Iddi Semvua Msangi v. the liquidators of Tanzania crown cock company Ltd Civ no 100 of 2006 (plot dispute)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 100 0F 2006

IDDI SEMVUA MSANGI……………………………..……………….APPLICANT

VERSUS

THE LIQUIDATORS OF TANZANIA CROWN

COCK COMPANY LIMITED ………………………………….1^ST RESPONDENT

MR. VICENT BRUNO MINJA…………………………………2^ND RESPONDENT

(Application for Extension of Time to file a memorandum

 of Appeal and a record of appeal from the Judgment

of the High Court of Tanzania( Land Division )

 at Dar es Salaam)

(Kileo J.)

Dated the 29^th day of July, 2004

in

Land Case No. 132 OF 2004

R U L I N G

11^th October, & 16^th November,2006

MSOFFE, J. A.

        This is an application for enlargement of time made under Rules 83(1) and 8 of the Tanzania Court of Appeal Rules, 1979. By a notice of motion the applicant Iddi Semvua Msangi is moving the Court for two orders which read as follows:-

1.     That the period of time within which the appeal can be instituted by filling the memorandum of Appeal together with other necessary accompanying documents as required by Rule 83 (1) of the Tanzania Court of Appeal Rules 1979, be extended, on the grounds that the delay was occasioned by sufficient reasons as detailed in the Affidavit attached and accompanying this Notice of motion.

2.       And for an order that the costs of and incidental to this

Application abides the results of the said Application.

            In order to appreciate the spirit behind the application the following background information is helpful. In the High Court of Tanzania (Land Division) the applicant filed a suit in a claim for, inter alia, rescission of a sale of the premises on Plot No. 21 Ada Estate, Kinondoni, Dar es Salaam. He also prayed for specific performance of the contract of sale. Before the suit could be determined on merit the 1^st respondent raised and argued a preliminary point of objection to the effect that the suit was res judicata in view of the fact that the subject matter and the reliefs claimed were the subject of Civil Case No. 54/2002 of the District Court of Kinondoni involving the same parties, and was conclusively determined thereat. In a Ruling dated 29/ 7/ 2004 the High Court (Kileo, J. (as she then was)) upheld the objection and struck out the suit. On 2/ 8/ 2004 the applicant filed a notice of appeal to this Court against the decision. At the same time, on the same date i.e. 2/ 8/ 2004, the applicant wrote a letter to the Registrar, High Court (Land Division) requesting to be supplied with the necessary copies of proceedings for appeal purposes. Of particular interest to this application is item 3 of the letter where he applied for:-

“Copy of the complete proceedings in RM’S Court at Kinondoni Civil case No. 54 of 2002 together with all Exhibits, Annextures, correspondences and submissions by Advocates, Rulings, Orders and Decrees etc.”

In a letter dated 14/12/2004 the Registrar wrote to the applicant to say that “the requisite copies of Judgment, decree/Drawn order, and proceedings” were ready for collection on payment of fees of Tshs. 5,500/=.  On the following day i.e. on 15/12/2004, the Registrar issued a certificate to certify that the days from 29/7/2004 to 15/12/2004 were to be excluded in terms of the proviso to Rule 83 (1) of the Court Rules, 1979.  So, under the sub-rule the intended appeal was required to be filed within 60 days thereafter i.e. on or before 15/2/2005 to be exact.  After receiving the above documents the applicant realized that the documents referred to under item 3 of the letter dated 2/8/2004 were not supplied to him.  So, on 19/12/2004 he wrote a letter to the Registrar asking for the documents in question.  The letter was followed by other letters reminding the Registrar to supply him with the aforesaid documents.  The letters were not responded to by the Registrar.  On 11/1/2006 he wrote a fourth reminder but, as in previous occasions, the letter was not answered to either, and the applicant was not supplied with the documents.  On 2/8/2006 the applicant lodged this application – seven or so months after he wrote the fourth reminder to the Registrar.

In the meantime, it is also on record that the applicant realized that the intended appeal needed leave in terms of S. 5(1) (c) of the Appellate Jurisdiction Act, 1979.  He accordingly filed an application to the High Court seeking leave.  On 25/2/2004 the High Court (Kileo, J. (again, as she then was)) dismissed the application.  In terms of Rules 43(b) and 46(3) the applicant  made an application to this Court seeking leave.  On 3/4/2006 this Court (Kaji, J,A.) marked the application withdrawn following an oral application to that effect made by Mr. Nyangarika, learned advocate, who was at the material time representing the applicant.  Needless to say, in the light of the withdrawal it will follow that todate no leave was sought and granted to appeal against the decision of the High Court dated 29/7/2004.

        The application is supported by an affidavit deponed to by the applicant.  In the affidavit one major point is raised.  That inspite of the several letters to the Registrar the applicant is yet to be supplied with copies of the documents mentioned under item 3 of the above mentioned letter.  At the hearing of the application Mr. Makange, learned advocate for the applicant, submitted that in terms of Rule 89(1) (k) the said documents are vital for purposes of the intended appeal.  Without the documents the intended appeal could not be filed within time hence this application, he emphasized.

        On his part Mr. Eustace Rwebangira, learned advocate for the respondents, adopted the contents of the affidavits in reply filed by Messrs. Thomas Eustace Rwebangira and Vicent Bruno Minja on behalf of the 1^st and 2^nd respondents, respectively.  He then asserted that so far the applicant has not sought and obtained the necessary leave to appeal.  So, in his view this application is an exercise in futility.  Thereafter, he went on to urge that it was not proved whether the above letters were actually served on the Registrar.  Having said so, he contended further that if the applicant had been diligent he could have still filed the intended appeal within time on the basis of the documents already supplied to him.  It was not necessary for him to wait for the other documents before filing the intended appeal, he emphasized.  At any rate, he went on to say, the other documents requested by the applicant are not the sort of documents envisaged by Rule 89(1) (k).  The documents referred to under (k) presuppose those which were before the High Court.  In this case, the other documents mentioned under item 3 of the letter were not before the High Court, Mr. Eustace Rwebangira contended.  In any case, he went on to submit, if the applicant thought that the documents were necessary for purposes of the intended appeal  then copies of the said documents were in his possession because they were annexures to the pleadings before the High Court. 

In substance, therefore, Mr. Eustace Rwebangira was of the general view that no sufficient reason had been advanced by the applicant to warrant the exercise of this Court‘s discretionary power under Rule 8 in his favour. 

        I wish to say from the outset that I do not propose to deal with the following two points.  One, the effect on the application of the fact that so far no leave to appeal has been sought and granted.  Two, whether or not the documents sought by the applicant are essential under Rule 89(1) (k) for purposes of the intended appeal.  In my view, these two points are not relevant in this application.  These are points which could best be taken up in another forum, possibly in the intended appeal if one is to be filed eventually. 

        I have given careful consideration to the arguments advanced by both sides.  Under Rule 8 the Court has power to grant the extension of time sought if sufficient cause is shown.  The power is at the discretion of the Court.  The crucial issue in this application is whether the applicant has shown sufficient cause to warrant the grant of the extension sought.

        My understanding of Rule 8 is that it is a rule of procedure.  Rules of procedure have to be adhered to strictly unless there are good reasons for relaxing them.  For example, in Wankira Benteel Versus Kaiku Foya,  Civil Reference  No. 4/2000 (unreported) this Court  quoted with approval a passage relevant to the above point from the case of Edwards Versus Edwards (1968) I W. L. R. 149, where at page 151 it was stated:-

        “So far as procedural delays are concerned, Parliament has left discretion in the Courts to dispense with the time requirements in certain respects. That does not mean however, that the rules are to be regarded as, so to speak, antique timepieces of an ornamental value but of no chronometric, so that lip service only need to be paid to them.  On the contrary, in my view, the stipulations which Parliament has laid down or sanctioned as to time are to be observed unless justice clearly indicates that they should be relaxed.”

        In my considered opinion, in the instant application the applicant is himself to blame for the failure to institute the intended appeal within the period of sixty days stipulated under Rule 83(1).  As already observed, in the Registrar’s certificate the days from 29/7/2004 to 15/12/2004 when “copies of proceedings/Ruling and Drawn order” were delivered to him were excluded for purposes of computation of time.  So, ideally the appeal was supposed to be filed on or before 15/2/2005, as already stated above.  Apparently, the applicant did not take advantage of the certificate.  Instead, according to him, he thought he could not file the appeal without the documents mentioned under item 3 of his letter dated 2/8/2004. With respect, the applicant ought to have known that there is no provision in the Court Rules for the Registrar to issue more than one certificate.  The Rules provide for one certificate only. Therefore, with that knowledge in mind, since he already had the certificate he could have instituted the intended appeal within time on the basis of the documents already supplied to him by the Registrar.  After doing so, if he still thought that there were other documents which were necessary for a fair determination of the appeal then he could continue pursuing them and eventually file a supplementary record of appeal in terms of Rule 92(3).  After all, under sub- rule (3) thereto a supplementary record of appeal may be lodged “at any time” which, in my view, presupposes that such record could be filed at any time before an appeal is called on for hearing.

        In the event, for the above reason, I am satisfied that no sufficient reason has been shown to warrant the exercise of this Court’s discretionary power under Rule 8 in favour of the applicant.  I dismiss the application with costs.

DATED at DAR ES SALAAM this  16^th the day of November, 2006.

J. H. MSOFFE

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S. M. RUMANYIKA

 DEPUTY REGISTRAR

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