unilever tanzania limited vs k s makundi 2013 tzhc 2023 29 november 2013

IN THE HIGH COURT OF TANZANIA AT TANGA CIVIL APPEAL NO. 1 OF 2011 (Originating from Resident Magistrate's Court of Tanga at Tanga Civil Case No. 31 of 2007) UNILEVER TANZANIA LIMITED................................. APPELLANT VERSUS v, K. S. MAKUNDI........................................................RESPONDENT / !•' 1 - J C. • % JUDGMENT Ruqazia, J. The appellant who was aggrieved by the decision of the Resident Magistrates' Court appealed to this Court to challenge it. However, the respondent came up with a preliminary objection that the appeal is hopelessly time-barred and, therefore, it ought to oe dismissed. The respondent's grounds for so contending are that judgment of the lower court was delivered on 14th December, 2009 and certified on 5th July, 2010 ready for collection. As for exclusion, the respondent submitted that the period when judgment was being typed until when it was ready for collection is in law excluded as provided under section 19 (2) of the Law o f Limitation Act, Cap. 89 R.E. 2002 which says; "(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review o f judgment, the day on which the judgment 4 complained o f was delivered, and the period o f time requisite for obtaining a copy o f the decree or order appealed from or sought to be reviewed, shall be excluded" It was contended and not disputed that judgment was delivered on 14th December, 2009 and the appellant wrote an application letter to be supplied with copies of judgment and decree plus intention to appeal on 4th January, 2010 which was received on 15th January, 2010. The respondent submitted further that despite taking the above steps, the appellant did not care to make any follow-up to obtain copies of the said documents. The same, so contended respondent, were certified on 5th July, 2010. In this case respondent asserted that the period of limitation to appeal has to be computed starting from 5th July, 2010 when the right of action in respect of filing the appeal accrued. According to the respondent, the period within which to institute an appeal of this nature is thirty days. He referred to section 25 (b) of the Magistrate's Courts Act, Cap. 11 R.E. 2002 which provides: i * "25 (b) in any other proceedings, any party, if aggrieved by the decision or order o f a district court in the exercise of its appellate or re vision a! jurisdiction may, within thirty days after the date o f the decision or order, appeal therefrom to the High Court; and the High Court may extend the time for filing an appeal either before or after such period o f thirty days has expired" In the light of this provision, since the appellant filed the appeal on 24rh February, 2011 while the period of appeal expired on'the 4th August, 2010, it means that the appeal was filed after expiry of 234 days so it is hopelessly time barred. That being the case, it was prayed that the appeal be dismissed with costs. Responding, the appellant submitted that the appeal was filed within time because while it is true that the judgment subject of this appeal was delivered on 14th December, 2009, copy of it was ready for collection on 5th July, 20id and copy of decree'ready for collection on 6th February, 2011. Appellant contended that time to appeal started to run from 6th February, 2011 and this appeal was filed on 24th February, 2011 well within time. The appellant was emphatic that the decree could not be extracted because the court said the same could only be extracted once the application for stay of execution is heard and decided. The appellant asserted that in the absence of the decree no appeal could be filed as it is mandatory to attach it with copy of judgment and decree. To beef up its argument, reference was made to Order XXXIX Rule l(i) of the Civil Procedure Code, Cap. 33 R.E. 2002 which provides as under: (1) Every appeal shall be preferred in the form o f a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of Xhe decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded " Thus, it was stated, much as the appellant had a copy of the judgment by 5th July, 2010 still no appeal could be filed without copy of decree. Since it was not the appellant's fau.lt, it was submitted that it should not be blamed for the court's fault. Appellant's Counsel went on submitting that there is no legal requirement for the appellant to keep on reminding the court to forward the documents to it once an application is made as contended .by the respondent's Counsel. Reference was made to the case of Transcontinental Forwarders Ltd vs Tanganyika Motors Ltd (1977) TLR 328 where it was held: " ........... I wish to say only that reminding the registry after applying for a copy o f proceedings etc. and copying the request to the other party may indeed be the practical and realistic thing to do, but it is not a requirement o f the law Appellant's Counsel also pointed out that the respondent's Counsel erroneously submitted that the applicable provision for instituting appeals to this court is section 25(b) of the Magistrates' Courts Act. It was appellant's Counsel's submission that the said provision apply only when a district court is acting in its appellate or revisional jurisdiction which is not the case here as the court in this matter was acting in its original jurisdiction. Hence, it was contended, the relevant provision for filing an appeal of this nature is the Schedule to the Law o f Limitation Act, Cap. 89 R.E. 89 part II item 1 o f Column one which provides for a period of 90 days. This point cannot detain us longer because section 25(b) of the Magistrates' Courts Act is clear. The period of 30 days for filing an appeal under that provision is applicable only when a district/Resident Magistrates' Court is exercising appellate or revisional jurisdiction which is not the case here. Be that as it may, the only point of contention in this matter is at what point the cause of ^ctign ..accrued. Both.parties are at one that copy of judgment was ready for collection on 5th July, 2010. They depart on when the decree was extracted and ready for collection. While the respondent contends that it was ready on 5th July, 2010 the appellant contends that the court said'that the decree could not be extracted until the application for stay of execution is heard and determined. It was therefore asserted that the same was availed to them on 6th February, 2011. However, it has to be pointed out that the allegation that the court said so is, with due respect, without any proof. While it might be true that there was a delay in supplying copy of the decree to the appellant, the allegation by the appellant is not even supported by the court record. Faced with such a state of mix-up and/or uncertainty, I do not think it was proper for the appellant to proceed to file the appeal as he did for the simple reason that he was already time-barred. As the date when the decree was ready for collection remain contentious, the appellant should have filed an application to file the appeal out of time. Since this was not done it means that the appeal which was filed out of time cannot be allowed. The same ought to be dismissed which I now do and do so with costs. \ A" v V \ DATE: 29/ 11/2013 CO RAM P. C. MKEHA, DR APPELLANT Absent RESPONDENT: Mr. Chanjarika for C/CLERK: Noel