20160811 TZCA Dar es Salaam

IN THE COURT OF PPEAL OF TANZANIA AT DAR 'ES SALAAM (CORAM: MBAROUK, J.A.l MUSSA, J.A. And LILA, J.A.) I CIVIL AP PEA NO. 73 OF 2009 . 1. TINA & CO. LIMITED 2. WOLFGANG SPENGLER .......................... APPELLANTS 3. MRS. CHRISTINE SPENGLER V,RSUS EURAFRICAN BANK (T) l TD I NOW KNOWN AS BOA BANK (T) LTb ................................... RESPONDENT (Appeal from the decision bf the High Court of Tanzania, (Commercial Couh) at Dar es Saiaam) (WeJema, J.) j~ay dated the 24 th m of April, 2009 Commercial C. se No. 80 of 2006 __I_ ____ _ I RULING OF THE COURT 3 rd & 1sth August, 2016 MUSSA, J. A.: In the High Court of Tanzania (Commercial Division), at Dar es I Salaam, the respondent, a bank·ng institution, successfully sued the . appellants for the recovery of sums of Tshs. 45,799,888.39 and US$ 7,101.91 which were allegedly oLng on account of overdraft facilities that were extended by the respon!ent to the first appellant. The liability 1 of the second and third gppellants /was dejured fro\17 their respective personal guarantees which they executed in favour bf the respondent . as security for the overdraft facilitils. I The appella;nts are aggrieved I • upon a memorandum of appeal comprised of four points of grievance which we need not recite. When the appeal was called on for hearing before us, the appellants were represented by Mrj Audax Vedasto,: learned Advocate, i whereas the respondent had the services of Mr. Dilip Kesaria, also I · learned Advocate. ~s the learned counsel for the; appellants geared . . . I towards arguing the appeal, we p/°mpted him to comment upon two : . disquieting features which are apparent from the record of appeal. The I first, relates to the letter through which the appellants applied to be I supplied with certified copies of the proceedings, judgment and drawn I order of the High Court for appeal purposes . The irony is that it is not i apparent from the body of the letter, which is annexed at page 833 of I I the record of appeal, that the same was copied and served on the I . respondent. It is common ground that, on the strength of the impugned letter, the Deputy Registrar issued r certificate of de_lav under Rule 83(1) of the defunct Court of Appeal Rules, 1979 (the old Rules) excluding the I 2 period from the 28th April, 2009 to the 14th July, 2009 in computing the time within which the appeal was to;be instituted. Thus, in the light of· . I the certificate, the appeal was formally lodged on the 27th August, 2009. Second, we invited Mr. Vedasto's comment on some documents which ' were mentioned in the record of proceedings and, yet, the same have been omitted from the record of appeal. These are, a Ruling delivered I . th on the 13 March, 2007 which is referred at page 1d7 of the record; a letter appearing as item 9 (page 1i3) of the list of: documents to be I I relied upon by the plaintiff (the respondent here:in); and a letter • I appearing as item 6 (page 315) of the list of documents to be relied upon by the defendants (the appellants herein). ' As regards the first issue. of enquiry, Mr. Vedasto seemed to ' suggest that the Court should not b~ concerned to raise the issue of the non-service of the impugned letter in a situation, such as the present, ' I • .where the respondent did not complain. The Court, re urged, " .. .has, rather, to take that service was done unless a party who was to be served aUeges and proves non service." As to the mode of . , I proof, the learned counsel for the appellants referred to the decision of 3 the Court in Sebastian Kinyondo Vs Dr. Medard Mutungi [1999] TLR 479 where it was observed: 11 ••• where in the preliminary objection the respondent alleges that he was not served with a copy of the notice of appeal within seven days of the Notice ofAppeal he has a greater burden .· to discharge than the appellant .. // Coming to the second issue of our concern, Mr. Vedasto conceded that the Ruling which was delivered on the 13th March 2007 is not annexed to the record of appeal. Nonetheless, he was quick to rejoin that the Ruling was, after all, not contemplated in the list of documents which were required to be contained in a record of appeal as enumerated under Rule 89(1) (a) to (k) of the old Rules which were applicable at the time of compiling the record. In the premises, he concluded, it was needless for the appellants to have to annex the Ruling in the record of appeal. Speaking of the two referred letters which were appended in the list of documents to be relied upon by, respectively, the plaintiff (respondent) and the defendants (appellants); Mr. Vedasto contended 4 ',- that Rule 89(1) (f) of the old Rules oqly contemplated such documents which were put in evidence at the he?ring as distinguished from those I which were listed as being desired for production. He, therefore, ! contended that inasmuch as the two letters were not put in evidence, it I was unnecessary for the appellant to attach them in the record of appeal. I In response, Mr. Kesaria vigorously contended that the letter through which the appellants applied to be supplied with the records of the High Court proceedings is materially inadequate for not being copied I to the respondent. The learned counsel for the respondent submitted I that the fact that the respondent did not raise a preliminary objection I would not preclude the Court from intervening where appropriate. Mr. I Kesaria urged that since there is no indication on the face of it to the effect that the letter was served onl the respondent, the inescapable consequence is that the appellant should not be allowed to rely on the I certificate of delay issued by the Deputy Registrar. That being the I situation, the appeal was required to be lodged within sixty days from I I the 28 th April, 2009 when the Notice of Appeal was filed and, having s: been lodged on the 24th August 2009, he said, the appeal is hopelessly out of time and, accordingly, he prLed that the same be struck out. As regards the second issue of enquiry, whilst conceding that it was needless to annex the two lettlrs which were not put in evidence, I Mr. Kesaria urged that the Ruling which was pronounced on the 13 th March, 2007 ought to have been Jannexed in the !record much as it constituted part of the interlocutory proceedings envisaged by Rule - I - 89(1) (k) of the old Rules.. Thus, he concluded, to the extent that the I record of appeal was just as well ihcomplete, the appeal is, similarly, incompetent and, on that score, it lhould be befallen by the same fate of being struck out. Having heard the learned rival contentions, we propose to first address the issue relating to the litter through which the appellants . I applied to be supplied with certified :copies of the High Court documents for appeal purposes .. As hinted upot the issue was Jaised by the Court I : - suo motu and, for that matter, we should clearly express from the very outset that the Court is not preclude1 from raising the issue even where, as here, the respondent did not fotally complain that the letter was 6 __L_ r. !: . I • not served upon her. On the conJry, it was incumbent uponus to . :[ I . raise the issue so as to satisfy ourselves that the appellants are entitled to the certificate of delay that was iss~ed by the Deput Registrar in the wake of the request for the docume:,nts which was made through the impugned letter. As it were, our tquiry was necefsitated by Rule 83(1) and (2) of the old Rules which governed the adpeal at hand and 1 which made provision as follows:- ! ''83(1) Subject to the pralisions of Rule 1 ,7, an ; I appeal shall be instituted by lodging in the I. I appropriate registr½ with{n sixtydays of th da.te ,I I when the notice of appeiH was lodged- i I I: (a) a memorandum j of appeal in quintuplicate; (b) a record of appeal t quintuplicate; (c) Security for the costs of the appeal;l save that where ah application for . copy of the proceedingsl! in the High coJt has 1, 7 :'I, . i of the decision ag~1nst which it is qesired ' I I to appeal there ~hall in computing the ,, time within which the appeal is to be i institutecl be exc/1Jded such time :s may be certified by thi Registrar of thk High . i ;: I I ': I Court as having l~een required for the preparation and delivery of that Jopy of the appellant. 2. · an appellant shall not be. entitled to rely on the exception to sub ru,le {1} unless his applfcation for the, copy: !, 1 was in writing and a copy ,of it was sent to the re$pondent". [E~phasis I supplied] I I , I I I I · I I The balded sub rule (2) tells i ~ all: For an appellant to be entitled to the proviso to Rule 83(1), of the tld Rules, it is im~erative upon him to serve the respondent with a ccbpy of the lette~ applying for· the proceedings of the High Court. It is noteworthy that the requirement i i 31I n I, ti I ; I was replicated in Rule 90(1) and (2) of the present Tanzania Court of Appeal Rules, 2009 (the Rules). Thu~, the consequential question which necessarily presents itself in the sitJation at hand is whether or not the impugned letter was served upon tt e respondent.. The question need not detain us, the more so as on, at least, two previous occasions the Court had to grapple with a corresptnding issue asto whether or not a I . Notice of Appeal was served on a respondent. Such was an issue of i concern in Civil Appeal No. 107 of 2008 - Wilfred Muganyizi Rwakatare vs Hamisi Sued Kagasheki and Another (unreported), where the Court observed:- 11 There is no indication by signature/ rubber I . stamp or whatever to prove that the 1st Respondent ever receivJd the Notice of Appeal. I I , 1 We are of the firm view that if the pt Respondent had been duly served Lth a Notice of Appeal I in person or through his advocate/ whoever received the Notice ofA)peal would have $igned . I ; and such signature would be apparent to prove . // service.... 9 I I The foregoing decision was subscribed and followed in another I I unreported Civil Appeal No. 53 of 2007 - Rowland Faini Sawaya t/a j I Sawaya !Bus versus Corne! K. tarimo and Another where the Court stated:- II service of the Notice of Appeal on a respondent must be apparent on the face of the ./ Notice itsell such as by his signature or stamp or that of his advocate,.~ ; i I By analogy, we so find, servicJ on a respondent of a copy of the . I ; letter requesting for proceedings of the I High Court must be apparent on the face of the letter itself such as by the respondent's signature or, as I I the case may be, by the stamp and signature of his advocate. I . No such proof of service is apparent on the face of the impugned i letter and, that being so, the appellarts would not be entitled to rely on • the certificate of delay issued by the 'Deputy Registrar. In the absence of the certificate, it is beyond que stion that the appeal was lodged 1 outside the prescribed sixty days ahd the same is, so to speak, time ' I barred and incompetent. Having SQ adjudged, we are constrained to I I 10 ... ~ I . • • st1·ike out the appeal Jnc!, si11Cc we need no!: dc\:crrn:inc I.his rnc:iltcr rnorc than is r1eccssary for its disposal, vvc 1-c~rrain r,·01l1 I n1aking zJny fi1,ding with respect to the othc1· issue of ou1· cnqui 1·y. /-\s t:hc issue of incornpete1Ke was rc)isec! suo motu by the Court, \VC n-1akc 110 orcJcr JS . I to costs. DttTED at D/\R [:S 5/U_/Jd.\M this 11 th day qf /-\ugust, 2016. I I( M. MUSS/-\ JUSTICE Ot: APPE/4.[_ I certify that this is a true copy of the original. aPIKYA 11 I I_