20060716 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA· (DC) CIVIL APPEAL NO. 1 OF 2000 (Original Civil Case No. 95 of 1995 of the District Court of Dodoma District at Dodoma) Before: W. P. Dyansobera - R.M. W. A. MWATONOKA .................................. APPELLANT VERSUS THE LIQUIDATOR OF DODOMA REGION TRADING ............. RESPONDENT COMPANY LTD. RULING KAIJAGE, J. In this matter, the appellant, W. A. MWATONOKA, has appealed against the decision in Dodoma District Court Civil Case No. 95 of 1995. This ruling is subsequent to the Notice of the following preliminary points of objection taken on behalf of the respondent, THE LIQUIDATOR OF DODOMA REGION TRADING COMPANY LTD: 1) That, the appeal is improperly before the court since the respondent has been served with the amended memorandum of appeal which was not presented for filing before the court. 1 • ~-. '1 .. --~ •·•+--.,~- . ,;...;;,_,-:..~·•P·: ,.-;,;.· -~, 2) That, the appeal is bad in law as it offends Order XXXIX Rule 1 (1). of the Civil Procedure Code, 1966. 3) That, the appeal is time barred and untenable in law.. Learned counsel representing the parties were granted leave to argue the said points of objection by way of written submissions. 'i Starting with· the 3 rd point of objection, I think it has been raised without sufficient grounds of complaint. Having carefully examined the papers filed by the appellant, I have found nothing to support the view that the appeal is time barred. Counsel for the appellant has rightly submitted that the period within which a party awaits to be supplied with . certified copies of judgement and decree for purposes of appeal is normally excluded in computing the_ time limit within which a party is required to ·lodge the intended appeal. Computing from 16th November, 1999 when the certified documents for lodging an appeal were supplied to the appellant, until 4 th January, 2000 when the appeal was lodged, it cannot ~e said that the present appeal is time barred. It follows, :therefore, that the 3 rd point of objection cannot be sustained. ·It is hereby overruled. 2 To the extent that the Amended memorandum of Appeal was served to the respondent without the necessary endorsement by a proper officer of the court as stipulated under Order XXXIX Rule 9 of the Civil Procedure Co_de (Cap. 33 R.E. 2002), respondent's 1st point of objection is not without substance. The relevant portion of that Order provides: "Ord. XXXIX R. 9. Where a memorandum , of appeal is admitted, the court or the proper officer of the court shall endorse thereon the date of presentation and shall register the appeal in a book·: ... " [Emphasis supplied] It is evident in record that the respondent was served with the Amended Memorandum of Appeal without the court or the proper officer of the court complying with the mandatory requirement under Order XXXIX R.9. The crucial question to be considered and determined is whether the appellant should be punished for the wrong committed by the proper officer of the court who was, in law, required to make the necessary endorsement on the amended memorandum. I propose to answer this question in the negative. It was certainly not the duty of the appellant to fulfil the mandatory requirement of the stipulation of law quoted herein above. It was for the court to fulfil such requirement, the appellant having paid the 3 Lt necessary fees. Although the respondent was served, it was certainly a service effected with an improper document. Admittedly, the omission was not occasioned by the appellant. It was occasioned by the court. In the circumstances, I think, the remedy should be to strike out the defective Amended Memorandum, as I hereby do, and grant leave to the appellant to file a fresh Memorandum (without paying fees) and ·after the court has complied with the requirement under Order XXXIX R. 9 9_f the Civil Procedure Code, the respondent be served afresh with the amended memorandum. I have not considered respondent's complaint that the appellant did not present the Amended Memorandum of Appeal for filing. This complaint has to be backed by cogent evidence before it can be acted upon. The statement contained in the respondent's submission on the preliminary point of objection cannot be taken as evidence sufficiently proving that alleged fact. It is for this reason that I have declined to resolve that allegation for want of cogent evidence. As regards the 2 nd point of objection, the respondent has not laid sufficient material, in the submissions filed on his behalf, that it was through the fault of the appellant that the Memorandum of Appeal served on him was not accompanied by a copy of a decree and judgement. What is 4 .· ,, ~ ·---··-----... --:-' - L ,, ~------ ... •-- -~.--'T\ clear in the relevant record is that . the appellant filed the memorandum of appeal and paid necessary fees. There is, in the court record, appellant's Memorandum of Appeal and necessary copies of the judgement and decree. In the absence of evidence it is hard to conclude, basing on the respondent's counsel written submissions, that in fact the appellant did not supply sufficient copies of · necessary documents for purposes of service to the respondent. I think the remedy should be to direct, as I hereby do, the registry of this .court to supply necessary copies of documents which the respondent claim not to have received. The respondent's preliminary point of objection are sustained only to the extent indicated above. Matter to proceed on merits after compliance of the directions made surrounding r---------··----- S.S.KAIJAGE JUDGE 16/7//2006 5