20130328 TZHC Dar es Salaam1

I , ' .I .,1 i I ' IN THE HIGH COURli OF TANZANIA · • I AT DAR ES SALAAM ' CIVIL APPEAL NOj 26 OF 2013 . ! • · (Originating from Resident Magistrate Kisutu Civil Case No. 13 of 2004) TA.NZANIA INTERNATIONAL· CONTAINER SERVICES LIMiTED ................... ~ ............ APPELLANT ' VERSU S 1 I •• 1 • BOULANGERERIE SAINT THOMAS ... ~ ............... ·.......... RESPONDENT . I I bate. of Last Order_: 3/12/2013 Date of Ruling: 28/3/2013 I I I • I, RULIN G· 1 i Bongole,l . ,, This ruling is in respect .of Preliminary Objection raised by the . ' . respondent against the appellant~s appeal. Two Preliminary Objection. have I been raised, thus::- .i 1. That the appeal is ·hopelessly tim.~ barred, and .2. T~at the appeal is bad in law . ·1 ,I It is significant to appreciate the ab!J.reviated facts of the appeal in a : skeletal form before dwelling on the preliminary objections. i .·. ·" I 1 • Broadly, the respondent instituted a daim against Overseas Trading Company N.V and Tanzania International container Terminal Services Limited as the 1st and 2nd defendants respectfully before RM's Court of Dar es Salaam at Kisutu Civil Case No 13/20Q4. Judgment . was delivered in favour ·of the respondent/plaintiff . on the 4th . . nd July, 2007. It appears that the 2 defendant was· aggrieved by the said decision hence he applied to be provided with copies of proceedings; Judgment and decree so as he may lodg~ his appeal. Copies were ready. fOr collection on the 29th February, 2008. . . th On the 19 March, 2008 the counsel for the respondent was ·supplied· . with. copies of Judgment and decree ha~lng paid court fees 2,000/= vid~ .. .... · exchequer receipt No 30508005. The counsel for the respondent Mr. Said Elmaamry filed a Bill of Costs on the ~rd day of April, 2008. • The appellant who was.the 2nd defendant in the _legal services.of M~ono Advocates filed a notice of Preliminary Objection against the bill of costs on the ih October, 2008. The ruling on . bill of costs was delivered . on . ·,8th Oc;:tober, 2008. The Advocate for the appellant wrote a later dated 10th October, 2008 to the RM's Court requesting to be supplied with certified copies of the ruling so as h_e may file a reference to a single Judge of _the t High Court. · Equally, Mr. Said Elmaamry applied for the same copies vide his letter dated 13th October, 2008 where he was· supplied on the 23 rd October, 2008 having paid Tshs. 1,500/= vide exchequer receipt No 22564825as court fees. -• 2 •• fj.·•. .; ··::'.. > : ~ ~ : , : . . . .: - : ~ : ~ ~ ' .... '- ~-. ~· • ' - - ;' ... : - , :.:. . . . . ,1 • , • 't, .: r '," • • • ~ h O "?:/f. , ~ I ·_···.The· respon_dent applied· for ·execution of the courts decree on the 6th .,., . . ' July, 2011. ·. l, ~ Th~ ··appelfamt. 'coilected the. certified :copies of proceedings Judgment •.·and.decree on the 5th Feb.ruary, 2013 ~nd preferred the present appeal on th~· i."i~h F~~~-u~ry 2013~ i. The said appeal is now attacked by way of th~ .,, .. : ,. . . .;.. ;. ~ ' ; '. - .. ', .., ... . two preliminary objection as shown above . . The· le~i°ned counsels fvfr Waziri _.Mchome for the appellant and Mr ··Harold S~ngusia ~ for '°the 'respondent opted to -dispose the Preliminary Objection ra.ised by way of written submissions. , ';- ~><; ,•· ,' ," 1, ~ ' ~ . !I" • , • «,: c_ :• • Mr. Sungusia submitted that the ~espondent herein is a resident of ~ -~ ~o office in ·Tanzania. However, he. managed to get .! .~ ' ' • ., • . . Burundi and he has -~.:.:•; f • O -~ ~ ."f_ ~.~•-· :...'M..,-,, • ·--. ~ O",,•' ',, 0 > '• copies of Judgment and decree way ba~k in 2011. That the respondent • I ,• ' travelled all the way from. Burundi and secured the decree two· years prior to; th;~t. ~p~~-u~,n~·- ·who. is a permanent resident of Tanzania and his head _·.' >-- i \""·::::·; -~".:-4. _"' \ ,· .:'~_'... ~" :. '~ : ·"·:·· • ·." .• .. ' ~ offices are based in bar es Salaam some four Kilometers from the ,. >, li_-.J .--:~~)_', ·: . . ,;.•··:.~~--\ : ,.~·-"":'.:__. ~ pr.emises of Resident Magistrate Court at Kisutu. t.'. . .. /"~~- '.~~_,: ,.·' . . ' . .. · That the copies were ready for collection since 2007 but the ,._ ." :.-:r ;:f_,,.,'.' • • . . ~ ~ J, • .• .. •· ,,. • I ; • ," • • •' • • • appellant was pleased to go and collect: the same ·on 5th February, 2013. Tha~ .f~dm :4th July, 2007 'to 11th February, 2013 IS more than 68 months i.e · 5 years and 8 months .. That ·the time limit as provided under the law of Limitation Act Cap. 89 R.E 2002 is 90 days. Further that from the record, the'r'e, isnb-' any docu111~nt showin~ that the appellant sought to extend the +' r ,•_,. time limit for filing 'the current appeal. That since there was no extension of- time sought - and a Preliminary . . Objection i has already been raised, it ,' 3 :1 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 respond_ent ,by arguing that the appellant had been reminding the court to supply the documents despite ' ' 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. ' ' That in this matter, limitation period started to run from 5th 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 of judgement; the· . day pn which judgement complained of was delivered, and the period ' ' of time requisite for obtaining a copy of the decree, or order appealed from or sought to be reviewed, shall be excluded In support of his argument he cited the case of Mary Kimaro 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 of Appeal. It is ftom the· supply of both s~1ch documents that the limitation of time foi·appeal runs" That from the date appellant applied for. such. documents to· 5th February, 2013 was a time requisite for obtaining those docLiment5 and 4 . . th~t .-p~riod. ·has •.-.to. 'be. exclud_~d ...in ~omputing the. limitation period ·for appea_ling. That.thi.s_ appeal ~~s.. filed on 11 th February, 2013 just six days from· the date the appellant got all relevant documents for purposes of • '. ; •.. • : ' • I . ,• ' •' • ,_ appealing._ So.they argue that t~~ appeal was filed within time. < • ~. I owe _.gratitude beyond measure for the persuasive and impressive argLiment~' mad-~ . ' ,. : ,. by .the iea.rne~: counsels in support and against the 1 ., ; . st Preliminary ·point of obJec;tion .. ' i • ~ • ' . ;.: I think, the· main issue -is when time starts ticking against• an ., ' . • 'I' < ,. • aggrieved· part in lodging on appeal. -The ·1aw 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 . . . aggrieved ·part applies for certifkate copies of proceedings judgment and decree for appeal purposes he goes back home for bed rest till when the .. • . . r . court takes those documents to his homestedy . · It is indeed the duty of - ... '""·: .~ \ the litigant(s) to make a follow up of those documents and pays the requisite fees of obtaining the same. t • . . ·. • · From . the record· in this file as I have tried to highlite at the beginning, the copies ·were certified by the trial magistrate. on the 29 th February, 2008 that means, it was a date the same were ready for . collection. The appeila~t could not collect the same till the 5th February, ' . . t 2013 when they paid for court fees and were given 'those copies. Should a brave and wise man sitting on .the bench held· that from when the documents were certified in that me.an ready for collection i.e 29/2/2008 to 5/2/2013 i.e· 5 sold years to be interpreted to mean requisite period of 5 ' ; . 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 no.t intended to cover such Inadvertent delays or watching and spying tricks like an old niark in the-game reserves. 1 It is in practice that court's documents are obtained upon payment of requisite court fees. The trend is clearly manifested on what the respondent's counsel did. However, for reasons 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 app~llants 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 th~ upshort, I am of the view that the arguments made by the appeUant's counsel though not lacking in attractiveness are with no merits . .Had it been that this was an •application for enlargement of tinie to file the said appeal out of time perhaps I - could· have came to· a different conclusion. That been said, I subscribe to the ·respondents,. coum;el ·arguhients in total and I hold. that this appeal is· hopelesslyti'h,.e barred and it deserves to suffer a dismissal order as I hereby do. : 6 . ,·, l,t.• • .. ·--,:;,./ ...."'tCI .. :.r . t·,: Af. fti~·; .-'1 st . Prei'i mrnary bbjectiont·_'.dispdses the ·matter, I don't find it . -~~cessa.ry to d~ii1·d~::th·e . 2ttd·prelir~in~ry bbjection. i \·\ ,... ,, , ' ; ', . ., ' • ; . ' . ... ' . .. • i . . . This appeal is tlie.refore'·dismissed with costs for been time· barrea: .,;·, ::t,~;;-.,~;.< :;i.'l 1:;, t' ·. •i .;"' J 1, • '.,,. ,, . .. • .. ·, · S.B. Borig0le :,•i<· ; t ·,,:J .. ·</ ' .i-'• ...:~ ~.. . .- . . : JUD.GE! . -.~;; .. ·, 28/3/20~4 . . ~;;:,,\;'r~.·:./7-· . }~1:;·.~-~; ~ 28/3/2014 .. ·, <. ~~ •_. i\~:r!; .-,~~, •.. -~ ..-;\,;_;~ 1~ ,r, I ... ; . _,: • Cor,c:1m:·. · · S.B. Bongole) ··., .;:_·\:· , • •, ·j~ ;~~~.-- .,."~ ·, ,4 '., '•·., I· · FRr the Appellant: t ;~·r. Mchome Wazi ,i ·,>·-t.; .· : .":>- •• 'l l\",'f ,.. +. For the Respondent: In person _ .. _ 7· · . ,.... ~ _,:,,~t:;;.,_· · ,..,, '\ c.c., · Mrangi ·· · CciLJ;ai: Ruling delivered. ~. .-· · S.B. Bongole . If . ,;, ' •. ,i. . . . I JUDGE-· ., I -~- ~( i'ft, - .- '.f ,\"" '~ ·. 28/3/~-0~4 · [ I . Right of Appeal explained. >;;: ~ ' -: (1 ...;-:_ ~ ""' ~ ~ ~ >f. .... •• '"Jt .• .. \ --~"' .• \, • I I S. B~ Bon ale · I JUDGE . .I .. 28/3/2014 • I ; 7 .. ,, If" •, --'~_·,:;:·F,_ , .. f : . ' • ··\. -~- i: '. . •1 :··-:· ,: .b:.}ii~i:.~·-:;·.. -.'. ·: ~~.~:i':~.'...:~.·-_,'._