20100608 TZCA Dar es Salaam

I IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MSOFFE, J.A.,KIMARO J.A. And LUANDA, J.A.) CIVIL APPEAL NO. 64 OF 2006 1 THE REGISTERED TRUSTEES OF THE MARIAN FAITH HEALING CENTRE @ WANAMAOMBL ...............................:........... APPELLANTS VERSUS THE REGISTERED TRUSTEES OF THE CATHOLIC CHURCH 1 SUMBAWANGA DIOCESE .......••.•.•.....••••......••...••••••.••••••••..• 1• • • • • • • • • RESPONDENTS I {Appeal from the Ruling and Order of the High Court of Tanzania at Sumbawanga) I - {Mackanja, J.) dated 8 th day of September 2004 1 in Civil Appeal NO. 23 of 2003 JUDGMENT OF THE COURT 4 th & 15th June, 2010 MSOFFE, l.A: This is an appeal against the decision of the High' Court of Tanzania i sitting at Sumbawanga (Mackanja, J.) dismissing DC Civil Appeal No.23 of ' I 2003 arising from Civil Case No.1 of 2000 of the Resident Magistrate's I Court of Rukwa at Sumbawanga. The main reason for the order of I I dismissal was that the appeal was time barred. In holding so, the judge I 1 opined that the reason given by Mr. Stephen Maufi in his affidavit deponed to on 12/7/2004 in explaining away the delay in securing a copy of the decree was based on hearsay. At the hearing of the appeal Mr. Sylvester Eusebi Shayo, learned advocate, appeared on behalf of the appellants. The respondents were absent. Following the absence of the respondents, we had to first satisfy ourselves with the authenticity or otherwise of the respondents' service before taking any further step in the matter. In this regard, Ms. Elizabeth Mkwizu, the Deputy Registrar of the Court of Appeal, availed to us three documents showing that service on the respondents was effected. The first one was the notice (summons) of the date of hearing issued on 15/4/2010. We may pause here and observe in passing that the notice of the date fixed for the hearing of the appeal was given by the Registrar within the period of fourteen days prescribed under Rule 108 of the Tanzania Court of Appeal Rules, 2009 (hereinafter the Rules). The second one was the affidavit of Mr. Benedict Kauzeni, a process server attached to the Sumbawanga Urban Primary Court. The third and final document on this point was the certified entry in the dispatch book of Mr. 2 Stephen Maufi indicating that on 20/5/2010 Sr. Adolphira Kachira signed I in acknowledgment of the notice of the date fixed for the hearing of this appeal. I Of particular interest to us on the above subject Je the averments under paragraphs 2,3 and 4 of Mr. Kauzeni's affidavit deponed to on 31/5/2010 as follows:- 2. On the 2dh day of May 2010, I received from STEPHEN I MAUFI summons issued by the Coirt of Appeal of Tanzania in Civil Appeal No. 64 of 2006 between the ' Registered Trustees of the Marian Faith Healing Centre @ Wanamaombi Versus The Registered i Trustees of the Catholic Church Sumbawanga Diocese for I service on The I Registered Trustees of the Catholic Church I Sumbawanga Diocese. ! I 3. The said Registered Trustees of the Catholic Church Sumbawanga Diocese was at the tirile known to me, and I served the summons on the 2dh qay of May 2010 at about 09.00 o'clock in the morning by tendering a . I I 3 I copy thereof to Rev. Fr. EMILY LUA(iA through Sr. ADOLPHINA KACHIRA and requiring I½is signature to the original summons. Fr. EMILY LUA GA refused to sign I the said summons saying that it sh~uld have been I delivered in an envelope because of the status of their ' i office. Sr. ADOLPH/NA KACHIRA acknowfedged receipt of the summons on a DISPATCH BOOK of MR. STEVEN I I I MAUFI who accompanied me to the BISHOP'S HOUSE but I refused to sign· on the original of the ~aid summons. I enclose hereto the dispatch book which was signed by Sr. I KACH/RA. I I 4. That both Fr. EMILY LUAGA and Sr. ADOLPH/NA KACH/RA I I were identified to me by Mr. STEPHEN MAUFI to whom ! I both were personally known and I left a copy of the I summons at the BISHOP'S HOUSE where the I I Respondents reside and carry on their official business. On the basis of the above documents we were satisfied that there was I i good service on the respondents. In fact, in terms of Rule 22(1) of the Rules that ''service may be effected in accordance with tl1e I procedure and 4 practice of the High Court under the provisions of the Civi1i Procedure Act'; I in accepting service of the notice Sr. Adolphina was in effect doing so as an I ''agent' or a "subordinate' of the respondents by virtue of the provisions of I I Order V Rule 9 (1) of the Civil Procedure Code (CAP 3i3 R.E 2002). I I For the above reasons, we accordingly invoked the prbvisions of Rule I 112(2) of the Rules and decided to proceed with the det~rmination of the ! I appeal in the absence of the respondents. 1 I I Mr. Shayo filed a five-point memorandum of appeal. iin the course of I I arguing the appeal he abandoned the fifth_ ground and add~essed I us on the i remaining grounds. On those other grounds he submitteql, quite correctly I in our view, that they all centre or crystallize on one major ground of - I complaint. That the High Court erred in holding that the !appeal before it I was time barred. On this, Mr. Shayo carried us through ~he Ruling of the I High Court. In the process he urged that the statement ~Y the judge that I the affidavit of Mr. Stephen Maufi regarding a person who told him that the I - documents were not ready for collection was hearsay. A~d I that in similar . I vein, the judge erred in saying that in the absence of an affidavit by Mr. 1 I Dyansobera, the District Registrar, that· he ordered a ~ertain typist to , I ensure that proceedings were typed in good time, the assertion by Mr. - I 5 I Steven Maufi in his affidavit on the point was also hearsay. According to I , I ' Mr. Shayo, that information was not hearsay by virtue of the statement I made in the decision by the Privy Council in Subramaoiam v Public I Prosecutor (1956) 1 W.L.R 965 at page 970 that:- ..... Evidence of a statement made to a witness ! by a person who is himself not called as a witness I I may or may not be hearsay. It is hearsay and I I inadmissible when the object of the evidence is to I I establish the truth of what is contained in the I statement. It is not hearsay and is admissible when it I is proposed to establish by the evidence/ not the truth I of the statement but the fact that it was made~ The fact that the statement was made/ quite apart ft,om its truth/ is frequently relevant in considering the inental state and conduct thereafter of the witness or of! some other person in whose presence the statement was I made... I While on this point, Mr. Shayo also maintained that if ~he respondents I ! before the High Court had any misgivings about Mr. !Stephen Maufi's 6 I affidavit they could have as well secured an affidavit from: Mr.Dyansobera to say something on the point. ·In this sense, Mr. Shayo cited to us a i passage from this Court's decision in Nicomedes Kajungu and 1374 others vs. Bulyanhulu Gold Mine (T) Ltd, Civil Appli~ation No.48 of I 2008 (unreported) at page 5 thereof, that:- ! ... If Mr. Mwandambo thought that this was an I I important point he could have as well obtained the I Registrar's affidavit with a view to showing that I the I averment by Mr. Nassoro and Mr. Mlandula ~n the I point were not true. As it is, in the absence of such affidavit there is no basis for faulting Mr. Nassofp and Mr. Mlandula that the notice was actually signe(f and released for service on 31/3/2008. I With respect, it is not our intention or desire to belittle or downplay the I I importance and significance of Mr. Shayo's submission, as demonstated I I above. It occurs to us, however, that the appeal can best be determined I i without necessarily resorting to the apparent long and intonclusive route 7 ' taken and impressed upon us by Mr. Shayo. We will henceforth determine I ' the appeal on the basis of the record before us and the la,w applicable on the matter. In our understanding and appreciation of the record ~nd the law it is I evident that the judgment of the Resident Magistrate's Co'urt (Shaidi, RM) was delivered on 2/5/2003. Mr. Shayo wrote a letter to the Court applying I I for certified copies of the proceedings, judgment and decr~e with a view to preferring an appeal to the High Court. He copied the lett~r to Mr. Materu, ' I learned advocate, who was by then representing the respondents. Copies I of the letter were received by both the Court and Mr. Materu on the same date, that is on 2/5/2003. In the meantime, on 3/5/2003 :Mr.Materu wrote a letter to the court expressing the respondents' desire or intention to cross-appeal against that aspect of the judgment which o~dered each party ' to bear its own costs. The record before us does not indicate whether the ' I intention to cross-appeal was ever pursued. Presumably, it was not I pursued because the main appeal was dismissed for b~ing time barred. Anyhow, the judgment was certified on 1/7/2003, to suggest that it was I ready for collection as from that date. Indeed, in the affidavit of Mr. ' I Stephen Maufi deponed to on 12/7/2004, and specifically: under paragraph I 8 i .. 3 thereof, he averred that he received the certified copy bf the judgment I on 1/7/2003. As to what happened thereafter on the availability of copies of proceedings and the decree, we can safely say that this ~as a long story ' i which is best captured under paragraphs 4, 5 and 6 of Mr.' Stephen Maufi's affidavit thus:- 4. That I continued to make a constant fo(low up every week and was consistently asking \when I can collect the said certified copies of proceedings. I I 5. That after much struggle HON.DYASOBERA I I ordered a certain typist to make sure that the I proceedings are typed as requested. The said I I typing was done and on 15/10/2003 I oftained copies of the proceedings which I forwar:ded to I Mr. SHA YO. That upon obtaining the certified copy of proceedings I started to follow !up the certified copy of decree. I visited thJ court many times but the answer was alwa~s the I same. They are not ready. On 5/11/2003 I 9 I I I I wrote a letter to the Resident Magistrate 1 copy ! of which I enclose herein marked Annexure I M1 requesting for his assistance in obtaining the I, copy of the decree. I 6. That despite the letter marked Annexure M1 hereto no decree was supplied On 14/11/2003 I I wrote a ve,y serious letter copy of ~hich I exhibit hereto marked Annexure M2 in~ending I to lay a complaint before the Prevention of I I Corruption Bureau (PCB). But when I read that , I i letter to MR. SHA YO on the phone he told me I (from his office in DSM) not to make the formal I I complaint to PCB but keep on requesting the I I assistance of the Magistrate in-charge. I did not . I I therefore send that letter. Instead I kept ! following up at the Court until on 15/12/2003 I when I received a copy of the decree which I had paid for on 3/12/2003. The said decree I was I signed by Hon.DYANSOBERA. A copy of t~e said 10 decree which is marked Annexure M3 he,:eto is ! dated 2/5/2003 although the said magistrate arrived at SUMBAWANGA in August 2003. : I I The averment under paragraph 6 of Mr. Stephen Maufi's affidavit that I he received a copy of the decree on 15/12/2003 drew cdticism from Fr. Mathias Maufi in his counter affidavit deponed to on 13/7/2004. Under I paragraph 5 thereof, Fr. Mathias Maufi averrted as follows:-: 5. That the respondent maintains that : the I ' decree was issued on Z1d of May 2003 and the I appellant's negligence in not collecting, the same in time is not a problem to be shifted to I the court or the respondent. With respect we think that, at this juncture, it is pertinent ,and appropriate to address the rival and conflicting averments by Mr. Stephen Maufi and Fr. I Mathias Maufi on the actual date of issue and receipt of a copy of the ' decree by the appellants. On this, we are of the view that Fr. Mathias I Maufi was not correct in the above assertion. We think that he was I 11 probably misled into believing that the appellants herein rec~ived a copy of the decree on 2/5/2003. We say or rather think so, for reasons which we will demonsrate hereunder. It is not in dispute that the judgment was certified on 1/7/2003. Under ' Section 2 of the Civil Procedure Code (CAP 33 R.E 2092) a decree is the formal adjudication of a suit which, in so far as the court expressing it is concerned, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. In. other words, a decree constitutes the final adjudication of the matters in dispute whereas a judgment is merely a statement of the reasons in support of the decree. So, under the Civil Procedure Code on which depends the right of appeal, the decree and judgment are composite documents which together constitute the adjudication of the court. It is no wonder that normally an I appeal lies against a decree which is the formal adjudication of the court expressing it. In this sense, it is evident that the deqree follows the I judgment. Indeed, if we may digress a bit here, it is also, no wonder that both under the Civil Procedure Code and the Tanzania Court of I Appeal Rules, 2009, applications are made for stay of execution of a 12 I I I I I I decree and not a judgment. Anyway, to come back to the point, we think I I that it was inconceivable and highly improbable that the judgment could be certified on 1/7/2003 and the decree (which is supposed: to follow the I ' I judgment) be issued on 2/5/2003 as averred by Fr. Mathi;as Maufi. We I I think that the position was, as stated by Mr. Stephen ~aufi, that the decree was actually issued to the appellants on 15/12/200~. In fact, we ' I I are supported in this view by the fact that ERV No. 1812715;9 issued by the I I I Resident Magistrate,Rukwa shows that on 3/12/2003 the appellants paid a I sum of shs. 1,500/= being fees for a copy of the decree in:civil Case No.1 I I I I of 2000. Therefore, having paid for a copy of the decree on 3/12/2003,it I ' was practical and appropriate that a few days lat~r, that is on I ' 15/12/2003,they were availed with a copy of the said dedree. Thereafter, ' I there is no dispute that they duly filed the appeal on 19/12/2003, which I I was only four days after receiving the copy of the decree. : I I I I I I I At this point in time, we think it is important . to digres$i again a bit and I make the following point. A look at the decree in issue: shows that the I I 11 words Given under my hand and seal of the Court this" VJere followed by I I the insertion of the date of ''2'1d day of Ma½ 2003" ! after which Mr. 13 i I Dyansobera, a Resident Magistrate, duly signed it. Under Order XX Rule ( 7 of the Civil Procedure Code (CAP 33 R.E 2002) the date: of "Z1d day of May 2003' was actually the date of the decree because tha~ was the date I of pronouncement of the judgment. In this sense, it was quite possible, and indeed very probable, that Mr. Dyansobera actually sigr:}ed the decree on a date different from that of 2/5/2003. Whatev~r might have happened, the decree whenever it might have been prepared and signed ' cannot possibly be made to bear a date other than that of the date of the judgment. In other words, it is not the law that the date of; the signing of I the decree is necessarily the date of the decree - See .also Uniafrico Limited and two Others vs. Exim Bank (T) Ltd, Civil Appeal No. 30 of 2006 (unreported). In this case, there is no dispute that under item 1 ofi Part II of the Schedule to the Law of Limitation Act (CAP 89 R.E 89) the appellants ought to have appealed against the decision of the Re~:ident Magistrate within a period of ninety days. There is also no dispu~e that Section 19(2) of the said Act provides that:- 14 (2) In computing the period of limitation prescribed (or an appeal, an application for leave to appeal, or! an application for review ofJudgment, the day on which /the Judgment complained of was delivered, and the pe~iod of time requisite for obtaining a copy of !the '' decree or order appealed from or sought to be ' ' reviewed, shall be excluded. (Emphasis supplied.) In view of what we have endeavoured to show above, ~nd in the light ; of Section 19(2) (supra), it follows that the period betwee~ 2/5/2003 and ,, 15/12/2003 when the appellants eventually obtained a copy of the decree ought to have been excluded in computing time. Once ~hat period was I excluded, it would again follow that when the appeal /was lodged on 19/12/2003 it was infact and in law not time barred. Before concluding this judgment we think it is also important to make one other point. As already observed, the appellant.s, through their advocate Mr. Shayo, applied for the copies of proceedin~s, judgment and ' decree on 2/5/2003. Thereafter,there was no serious/ dispute that Mr. 15 Stephen Maufi made a number of follow ups to the court in question in quest for the said documents. We wish to state here that niuch as the frequent follow ups was the practical and the realistic thing t9 do, in law Mr. Stephen Maufi had no obligation to do so. The Registry concerned ought to have acted reasonably and diligently well without necessarily being reminded over and over again to ensure that the appellants were availed with copies of the documents. In fact, if we may' respectfully . borrow the words of wisdom by Makame, J.A. in Transcontinental Forwarders Ltd. v Tanganyika Motors Ltd (1997) TL~ 328 at page 330, after applying for the certified copies of the above /documents on I 2/5/2003 the appellants were "home and dry." This view also finds support in the Indian case of Krishnappa Ramasa ! Walvekar v Ramchandrasa Ramasa Walvekar and others, AIR 1973 Mys (DB),cited to us by Mr. Shayo,that:- Once the appellant makes such an application, the mere fact that he has made an application but has not been furnished with a copy, without any default in I his part, is sufficient to entitle him to secure exclusion I 16 I of the period from computing the period of limitation for appeal. I When all is said and done, we are of the settled view that there is I • I merit in the appeal. The High Court ought to have addres$ed itself more carefully on the record before it and the applicable law in d~ciding whether I I or not the appeal was time barred. The judge ough~ not to have I I I determined the issue of time bar solely on the assumption that the affidavit I I of Mr. Stephen Maufi was based on hearsay. By the ~ame parity of i reasoning Mr. Shayo ought to have addressed, or rather ht~hlighted to us, I the .main, key and salient features evidenced in the docurrents on record and the applicable law in arguing that in fact and in law: the appeal was I not time barred. As it is, we have determined the appeal :mainly by virtue I I I of our own understanding of the record and the law. : I I We hereby allow the appeal. The High Court is directed to re-constitute I I I I itself and determine DC Civil Appeal No.23 of 2003 on !merit. Since, as 17 stated above, the determination of this appeal has to a very large extent been a result of our own effort we make no order as to costs., DATED at DAR ES SALAAM this 8th day of June 2010. J.H. MSOFFE JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL B.M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~~ N.N. CHUSI DEPUTY REGISTRAR 18