FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER 1997 TLR 41 (CA) F

 FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER 1997 TLR 41 (CA) F

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Mnzavas JJA and Lubuva JJA G

CIVIL APPEAL 43 OF 1996

10 January 1997

(Appeal from the ruling of the High Court of Tanzania, Mwanza, Chipeta J.) H

Flynote

Civil Practice and Procedure - Appeals - Notice of appeal - Requirements of - Effect of

Rule 76(3) - Failure to state whether intended appeal against whole or part only of

decision not fatal.

Civil Practice and Procedure - Appeals - Record of appeal - Record I

1997 TLR p42

A not containing drawn or extracted order of appeal - Rule 89(1)(h) of Court of

Appeal Rules - Such failure renders the appeal incompetent.

-Headnote

In the appeal, counsel for the respondent took two preliminary points, viz (1) that B

the notice of appeal was fatally defective as it failed to state whether the intended

appeal was against the whole or part only of the decision; and (2) that the appeal was

incompetent because the record did not contain the drawn or extracted order of

appeal.

Held:

C (i) The failure to state whether an intended appeal was against the whole

or part only of the decision was not fatal;

(ii) That Rule 89(1)(h) and (2) of the Court of Appeal rules rendered

incompetent an appeal where there had been a failure to extract the decree or order.

Case Information

D Appeal declared incompetent and dismissed.

Cases referred to:

1. The Commissioner of Transport v Attorney General of Uganda and

Anor [1959] EA 329

2. Juma Mtale v K G Karmali Civil Appeal No 11 of 1993 (unreported)

E 3. The National Bank of Commerce v Methusela Magongo Civil Appeal

No 30 of 1994 (unreported)

4. Arusha International Conference Centre v Damas Augustine Ndemasi

Kavishe Civil Appeal No 34 of 1988 (unreported)

F 5. Leonsi Silawyo Ngalai v Justine A. Salakana and Anor Civil Appeal 38

of 1996 (unreported)

Makani and Mutaitina for the appellant.

Malaba and Mwale for the second respondent.

[zJDz]Judgment

Kisanga JA: G

There is before us an appeal against the ruling of the High Court (Chipeta, J) on a

matter pertaining to an election petition. When the appeal was called on for hearing

Mr Mwale, learned counsel for the first respondent, took a preliminary objection in

terms of Rule 100 of the Court of Appeal Rules. H

The objection was based on three grounds. The first ground in effect alleges that the

notice of appeal does not comply with the requirements of Rule 76(3) of the Court of

Appeal Rules and the format made under that Rule as set out in Form D of the First

Schedule to the Court of Appeal Rules. The relevant portion of Rule 76(3) provides

that: I

1997 TLR p43

KISANGA JA

`(3) Every notice of appeal shall state whether it is intended to appeal

against the whole or A part only of the decision ...'

The appellant's notice of appeal had simply stated that the intended appeal was

against the particular ruling of the High Court. Mr Mwale vigorously contended that

failure to state whether the appeal was against the whole or part only of that ruling

B was necessarily fatal; and in this connection he drew our attention to the use, in

the provision, of the word `shall' which, according to him, made the requirement

mandatory.

The appellant is represented by Mr B Makani and Mr Mutaitina, learned advocates.

C In response to Mr Mwale's contention, Mr Makani in effect conceded that there

was no strict compliance with the provisions of Rule 76(3) but submitted that such

non-compliance was not fatal.

We entirely agree with Mr Makani's submission. We think that the use of the word

D `shall' does not in every case make the provision mandatory. Whether the use of

that word has such effect will depend on the circumstances of each case. For our part

we think that the word `shall' in Rule 76(3) does not have the effect of making that

provision mandatory, nor do we think that Parliament can have intended so. E

Failure by a party to state whether the intended appeal is against the whole or part

only of the decision does not in any way prejudice the opposite side. Mr Mwale

argued that he might have been prejudiced or ill-effected by having to examine the

whole ruling while the appeal was in fact against part only of the ruling, in which F

case he wasted or might have wasted his valuable time and energy doing unnecessary

work. With due respect to counsel, however, we find not much force in this

argument. Our understanding is that Mr Mwale started preparing for the appeal

seriously only after receiving the record of appeal including the G memorandum of

appeal. Upon studying the grounds of appeal he was then able to know the extent of

the appeal, in which case if he found that the appeal was against part only of the

ruling he would limit himself accordingly and there was no need to prepare himself

in respect of the whole ruling. For these reasons we think H that the failure to

comply strictly with the provisions of Rule 76(3) was not fatal, and if this was the

only ground of objection to the appeal we would not sustain the objection, although

of course we stress the importance of complying with the Rules. That ground,

therefore fails.

Objection was also taken that the record of appeal did not con- I

1997 TLR p44

KISANGA JA

A tain the certificate of the Registrar as to the exact time that was necessary for the

preparation and delivery of the record to the appellant. Again there is little substance

in this ground and, indeed, Mr Mwale argued it only half-heartedly. For, the record at

p 82 contains a certificate duly issued by the District Registrar and showing, inter alia,

that on 2 May 1996 he received from the appellant's counsel a B request for the

supply to him of the record of proceedings which was duly supplied on 6 September

1996, and that the period up to this latter date should be excluded in computing the

time within which to lodge the appeal. We could find nothing wrong with that. The

purpose of the Registrar's certificate is to ensure that C an appellant lodges the

record of appeal within sixty days of filing his notice of appeal or within sixty days of

the supply to him of the record of proceedings. The record of appeal was lodged in

court on 4 November 1996. This was within sixty days from 6 September 1996 which,

according to the District Registrar, was the D date the period of limitation started to

run against the appellant. Therefore, this ground of objection also fails.

The third and last ground of objection was that the appeal is incompetent because the

record of appeal does not contain the drawn or extracted order in appeal, and E in

support of this ground Mr Mwale cited numerous authorities of this Court and of its

predecessor, the Court of Appeal for East Africa.

In response to this submission Mr Makani concede the non-compliance with Rule F

89(1)(h) of the Court of Appeal Rules which requires the record of appeal to include

the extracted order but strenuously contended that this did not render the appeal

incompetent. In his view such non-compliance was merely a procedural or

administrative irregularity which renders the appeal incomplete and which could be

rectified by making an appropriate order for the filing of a supplementary record. G

The law as it now stands is that failure to extract the decree or order in terms of Rule

89(1)(h) and (2)(v) of the Court of Appeal Rules renders the appeal incompetent, see

for instance The Commissioner of Transport v The Attorney-General of Uganda and

Another (1) and Juma Mtale v K G Karmali (2). H The finding that an appeal is

incompetent has constantly resulted in striking out such appeal, see for instance The

National Bank of Commerce v Methusela Magongo (3). There is no room for Mr

Makani's view that non-extraction of the decree or order is a mere procedural or

administrative irregularity. In Arusha International Conference Centre v Damas

Augustine I

1997 TLR p45

KISANGA JA

Ndemasi Kavishe (4) it was held that such non-compliance was fundamental and A

went to the root of the matter. Likewise Mr Makani's effort to urge us to grant an

order to lodge a supplementary record of appeal or to invoke Rule 3 and direct a

departure from the rules cannot bear any fruit. This court adequately considered such

submissions in the Arusha International Conference Centre case cited above and

found them untenable. B

Mr Makani cited the recent decision of this Court in the case of Leonsi Silawyo Ngalai

v Justine A Salakana and Another (5). There the Court had occasion to say this: C

`We need however to point out for future guidance, that insufficiency or

incompleteness of the record of appeal is not a ground for incompetency of an appeal,

because such a defect is rectifiable by an appellant at any stage of the proceedings as

provided under sub-rule 3 of Rule 92 of the Tanzania Court of Appeal Rules, 1979 ...'

D

Counsel took the view that consistent with this decision non-extraction of the decree

or order only constituted an insufficiency or incompleteness which did not make the

appeal incompetent.

With great respect, however, we do not agree. First, it is not apparent from the E

judgment cited what kind of insufficiency or incompleteness the court was

considering or was having in mind because the allegation of insufficiency or

incompleteness had been withdrawn by the party raising it before the Court heard

arguments on it. However, we are of the view that where by reason of non-extraction

of the decree or order, as in this case, the appeal is rendered F incompetent, the

issue of insufficiency or incompleteness does not really arise. The position that arises

is simply one of non-existence of the appeal. Because insufficiency or incompleteness

connotes something which is in existence and which can be improved upon, say by

adding to it. An incompetent appeal is one G which in law did not come into

existence although efforts were made to try to bring it into existence. In such

circumstances, therefore, one cannot properly talk of there being an insufficient or

incomplete appeal which one can improve upon by filing a supplementary record,

because in law no appeal came into existence in the first instance; there was only a

purported appeal, if you wish. H

Mr Makani also relied on Rule 27(1) of the Elections (Election Petitions) Rules 1971

in his valiant attempt to urge us to overrule the objection. That sub-rule says that: I

1997 TLR p46

KISANGA JA

A `27-(1) Save as is expressly provided to the contrary in these Rules, no petition

shall be dismissed for the reason only of non-compliance with any of the provisions of

those rules, or for the reason only of any other procedural irregularity unless the

court is of the opinion that such non-compliance or irregularity has resulted or is

likely to result into miscarriage of justice.' B

We have to state at once that the reference to this provision was obviously

misconceived. The Elections Rules govern the conduct of election cases when they

are before the High Court. The clear demonstration of this is the fact the word `court'

which is used in the sub-rule is defined in Rule 2 to mean the High Court. C The

preliminary objection before us is based not on any provision of the Elections Rules

but on the provisions of the Court of Appeal Rules. The conduct of the present

proceeding before us, therefore cannot be governed by the Elections Rules. D

Of course the Elections Rules would have been relevant if we were dealing with a

matter which had been before the High Court. In that case we would seek to apply

the Elections Rules in the manner that the High Court would have done. But the

matter before us ie the preliminary objection, is a matter which was not and could not

have been before the High Court. In the circumstances, therefore, there could E be

no room at all for our invoking the Elections rules in dealing with the preliminary

objection.

Mr Malaba, learned Senior State Attorney appearing for Republic, the second

respondent, rightly supported the objection. F

In the result, and for the reasons set out above, the preliminary objection is sustained.

The appeal is incompetent for non-extraction of the order in appeal in terms of Rule

89(1)(h) of the Court of Appeal Rules, and it is accordingly struck out with costs. It is

now open to the appellant, if he so wishes, to institute the appeal afresh by making

the appropriate application before the High Court. G

1997 TLR p47