20030926 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 138 OF 2001 BETWEEN USHIRIKA WA WAUZA SAMAKI SOKO KUU MOROGORO ................................................. APPLICANT AND 1. MOROGORO FISH MONGERS } CO-OPERATIVE SOCIETY . . ................ RESPONDENTS 2. MOROGORO MUNICIPAL COUNCIL {Application for striking out Notice of Appeal from the Deci,sion of the High Court of.Tanzania_ at Dar es Salaam) {Ihema, J.) dated the 28th day of September, 2001 at Civil Revision No. 58 of 2000 . RULING MROSO, J.A.: This is an appHcation under a Notice of Motion to strike out a notice of appeal which the first respondent filed in court intending to appea'I against a ruling in a revision in the High Court. The notice of motion is supported by the affidavit of one Hamim Lilumba, the Chairman of the applicants organization, . who alleges that the first respondent's notice of appeal as well as the letter applying for copies of proceedings_ were never copied to and served on the applicant. 2 Mr. Mwakajinga, the learned advocate for the applicants, has submitted that the· failure by the first respondent to serve those documents on the applicants pmounted to a failure to take an essential step within the meaning of Rule 82 of the Court Rules and, consequently, the notice of appeal should be struck out. Mr. Nyangarika 1 learned advocate for the first respondent, has resisted the application. He sai9 that a copy of the notice of appeal as well as a copy of the letter to the Registrar of the High Court applying for copies of proceedings for appeal purposes were in fact served on the former advocates for the applicant, Dominic Kashumbugu & Co. Advocates. He referred the Court to four counter-affidavits relating to such service, in particular the affidavit of one Juma K. Mtibo in which it is averred that the disputed documents were served on Mr. Kashumbugu. The relevant paragraphs in Mr. Mtibo's counter-affidavit read:- "4.. That all the papers. necessary for appeal were entered into our dispatch (sic) arid dully served to (sic) Mr. Dominic Kashumbugu ~ho signed in our dispatch book acknowledging service of the Notice of Appeal Chambers 3 Summons and a copy of a letter Ref. No. ADV/NYA/5/MOFIMU/HCCR NO. 581/2000 dated 1.10.2001 as indicated herein. A copy of the Dispatch book is attached and marked to (sic) as Annexture A. 5. That I personally served the said documents to Mr. Kashumbugu on 15th October 2001 and he signed the dispatch book in my presence." The annexture 'A' to Mr. Mtibo's counter-affidavit is a photo~opy of what alleged to be a page in a dispatch book. The entry shows that a letter with reference No. ADV/NYA/5/MOFIMU/HCCR NO. 581/2000, a Notice of Appeal and a Chamber Summons were received on 15/10/2001 by a person who signed the receipt. Mr. Nyangarika told the Court from the bar that the person who signed to have received the documents was one Mr. Kiozya, an advocate who was then· working with Mr. Kashumbugu in the same office. It was not true, therefore, according to Mr. Nyangarika, that the applicant was not served . with a copy of the Notice of Appeal as alleged by the applicants. 4 Mr. Mwakajinga conceded that he was not the original advocate for the applicant. The origiinal advocate was Mr. Dominic Kashumbugu. However, the applicants' file which was with Mr. Kashumbugu was passed on to him and neither the alleged copy of the Notice of Appeal nor the copy of a letter applying for copies of including the one by Mr. Juma K.. Mtibo, can be found in the brief. He further~ contended that the absence of affidavits from either Mr. Kashumbugu or Mr. Kiozya that they received those documents are strong indications. that the disputed ?ocuments were never served on the firm of Dominic Kashumbugu & Co. Advocates and that the signature on the photocopy of the dispatch book may have been. put there after the present application was filed. It is necessary to make a finding of fact whether a copy of the first respondents' Notice of Appeal was served on the former advocates of the applicant. According to the counter-affidavit of Mr. Mtibo the copy of the notice as well as other documents were served on, Mr. Kashumbugu but Mr. Nyangarika said that it was served on • I Mr. Kaozya, an advocate then working with Mr. Kashumbugu. Mr. 5 Nyangarika said the signature of Mr. Kaozya on the dispatch book resembles the signature of Mr. Kaozya on other documents so that, according to him, there was no doubt Mr. Kaozya received the Notice of Appeal on behalf of the applicants. Unfortunately, neither party requested either Mr. Kashumbugu or Mr. Kaozya to confirm or deny by way of affidavit that either of them received the documents. The Court cannot be expected to speculate on who among the two, if at all, received the documents. The applicants have denied that they were served with a copy of the Notice of Appeal. It is incumbent on the first respondent to satisfy this Court that the former advocates of the applicants were duly served. As already mentioned, Mr. Juma K. Mtibo said the notice of appeal and other documents were received from him by Mr. Dominic Kashumbugu whereas Mr. Nyangarika said it was Mr. Kaozya who received those documents. Such a conflicting position does not help to establish that the Notice of Appeal was received by the former advocates of the applicants: It remains unproved, therefore, that the disputed documents were duly served on the applicants or their advocates. 6 Even if it were accepted that the advocates for the applicants were duly served with the notice of appeal on 15th October, 2001, that would not help the first respondent. According to the letter dated 4/10/2001 from K.M. Nyangarika & Co . .Advocates to the Municipal Director, Morogoro Municipal Council, a copy of which is annexed to t~e affidavit of Mr. Hamim Lilumba, by the date of that letter the notice of appeal had already been filed. So, by 15th October, 2001, eleven days had already elapsed, which means the requirements of Rule 77 (1) that the respondent to the intended appeal was to be served within seven (7) days of the lodging of the notice of appeal, would not have been complied with. So, what remains now to be decided is what should be the consequences for the failure to serve the notice of appeal on the applicants or to serve them within time. Mr. Mwakajinga has cited several cases of this Court in which it was decided that such failure would result in the notice of appeal being struck out under R. 82 of the Court Rules. In Salum Sunderji and Capital Development Authority v. Sadrudin Shariff Jamal, [1993] TLR 224 Mnzavas, -J.A. held that failure to comply with Rule 77 (1) of 7 the Court Rules nullifies the Notice :of Appeal. The late learned Judge had said - There is a long , and unbroken chain of authorities by this Couf that non-compliance with the provisions of r,. 77 (1) and r. 83 (2) I - of the Court of Appeal Rules nullifies a Notice of Appeal or an appeal. I Similarly, in Stephen Wasira v. Joskph Warioba [1997] TLR 205 the I appellant had failed to prove that ,he had served a notice of appeal 1 I I j on the respondent in that appeal. j This Court held that the failure rende_red the appeal defective and it could not be saved. In Francis Itengeja v. Kampuni ya Kusindika Mbegu za Mafuta Ltd, [1997] TLR 148, Kisanga, J.A. held that failure to serve the I ' applicant in that case with a copy: of the notice of appeal within 7 days as required by Rule 77 (1) :of the Court Rules, 1979 was a ground for striking out the notice 01 appeal. It is well established, therefJe, that where Rule 77 (1) of the Court Rules is not complied with thle notice of appeal must be struck I out. I must, as I now do, strike out the Notice of Appeal which was . I I 8 ' .• •. . ,...._ filed in r~spect of the decision in . Cilil Revision No. .• s; I of 2000 of the \. ~-·· ~ . High Court at Dar es Salaam. The awplicants to get their costs. . j . ! I I '' I II DATED at DAR ES SALAAM this 26 th day of s ptember, 2003. 1 I ': I ' I I ~~ I 11. N /.,: J. A. MRlOSO l JUSTICE OH APPEAL ;j ' -~~~ . ,. i I certify that this is a true GOP¼ of the original. j I ~ I ' I ( .F.L.K. w4MBALI ) . I DEPUTY REGISTRAR I . I I .. t ... .- ... , ...