FRANCIS ITENGEJA v KAMPUNI YA KUSINDIKA MBEGU ZA MAFUTA LTD 1997 TLR 148 (CA) A

 FRANCIS ITENGEJA v KAMPUNI YA KUSINDIKA MBEGU ZA MAFUTA LTD 1997 TLR 148 (CA) A

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JA B

CIVIL APPLICATION 28 OF 1996

20 May 1997

(An application for striking out notice of appeal from the decision of the High Court

of Tanzania, Dar es Salaam, Bubeshi J) C

Flynote

Civil Practice and Procedure - Appeal - Delay in prosecution of - What constitutes -

Failure to serve applicant with a copy of notice of appeal and failure to lodge the

appeal within 60 days D

-Headnote

The applicant applied for the striking out the respondent's notice of appeal for failure

to take essential steps, viz the failure to serve a copy of the notice of appeal on the

applicant or his counsel and to lodge the appeal within 60 days of the filing of the

notice of appeal. E

The respondent contended that it had attempted to serve the copy of the notice of the

appeal on the applicant who had refused to accept such service and directed the

respondent to his legal counsel. The respondent contended further that it had in fact

served the notice on the applicant's counsel. F

Held:

(i) Where a party has engaged the services of counsel then he is perfectly

entitled to direct that any service relating to that case be effected on his counsel: he

was not obliged to accept service personally;

(ii) On the probabilities and facts of the matter it could not be held that the

documents were received by or on behalf of applicant's counsel. G

(iii) The failure to serve the applicant with a copy of the notice of appeal

within 7 days as required by Rule 77(1) and the failure to lodge the appeal within 60

days of the notice as required by Rule 83(1) were in the absence of any extension of

time by the court, grounds which warranted the striking out of the notice of appeal.

H

Case Information

Order accordingly.

No cases referred to.

Kambamwene for the applicant.

Mbezi for the respondent. I

1997 TLR p149

[zJDz]Judgment

Kisanga JA: A

This is an application to strike out a notice of appeal for failure to take two essential

steps, namely (1) to serve a copy of the notice of appeal on the applicant or his

counsel and (2) to lodge the appeal within sixty days of the filing of the notice of

appeal. The matter originates from the decision by the High Court (Bubeshi J)

refusing an application to restore Civil Appeal No 91 of 1994 which had been B

dismissed for want of prosecution. Following such refusal the respondent company

was aggrieved, duly gave notice of its intention to appeal and obtained leave to appeal

to this Court against the refusal. Meantime, however, and as C already intimated,

the applicant has now brought this notice of motion seeking to have the notice of

appeal struck out on the grounds as indicated above. Before me the applicant was

represented by Mr J R Kambamwene, learned advocate while Mr D C Mbezi, learned

advocate, appeared for the respondent company. D

The notice of motion is duly supported by the affidavit of Mr Kambamwene and that

of the applicant himself. Both affidavits are to the effect that the respondent has failed

to serve the applicant or his counsel with a copy of the notice of appeal and has failed

to lodge the appeal within sixty days of the notice of appeal. Elaborating E on this in

his oral submission, Mr Kambamwene maintained that as regards the failure to lodge

the appeal within the prescribed period of sixty days, the respondent could not

benefit from the exception under Rule 83(1) of the Court of Appeal Rules because the

respondent did not serve the applicant or his counsel with any copy of a letter to the

Registrar requesting for proceedings of the case in question. F

In response to this, two counter-affidavits were filed by Mr Mbezi and by one Mr

Hyera, a principal officer of the respondent company. The depositions are to the

effect that at first, attempt was made to serve on the applicant personally a copy of G

the letter to the Registrar applying for proceedings, but that the applicant declined

service and directed that the service be effected on his advocate, which was

accordingly done within the time prescribed by the Court of Appeal Rules. H

It is elementary in matters of procedure that he who makes an allegation has the

burden of proving it. In the context of this case Mr Mbezi and his client have the

burden of proving their claim that they did serve on Mr Kambamwene, the

applicant's advocate, the two documents in issue ie the copy of the notice of appeal

and the copy of the letter to the Registrar applying for proceedings. In an I

1997 TLR p150

KISANGA JA

A attempt to discharge that burden Mr Mbezi produced a dispatch book which was

allegedly signed to acknowledge receipt of the two documents. According to Mr

Hyera who claims to have effected the service, he went to Mr Kambamwene's

chambers in Dar es Salaam and there handed to someone an envelope containing B

the two documents. The handing ever of the envelope was against signature in the

said dispatch book, but Mr Hyera does not know the name or otherwise the identity

of the person so receiving the envelope and signing for it. Mr Kambamwene

completely refuted the allegation.

C I have anxiously considered this matter in the course of which I have examined

closely the relevant page of the dispatch book produced by Mr Mbezi. There is one

striking feature which appears on this page. The spot corresponding to the alleged

signature is rubbed off and completely obliterated such that no signature is

identifiable there. In other words it is not possible for anyone to say that the D

signature which has been rubbed off was or was not of a person working at Mr

Kambamwene's chambers. As such, therefore, the dispatch book is completely

worthless as evidence to prove that the two documents in question were received by,

or on behalf of, Mr Kambamwene, the applicant's counsel as alleged. In other E

words the signature which has been rubbed off from the dispatch book could be of

any person quite unconnected with Mr Kambamwene or his chambers. Indeed Mr

Mbezi conceded this point.

If the dispatch book cannot be relied upon to prove service of the two documents on

the applicant's advocate, then what other evidence is there to prove it? I could find

none. F

Mr Mbezi in another dimension contended that the two documents should be

deemed to have been duly served on the applicant personally when he declined to

accept them and directed them to be served on his advocate. With due respect I G

cannot agree. Where a party to a case has engaged the services of counsel then in my

view he is perfectly entitled to direct that any service relating to that case be effected

on his counsel. He may, of course, accept service personally and then pass it on to his

lawyer, but to my mind he is not obliged or bound to do so. Nor can such a party

properly be said to have refused service in so doing. For, H all that he has done is to

direct that the service be effected on his agent, and if such agent does exist and is

identifiable then the party could not properly be said to have refused service; rather

the party is merely saying that the matter should be referred to his agent who is

better placed in terms of, say, expertise to deal with the matter. The position would

be differ- I

1997 TLR p151

KISANGA JA

ent if the said agent does not in fact exist; but this was not the position in the A

present case because the applicant's advocate was known and could be located. I am

therefore of the settled view that no service was effected on the applicant personally

when he declined and directed that the same be effected on his counsel.

In yet another desperate attempt to resist the application Mr Mbezi referred to a B

letter (EMS dated 4 December 1995) addressed to Mr Kambamwene and apparently

enclosing copies of the two documents in question. According to the learned counsel,

the two documents were thereby duly served on Mr Kambamwene, the applicant's

advocate. However, as rightly pointed out by Mr Kambamwene, on the date of that

letter ie 4 December 1995 the time for serving C the documents on the applicant

had long elapsed, although the documents themselves were apparently written on

time.

The net result, therefore, is that the respondent has failed to prove the allegation that

the two documents ie a copy of the notice of appeal and a copy of the letter to D the

Registrar applying for the proceedings of the case, were duly served on the applicant

or his counsel. Since there has been no application for extension of time to serve these

documents on the applicant, the present application must succeed. As Mr

Kambamwene rightly pointed out, the respondent company cannot in terms of the

exception under Rule 83(1) of the Rules claim protection against the time E running

against it because the applicant was not duly served with a copy of the letter to the

Registrar applying for court proceedings in the case. That is to say, the time for

lodging the appeal has long elapsed, and there is nothing to salvage that situation. F

Thus, failure to serve the applicant with a copy of the notice of appeal within seven

days of the notice as required by Rule 77(1) of the Rules, and failure to lodge the

appeal within 60 days of the notice as required by Rule 83(1) are, in the absence of

any evidence of extension of time by the Court to do these things, grounds which

warrant the striking out of the notice of appeal, which I hereby do. The applicant is to

have his costs. G

1997 TLR p152