counsei for the respondent was supplied with copies of ~udgment and decree having paid court fees 2,000/= vide _ exchequer receipt No ·30508005. The counsel for the respondent Mr. Said Elmaamry filed a Bill of Costs on the 3rd day of April, 2008. . _/).. •: _., .- The appellant who was the 2nd ·defend~n-t .i.n the legaf services c(M!<onq · Advocates filed a notice of Preliminary Objection against the bill of.costs on the ih Octob.er, 2008. The ruling on. bill: of costs. was deliverJd ~·o~· 8th · . . . . . . ~ . - . .' October, 2008. The Advocate for the appellant wrote a later dated 10th.. - October, 2008 to the RM's Court requesting to be supplied with .ce1tified, copies of the ruling so as he may file a reference to a single jtJdge of the:. High Court. , I Equally, Mr. Said Elmaamry applied for the same copies vide his letter· rd dated 13th October, 2008 where he was supplied on the g 23 October, 2008 . having paid Tshs. 1,500/= vide exchequer receipt No 22564825as court fees. 2 1· ';• ,, ' ( '., , ·<·. > ' . ; • 1'• . ;,_ . .- ;.,~ . . ., . . , . . . .• : ·~ ,~ ..... o . . . . 1 , t, .The re's~ondent appli~d for execution of. the courts decree on the 6 th Jt:tly, 2011. ·. · _:The· appell~nt collected the certified copies of proceedings Judgment and decree on the· 5th February, 2013 and preferred the present appeal on . . . ~ . .. th the 11 February 2013. The said appeal is now attacked by way of the ' . . . _two preliminary objection as shown above. . . . ;. · . The learned~ counsels Mr Waziri Mchome for the appellant and Mr-Harold Sungusia for· the respondent opted to dispose the Preliminary Objection raised by way of written submissions. N • • • a ~ • Mr_. Sungusia submitted that the respondent herein is a resident of Burundi and he has no office in Tanzania. However, he· managed to get j .. \ • • ~ • copies of Juqgment and decree way back in 2011. . That the responden~ . . · travelled all the way from Burundi and secured the decree two years prior to_. ~th·~:_:•~p-~ella.nt ~ho is· a permanent resident of Tanzania and_ his head ... . ... . -offices · are based in Dar es Salaam some four Kilometers from ·the ,/ ~~,"~ .. premises of Resident Magistrate Court at Kisutu. ; . ,t ' . . · That the copies were _ready for collection since 2007 but the app~ii~nt was pleased to go and collect the same _on 5th Februa~, 2013. That from .4th July, 2007 to 11 th February, 2013 is more than 68 months i.e ' 5 years and 8 months. T~at the time limit as provided under the law of Limitation Act Cap. 89 R.E 2002 is 90 days. Further that from the record, ther~ is no any document showing that the appellant sought to extend the I time limit for filing the current appeal. That since there was no extension of time sought ·and a Preliminary· Objection has already been raised, it ·. t 3 .... .. '-:, . ·1 .. .. ' . J.,... means that the appellant can now not seek an extension of time as it .will result in pre-empting the objections. The learned counsels for the appellant responq_E!nt gy arguing that the·: ·, • I , , appellant had been reminding the court to supply the· documents despit~ the fact that even in appeals from the lower court to the High. Court there · is no provision requiring the appellant to keep on reminding the· court. , .. th That in this matter, limitation period started to run from 5 February, 2013 when the appellant got the document from the lower court for the purposes of appeal. That under S.19(2) and (3) of the Law of Limitation· Act, Cap. 89 R.E 2002 provides "19(1) N.A . . (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal or an _application for review ofJudgement; the· day on which Judgement complained of was delivered, anc/ the period of time requisite for obtaining a copy of the decree, or order appealed fron1 or sought to be reviewed, shall be excluded. In support of his argument he cited· the case of Mary l(imaro Vs Khalfa Mohamed [1995] TLR, 2002 where the court held:- . ''No doubt, copies of proceedings. along side with the copy of Judgment are necessary for purposes of framing a sound Memorandum ·or Appeal. It is from the supply of both such documents that the limitation of time for.appeal runs" That from the date appellant applied for such documen·ts· to 5th February, 2013 was a time requisite for obtaining those documents and . 4 . ' .. I .,,,,,. :. ·:.,. ~ ,·. \ q:,'r.'' :..:..::·~,."'· 7t --~~!:;. .•.. · • • I that period. has to be excluded in computing• the limitation period for _appeali_ng. That this appeal was filed on 11 th February, 2013 just six days 1 from the date the appellant got all ·relevant documents for purposes of • • : • • I appealing. S~ they argue that the appeall was filed within time. · .. . . .. . . I I owe gratitude beyond measure fpr the persuasive and impressive' st arguments made by . the . learned . counsels I in support and against the. 1 Preliminary point of objection.' l I think, the main issue is wheri time starts ticking against an ' ' ' ag~rieved part in lodging on appeal. The law of Limitation act cap. 89 R;E 2002 provides for time limit in respect of :every action. Section 19(2) of the said Act (Supra) is clear in terms. but not in absolute terms that once an ' I • I aggrieved part applies for certificate copi~s of proceedings judgment and decree .for appeal purposes he goes back home for bed rest till when the ~- ' court takes those documents to his hortjestedy . It is indeed the duty of °1 • I the litigant(s) .to make a follow up o( those documents and pays the · . I requisite fees of obtaining the same. 1 'lo , " •· • • • I . . · From .the ·record. in this file as,! I have tried to highlite. at the . • . , I beginning, the ·copiesi were certified by the trial magistrate on the 29th ,•I .... February, 2008 that ·means, it. was a: date the same were ready for I . collection .. The appellant could not coll_ect the same till the 5th February, 2013 when th_ey paid fo·r court fees and 'Were given those copies. Should a ' ' brave and wise ._man sitting on the bench held that from when the I , documents were certified in that mea~ ready for collection i.e 29/2/2008 4 tb 5/2/2013 ' . i.e 5 sold years to. ·be interbreted to mean requisite period of ' ... 5 j obtaining the documents in the perimeters of S.19(2) of the Law of . Limitation Act (Supra). The answer is. with unfeigned respect No .. The section is not intended to cover such Inadvertent· delays or watching and spying tricks like an old mark in the game reserves. ·· It is in practice that court's documents are obtained upon payment of requisite court fees. •The trend is clear.ly · manifested 6n what the respondent's counsel did. However, for reasons i not disclosed, the appellants with their advocate could not make a follow up of paying the requisite court fees of obtaining the copies timely. No court worth of the name will accept that the 5 years time taken by the appellants without collecting the certified copies while they were ready for collection is the requisite time intended to be· covered under S.19(2) of the Law of Limitation Act. It would require Labourers from Sysphous to persuade me to agree that the present appeal was filed within time. In the upshort, I am of the view that the arguments made by the • appellant's counsel though not lacking in attractiveness are with no merits~ Had it been that this was an application for -enlargement of time to file th~-- said ··-a~peal out of time perhaps I could have came to .a_ different' conclusion. That been said, I. subscribe to the respondents' counsel arguments in . . total and I hold that this appeal is hopelessly time barred and it deserves to suffer a dismissal order as I hereby do. .. 6 As the 1st Preliminary Objection disposes the matter, I don't find it . ', . ~ necessary to dwell on the 2nd Preliminary Objection. :·•,.::: !•· ! . . ., ,· ·-., • This ~ppeal is therefore dismissed with costs for been· time barred. • : '•: •- - ,• ;,, .. I ~, ;-<:'; S. B. Bongole ·-, ·r JUDGE: 28/3/2014 '; - . ~ . ~ , 28/3/2014 Cdram: ?-B. Bon·gole,J , ' For the Appellant: Mr. Mchome Waziri ,For the Respondent: .. In person C.C. Mrangi · C~urt: Ruling delivered. S. B. Bongo le . .JUDGE .. 28/3/2014 Right of Appeal explained. I 'I S. B. Bongole JUDGE 28/3/2014 7 . . .I I