IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
CIVIL
APPLICATION NO. 98 OF 2008
HARUNA MPANGAOS & OTHERS………………………APPLICANT
VERSUS
TANZANIA PORTLAND CEMENT CO. LTD…………RESPONDENT
(Application
for extension of time from the
ruling of the High Court of Tanzania
at
Dar es Salaam
(Shaidi,
J.)
dated
the 16th day of June, 2008
in
Civil Case No. 173 of 2003
--------
RULING
3 September & 7 October,
2008:
KIMARO, J.A.:
This motion is filed under section 5(1)
(C) and 11(1) of the Appellate Jurisdiction Act, 1979 Cap. 141 R.E. and Rules
8, 9, 44 and 45 (1) of the Court of Appeal Rules, 1979. It seeks for three orders; one, extension of time for the
applicants to give notice of appeal and for serving the respondent, two,
extension of time to enable the applicants apply for record of the proceedings,
judgment, decree and all the necessary documents for preparing the record of
appeal and serving the respondents, lastly, stay of execution of the decree pending
filing of the notice of appeal on extension of time.
To understand the gist of the
application, brief background information is important. The applicants were aggrieved by the judgment
of the High Court in Civil Case No.173 of 2003. They lodged Civil Appeal No.10
of 2007in the Court but the record of appeal had an improperly dated decree. Upon discovery of the mistake, the applicants
filed a supplementary record of appeal under rule 92(3) of the Court Rules with
a properly dated decree. When the appeal
was called on for the hearing, the Court upheld a preliminary objection raised
earlier on by the respondent, that the appeal was incompetent as it had an
invalid decree. The Court sustained the
preliminary objection with a remark that a valid decree was, under Rule 89 (1)
(h) a vital document. Since it was not
filed with the record of appeal when the appeal was first lodged, the Court
said, the omission was not cured by the filing of the supplementary record
because under sub-rule (3) it was not “such other documents” as may be
necessary for the determination of the appeal as provided for under item (k) of
sub- rule (1) of Rule 89. As for the
definition of a supplementary record, the Court said it presupposes the
existence of a complete record of appeal lodged by the appellant which is then supplemented
by another record of appeal for making good any deficiencies in the initially
filed record of appeal. The
supplementary record however, does not affect the competence of the appeal.
An attempt by the applicant to start
the process of filing the appeal afresh, by filing the same application as this
one in the High Court was not successful because it was dismissed. It was then the applicant opted to come to
the Court for a second bite.
Mr. Marando, learned counsel appeared
for the applicants. For the
respondents, it was Mr. Thadayo, learned counsel, who held brief for Mr. Rostan
Mbwambo, learned counsel. The respondent had raised a preliminary objection
earlier on, and during the hearing of the application both counsel proposed to
have the preliminary objection and the main application be heard simultaneously
in order to save time and costs, of which the court accepted.
The preliminary objection consisted of three
limbs; one, the application is not properly before the Court. Two, the applicants have not filed a notice
of appeal against the decision of the High Court as provided for under Rule 76
(1) of the Court of Appeal Rules and thirdly, the applicants have not taken
necessary steps as required under section 5(1)(C ) of the Appellate
Jurisdiction Act, Cap. 141.
Mr. Thadayo opted to consolidate the
three points of objection and argued them together. He submitted that since the same application
was filed in the High Court and was refused, the applicant could not come to
the Court for the same application because the Court Rules do not provide for such
procedure. What the applicant should
have done, the learned counsel contended, was to seek leave of the High Court and
lodge an appeal against its decision. He said it was wrong for the application to be
the filed in the Court as it does not have concurrent jurisdiction with the
High Court on this matter. The learned
counsel supported his argument by a
decision of a single judge of this Court
in the case of IBRAHIM ALLY YUSUF MPORE VS NICAS ELIKINA CAT Civil Application No. 84 of 2005 (Unreported) where the
Court found itself in a similar situation and it refused to grant the order for
extension of time. Unlike in an application for leave to appeal, the learned
counsel contended, in an application for extension of time, a party is disadvantaged under the law in the sense that he/she can not file the same
application in this Court after the High Court has refused the application.
On the prayer for stay of execution,
the learned counsel submitted that the Court has persistently held in its
decisions that it cannot grant an order for stay of execution if the decree
sought to be stayed is not attached to the application. He said neither the decree nor the judgment
which is sought to be challenged on appeal is attached to the application. Moreover, Mr. Thadayo submitted, no notice of
appeal has been filed and therefore the preliminary objection should be
sustained and the application be dismissed.
On his part, the learned counsel for
the respondent said the application in the High Court was brought under section
11 of the Appellate Jurisdiction Act, 1979, the provisions which empowers it to
extend time. It is coming to the Court
by way of a second instance as required by the law, after the High Court
refused to grant the same. He insisted
that it was the proper procedure to follow after the Court struck out the
appeal because all the preparatory stages that preceded the filing of the appeal
went down, and the whole process of filing the appeal again has to start
afresh. It was for this reason, the learned counsel said, that the applicants
came to the Court to ask it to overrule the decision of the High Court. The opinion of the learned counsel is that
since the ruling of the High Court which is being challenged is attached to the
application, that suffices for the determination of the application and there
is no need for attaching the judgment as that will be challenged in the
appeal. On the decision of Mpore, supra, Mr. Marando said it is inapplicable because an
improper procedure was invoked in the filing of that application. Instead of the applicant starting the process
in the High Court as a court of first instance, it was filed in the Court of
Appeal and that is why the prayer was properly refused. He prayed that the preliminary objection be
dismissed and the application be heard on merit.
In brief reply, the learned counsel for
the respondent said section 11of the Appellate Jurisdiction Act, 1979 is
applicable only in the High Court but
not in the Court of Appeal. Since prayer
C in the application relates to stay of execution, Mr. Thadayo contended, the
only order capable of being executed is
the one given in the judgment of the High Court and not the ruling which
is annexed to it. He reiterated the
prayer for sustaining the preliminary objection and dismissing the application.
As
for the preliminary objection let
me start by stating that the learned counsel for the respondent
submitted correctly, that section 11 of the Appellate Jurisdiction Act, 1979 is
only concerned with applications for extension of time filed in the High Court
and is not applicable to applications filed in the Court. Applications for extension of time filed in
the Court are governed by Rule 8 of the Court Rules. Rules 44 and 45 of the Court Rules provide
for the procedure to follow, for those applications which can be entertained by
both the High Court and the Court. In terms
of Rule 44, any such application has to start in the High Court. In this respect, sections 5(1) C and 11(1) of
the Appellate Jurisdiction Act were wrongly cited as they have nothing to do
with the application brought before the Court.
The issue in this preliminary objection
is whether the application is properly before the Court. I have considered the
submissions by both counsel and I must, with respect to the learned counsel for
the respondent, answer the issue positively.
There is no need for me to dwell much on the issue because the position
of the law is clear. Rule 8 of the Court Rules states:
The Court may for sufficient
reason extend
the time limited by these
Rules or by any
decision of the Court or of
the High Court
for the doing of any
act authorized or required
by
these Rules whether before or after the expiration
of
that time and whether before or after the doing
of
the act, and any reference in these Rules to any
such time shall be construed as reference to
that time
as so extended.
Under
section 11(1) of the Appellate Jurisdiction Act, 1979 the High Court is
empowered to extend time to give notice of intention to appeal, leave to appeal
as well as to issue a certificate that the case is fit for appeal to the Court.
The application which was filed by the
applicant in the High Court was seeking for extension of time to give notice of appeal. In the case
of William
Shija Vs Fortunatus Masha [1997] TLR 213 The Court said that:
…In terms of the provisions
of section 11(1) of the
Appellate Jurisdiction Act,
1979 and Rule 8 of the
Court Rules, this Court and
the High Court have
concurrent jurisdiction to
grant extension of time
to give notice of
appeal. However, under rule 44,
the application for extension
of time shall in the first
instance be made in the High
Court…
In view of what I have shown above, the
preliminary objection raised by the respondent is misconceived. The case of Mpore supra cited by the learned counsel for the respondent is not
applicable under the circumstances. After the application for extension of time filed
in the High Court failed, the applicants are entitled by the law, not to appeal,
but to come to the Court for a second bite as they appropriately did in this
case. In Tanzania
Coming to the main application, the
affidavit of Richard Mairi deposed in support of the application shows that the
notice of intention to appeal, the first essential step in lodging an appeal
went down with the striking out of the appeal.
Elaborating on the application, Mr. Marando, learned counsel for the
applicants said that since his clients are still interested to pursue the
appeal, they must have an extension of time to give notice of the intention to
appeal. In his opinion, sufficient
reasons were put before the High Court in the application which was filed
before it but were rejected. He is highly
convinced that since the Court did, for a long period close its eyes to the
mistake of having defective decrees rectified by filing of supplementary
records, it would not be fair for the applicants to be denied their right of
appeal. This was particularly so, argued Mr. Marando, because the Court itself
has a share of the blame in the appeal which was struck down. It issued the improperly dated decree. He said the Court made the admission of
giving the parties improper advice on the procedure of correcting the defects
in the decrees in its judgment.
Commenting on the case of Kiboro
Vs Posts and Telecommunication Corporation (1974) EA 155, which was
extensively discussed by the Court in relation to supplementary records, Mr.
Marando said, although the case was reported way back in 1974, the Court went on
accepting rectified decrees brought into the record of appeal by supplementary
records of appeal until when the Court gave its decision in Civil Appeal No. 10
of 2007 on 10th March 2008. Under the circumstances, the learned
counsel argued, the Court should seriously take this to be an important area
for development of the law in our country.
Throughout his submission, he insisted that he acted in accordance with
the advice given by the Court and that sufficient reasons were put before the
High Court but the application was refused.
He prayed that the application be granted.
Mr. Thadayo, learned counsel for the
respondent adopted the counter affidavit of Aloys Bahebe, sworn to oppose the
application. Essentially what the
deponent contends is that the applicants were not careful in the whole process
of lodging the appeal, as they should have discovered the defects in the decree
at the time of collection of the decree. This was more so, because the
applicants were represented by a highly experienced advocate, the learned
counsel contended. While acknowledging that the decision of the
Court which struck out the appeal is generous in the sense that the applicants
were allowed to re-file the appeal without further payment of fees, the learned
counsel argued that this did not mean that the right was automatic. It is subject to compliance with other
relevant Rules in such applications. He challenged Mr. Marando for not showing the
shortfalls in the decision of the High Court and instead, he submitted on the
merit of the appeal itself. His conclusion was that the High Court refused the
application because what was involved in the appeal is ownership of the
property and there is no way in which the Court can determine the issue because
the applicants have no title to the property and the authorities who granted
the title to the respondent are not a party to the proceedings. He prayed for the dismissal of the
application.
In brief reply, Mr. Marando reiterated
that the decision of the High Court was wrong and that the applicants have very
good grounds for the application to be granted.
Regarding the title of the disputed property, the learned counsel said
it was the respondent who filed the suit which was challenged in appeal, and
what they had prayed for was a declaratory order in respect of the ownership of
the suit property. In this respect, the
learned counsel argued, there will not be any problem in determining the
appeal.
It is common ground that once an appeal
is struck out, the parties revert to the position they were before the appeal
was lodged. In the event the parties
are still interested to pursue the appeal, the whole process of filing the
appeal has to start afresh, the initial stage being giving a notice of the
intention to appeal. Under Rule 76(2) of the Court Rules the notice of appeal
has to be lodged within fourteen days.
It is also common ground that since the parties are starting afresh the
process of lodging the appeal, the time for giving the notice of appeal was
long gone. This explains why they are
here with this application which seeks for extension of time as a second bite
after the High Court refused to grant the same.
In an application for extension of time
under Rule 8 of the Court Rules, the Court normally looks at the reasons given
by the applicant in accounting for the delay in order to satisfy itself on the
sufficiency of the reasons. In this
application the reason for the delay is obvious. The applicant had pursued an appeal which was
struck out because of the defectiveness of the decree. Much as they did take remedial measures, they
used a procedure which initially was accepted by the Court to be a proper one,
but it was later declared to be wrong.
Since this is the position that
emerges from the proceedings, in the
light of the argument raised by Mr. Marando, learned counsel for the applicants
that the High Court did contribute to the striking out of the appeal because it
issued an improperly dated decree, my considered opinion is that the issue for
the determination of the Court is whether the Court should consider the circumstances
of what took place in this case as amounting to sufficient reasons to account
for the delay in filing the application.
The High Court in considering the role
played by the Court in issuing the improperly dated decree said:
“It is common ground that the
applicant approached
the Court of Appeal with a defective decree. He is throwing part of the blame to the court. The position
adopted by the applicant is clearly wrong. The blame
for a defective decree lies squarely on the
applicant himself. He was supposed to
check his documents
properly before filing them, indeed he certified the
documents as correct. Was the Court
involved? I therefore firmly reject the
contention that the court
was privy or otherwise to blame for the applicants
failures. He is
responsible for his troubles through and through.”
The circumstances of this case are
unique in the sense that the applicants did take steps to rectify the defective
decree. The problem was the procedure they
used in rectifying the mistake. They
did that by filing a supplementary record of appeal. This procedure was accepted by the Court at
the time they did so, until when the Court gave its decision in Civil Appeal No.
10 of 2007. In underscoring this
position, the Court did say in its decision that:
“In the justice of this
matter however, we think
we should not end up
there. We realize that
for
quite some time
the appellants have always
resorted to Rule 92(3) as a remedy in filing
supplementary records of appeal containing
valid decrees. Part of the reason for doing so
was a result of this
Court’s decisions in a number
of cases advising the appellants to do
so. For
instance, in NBC HOLDING CORPORATION Vs MAZIGE MAUYA & ANOTHER, Civil Appeal No. 36 of 2004 (CA)(
unreported) in a situation where the copy of the decree in the record was
invalid for being signed by the District Registrar the Court had this to say;-
“With regard to pending appeals not
yet scheduled for hearing, parties would
be well advised to resort to Rule 92(3) of
the Court of Appeal Rules. 1979, to rectify
the defects and regularize
the same in conformity
with the law.” Emphasis added
The
applicants were not at fault when they used the procedure of rectifying the
defective decree by a supplementary record.
This procedure was accepted by the Court then. In such a situation it would be grave
injustice to deny the applicants their right of appeal .Unlike the Court which
did not discover the defects in the decree at the time of either signing or
issuing it, the applicants did discover the defects. Only that they discovered it after filing the
appeal. But even then, they took action
to rectify the mistake. As already
stated the problem was on the procedure which was used. It was an accepted one until when the Court
said it was not the right procedure. That came after the ruling of the Court but
before the ruling the position was accepted as a correct one. This being the
position, and with respect to the learned Judge of the High Court, I do not see
how the Court can exonerate itself from the blame and throw it entirely on the
applicants. The Court in VIP ENGINEERING AND MARKETING & OTHERS
VS CITIBANK TANZANIA
The role of the Court under article
107A(1) (e) of the Constitution of the United Republic of Tanzania, 1977 as
amended, is to disregard technicalities
and met out substantive justice. This is
one of those cases where technicalities should be disregarded. Indeed the Court admitted that for quite
sometimes, it issued decisions which wrongly advised the parties. The applicants were a victim of the wrong
advice given by the Court.
On
the views expressed by Mr. Thadayo that
the appeal has no chances of success
what I would say is that it is the Court
which has to determine whether the appeal
has merit or not. See the case
of VIP supra. This question cannot
be determined in this application. This
is particularly so because of the circumstances of the case.
Regarding the order for stay of
execution, it has to be considered in relation to the circumstances of this
case. In view of what I have said be-fell
this case, the execution must be stayed to enable the applicants to exercise
their right of appeal.
From what has been demonstrated above,
I grant all the orders prayed for with costs. The applicants are given a period of two
months from the date of reading of the ruling within which to re- file the
appeal without payment of fees. It is
ordered accordingly.
DATED at DAR ES SALAAM, this 29th
day of September, 2008.
N.P.KIMARO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(P. B. KHADAY)
Ag.
DEPUTY REGISTRAR
COURT
OF APPEAL
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