STEPHEN WASIRA v JOSEPH WARIOBA 1997 TLR 205 (CA)

 STEPHEN WASIRA v JOSEPH WARIOBA 1997 TLR 205 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA and Samatta JJA and Mroso AgJA

C

CIVIL APPEAL 50 OF 1996

21 August 1997 D

(Appeal from the judgment of the High Court of Tanzania, Musoma, Lugakingira J)

Flynote

Civil Practice and Procedure - Appeals - Requirements - Rule 77 - Copy of notice of

appeal to be served on E respondent.

Civil Practice and Procedure - Appeals - Requirements - Rule 83(1) - Exception in

proviso to Rule 83(1) could only be invoked where copy of letter applying for

proceedings served on respondent in terms of Rule 20(7) of Court of Appeal Rules. F

-Headnote

In an appeal against the nullification of an election result by the High Court the

respondent filed two preliminary objections, viz that the appellant had failed to

comply with the provisions of Rule 77 in that he had not served a copy of the notice

of appeal on the respondent, and that the appeal had G been instituted out of time

and without prior leave to do so.

Held:

(i) After an examination of all the circumstances of the case it was more

likely than not that the respondent was not served with a copy of the appellant's

notice of appeal. Since the H appellant had not taken steps to remedy the defect

until only after he was prompted by the respondent's notice of the preliminary

objection, the appeal coud not be saved;

(ii) as regards the objection that the appeal had been lodged out of time,

the appellant could only rely on the exception to the 60 day rule provided for in the

proviso to Rule 83(1) if he I had sent to the respon-

1997 TLR p206

A dent a copy of his letter to the Registrar applying for proceedings. In

terms of Rule 20(7) of the Court of Appeal Rules this had to be served on the

respondent. In the absence of proof of such service the objection had to be upheld.

Case Information

Order accordingly.

B Case referred to:

1. Aluminium Africa Ltd v Adil Abdallah Dhiyebi Civil Application No 6

of 1990 (unreported)

Dr Lamwai and Marando for the appellant.

C Rweyemamu and Dr Mwaikusa for the respondent.

[zJDz]Judgment

Kisanga, JA

During the 1995 general election Mr Stephen Masatu Wasira had been elected

Member of D Parliament for the Bunda constituency, but his election was

subsequently nullified by the High Court (Lugakingira, J) following an election

petition filed by one of his opponents, Mr Joseph Sinde Warioba. Dissatisfied with the

nullification of his election Mr Wasira sought to appeal to this Court, but before the

appeal was heard Counsel for Mr Warioba, the respondent, filed two preliminary E

objections to the appeal alleging two grounds: The first ground alleges noncompliance

with Rule 77 of the Court of Appeal Rules in that no copy of the

appellant's notice of appeal was served on the respondent or his Counsel. In the

second ground it is alleged that the appeal has been instituted out F of time and

without prior leave to do so.

At the heading of this preliminary objection, the respondent was represented by Mr J

S Rweyemamu and Dr J T Mwaikusa, learned advocates while Dr M R M Lamwai and

Mr Marando, G learned advocates appeared for the appellant. Before the hearing of

the preliminary objection commenced, Dr Lamwai informed the Court that there was

pending before this Court Civil Application No 29 of 1997 in which the appellant is

applying for extension of time to serve the notice of appeal on the respondent. He

further disclosed that that application was filed under a certificate H of urgency but

the Chief Justice by an administrative decision directed that the preliminary objection

which was filed earlier be heard first. Dr Lamwai, therefore, at first urged us to

review the administrative decision of the Chief Justice and to hear that application

first, but after some preliminary observations of the Court he conceded that the

preliminary objection has to be heard I first.

1997 TLR p207

KISANGA JA

It was common ground that the judgement of the High Court giving rise to this appeal

was delivered A at Musoma on 30 August 1996, and that the appellant promptly filed

his notice of appeal on 2 September 1996. However the question whether the

appellant served a copy of that notice on the respondent, as required by Rule 77 of the

Court of Appeal Rules, is seriously in dispute and is the B subject matter for

determination in this proceeding. The appellant asserts that a copy of that notice was

duly served on the respondent, but the respondent vehemently denies it. Each side

adduced evidence by affidavit in support of their respective claims.

The appellant filed two affidavits. One of them is dated 16 June 1997 and the other,

being a reply to C the respondent's counter-affidavit, is dated 29 July 1997. In both

affidavits the appellant says in effect that on 2 September 1996 he went to the

Mwanza High Court registry where he found Mr Rweyemamu, the advocate who had

acted for the respondent in the High Court. He sought to serve D the copy of the

notice of appeal on him but Mr Rweyemamu declined service on the ground that his

instructions were limited to representing the respondent in the High Court only.

Whereupon the appellant decided to go to serve the respondent at the New Mwanza

Hotel where he, the respondent, was staying. He arrived at the hotel at about 9 am

and upon inquiring he was informed E by one John Natay, a receptionist at the

hotel, that the respondent was around. He then left the copy of the notice with John

Natay with instructions to deliver it to the respondent. The appellant made no follow

up on the matter after that. F

The said John Natay filed an affidavit in support of the appellant's case. He said in

effect that on 2 September 1996 he delivered notice of appeal to the respondent on

the instructions of the appellant.

The respondent in his counter-affidavit said that he was staying at the New Mwanza

Hotel but G checked out of the hotel at 8.30 am on 2 September 1996 to catch a

flight to Dar Es Salaam that day. He produced the carbon copy of the coupon of his

used ticket which shows that the take off time of his plane that day was 10.05 am. He

also produced a copy of the passenger manifest which bears his name as being one of

the passengers travelling from Mwanza to Dar es Salaam on 2 H September 1996. For

the respondent, therefore, it was contended that having checked out of the hotel at

8.30 am he could not have been served with the said notice of appeal which was

allegedly brought to the hotel by the appellant at about 9 am. In response to this,

however, the appellant in his I

1997 TLR p208

KISANGA JA

A reply to the appellant's counter-affidavit maintained that the respondent was still

at the hotel by 9 am that day because John Natay confirmed this to him.

Thus it amounts to one man's word against that of another. It is the word of the

respondent who B claims that he checked out of the hotel at 8.30 am as against that

of the appellant who maintains that the respondent was still at the hotel at 9 am. We

now have the task of assessing the material before us and to decide which of the two

stories is to be accepted.

C To start with, it is to be observed that the appellant himself did not see the

respondent at Mwanza Hotel. He depends entirely on what Natay told him. But Natay

does not say what time he delivered the notice to the respondent. So that when the

respondent says that he checked out of the hotel at 8.30 am there is nothing to

contradict him on that. The appellant's statement that according to D Natay the

respondent was still at the hotel at 9 am that day is not enough; it required Natay

himself to confirm it on oath, which he has not. As it is now one cannot assume that

if Natay were asked he would necessarily have confirmed it. Indeed Natay might very

well have come up with his own E version; he might have said that he delivered the

notice to the respondent at 11 am which could not be true because by then the

respondent, whose flight departure time was 10.05 am, would have already left

Mwanza for Dar es Salaam.

In the course of submissions by Counsel, it appeared to be common ground that for

domestic F flights passengers are required to report for checking in at the airport one

hour before departure time. According to the respondent's used ticket then he had to

be at the airport at about 9.05 am, and given that it takes some twenty to thirty

minutes to drive to the airport, it seems less likely that the respondent would still be

at Mwanza Hotel at 9 am by which time he ought to be at the airport. G On the

other hand the respondent's version that he checked out of the hotel at 8.30 am

appears more likely because that would give him allowance of about 30 minutes to

drive to reach the airport in time for checking in at about 9.05 am.

H Dr Lamwai came up with suggestions that the respondent's departure time for his

flight may have been re-scheduled in such a way which made it possible for him to

leave the hotel later that 8.30 am. Counsel also contended that the respondent, as a

former Prime Minister, travels in style whereby someone would check him in and he

does not have to stand in the queue. So that he could have left the hotel late and

therefore he need not have left the hotel so early in order to beat the I scheduled

time for reporting. However, all

1997 TLR p209

KISANGA JA

this was mere speculation. No evidence whatsoever was adduced to show or suggest

that there A were any changes in the scheduled times for reporting or take off, or

that someone checked the respondent in while the respondent could remain behind

at the hotel for some time. What is more, it was apparent from the passenger manifest

that the respondent was travelling in a group of not less B than five passengers, most

of them members of his family. No evidence was adduced to show that he severed

himself from this group and remained behind at the hotel while the rest proceeded to

the airport for checking in on schedule.

On the other hand there are some aspects in the appellant's story which tend to

render that story C less probable. First of all when this notice of preliminary

objection was served on him, his first reaction was to go to Court and apply for

extension of time to serve the notice of appeal on the respondent. He did this in Civil

Application No 29 of 1997 which was referred to at the beginning of this Ruling.

Paragraph 7 of the affidavit in support of that application is reproduced word for

word in D paragraph 10 of the affidavit dated 16 June 1997 which the appellant is

relying on in this proceeding. That paragraph says:

`Further that non-service of the notice upon the 1st respondent is not out of

my negligence but out of the fact that E New Mwanza Hotel staff.'

The paragraph appears to be a clear admission by the appellant that the respondent

was not served with the notice of appeal, and that is why he says in para 3 of the said

affidavit of 16 June F 1996 that he applied to the Court for enlargement of time to

serve the respondent accordingly. It is only in that way that the appellant's story can

make sense. His subsequent claim that Natay informed him that he duly served the

notice of appeal on the respondent sounds more of an G afterthought. For, when

confronted with this allegation of non-service of the notice on the respondent, one

would normally expect that the first thing appellant would have done was to turn to

John Natay and ask him to confirm whether or not he had delivered the notice to the

respondent as H instructed. And if the answer was in the affirmative then the

natural thing to do was for the appellant to place that information before the Court in

answer to the preliminary objection. It is only if John Natay confirmed non-service

that the appellant would be expected to move the Court, as he did, for leave to do so

out of time. But to say that the appellant would go to Court to ask for such I leave

when he already

1997 TLR p210

KISANGA JA

A knew that the respondent had been duly served sounds odd to say the least. In

our view the more likely thing is that the appellant went to Court to apply for leave

to serve the respondent with the notice of appeal out of time after he had satisfied

himself that the respondent had not been served with such notice.

B There is yet another aspect of the appellant's conduct which raises some concern.

A copy of the notice of appeal is directed to the respondent through his advocate, Mr

J S Rweyemamu at Mr Rweyemamu's address in Bukoba. This raises a number of

questions. First, the case was decided at Musoma. Now, since it is undisputed that

both the appellant and the respondent are living in Dar C es Salaam why was it

necessary to route the notice through the respondent's advocate in Bukoba instead of

sending it direct to the respondent through his address for service in Dar es Salaam

which was well known to the appellant? More so especially as the appellant himself

travelled to Dar D es Salaam shortly after preparing the notice of appeal on 2

September 1996 because he held a press conference in Dar es Salaam on 8 September

1996.

Again the appellant, appreciating the importance of serving the respondent with the

notice, says that he went personally to serve the respondent with the notice at the

New Mwanza Hotel. If this is so E then why did he not ascertain that the respondent

was in fact served either by himself effecting the service or by waiting for John Natay

to return to him and confirm the service on the respondent? Why did the appellant

not seek to have the respondent's signature against the receipt of such an important

document? Worse still the appellant says in his affidavit that he never made a follow

up F on the matter until the notice of preliminary objection was served on him. It is

most strange that the appellant would fail to make a follow up on such an important

matter. These are some of the G additional matters which is our view, serve to make

the appellant's story increasingly less likely.

Considering all the circumstances of the case, therefore, we are satisfied that it is

more likely than not that the respondent was not served with a copy of the appellant's

notice of appeal. That renders H the appeal defective. Since the appellant did not

take steps to remedy the defect until only after he was prompted by the respondent's

notice of this preliminary objection, the appeal cannot now be saved. We shall make

the final order after considering the other ground of objection.

I As stated earlier, the second leg of the objection alleges that the appeal has been

instituted out of time and without leave to do so.

1997 TLR p211

KISANGA JA

The notice of appeal was lodged in Court on 2 September 1996, and in terms of Rule

83(1) of the A Court of Appeal Rules the appeal ought to have been instituted within

sixty days of that date. That is to say, the deadline for instituting the appeal was on 2

November 1996, but the appeal was lodged in Court only on 15 November 1996. That

was clearly out of time unless the appellant could rely on B the exception to the

sixty days rule provided for in the proviso to Rule 83(1). Mr Rweyemamu submitted

that the appellant could not rely on that exception because he had not satisfied one

condition for invoking it. Learned Counsel went on to say that contrary to what the

law requires, the appellant did not send to the respondent or his advocate a copy of

the letter to the Registrar C applying for proceedings in the case; and that indeed

there was no evidence that the appellant had written any such letter to the Registrar.

Refuting all this, Dr Lamwai cited a letter in the original court case file, addressed to

the Registrar by the appellant and dated 2 September 1996 by which the appellant

applied for proceedings in the D case, with a copy of that letter to the respondent in

the care of his advocate, Mr M S Rweyemamu at this address in Bukoba. Dr Lamwai,

therefore, contended that not only was the letter applying for proceedings written to

the Registrar, but that a copy of that letter was also sent to the respondent E through

his advocate. Learned Counsel further submitted that proof of service was evidenced

by the fact that the letter was copied to the respondent in the care of his advocate,

and for this submission he relied on the decision of a single judge of this Court

(Mfalila, JA) in the case of F Aluminium Africa Ltd v Adil Abdallah Dhiyebi (1). In

that case the learned judge had expressed the view that all that an appellant need

show is that he sent to the respondent a copy of his letter to the Registrar applying for

proceedings, and that the fact that such letter was copied to the respondent was

enough proof (the emphasis is supplied.) G

With due respect, however, Dr Lamwai overlooked the fact that this decision of the

single judge was reversed upon a reference to the full Court, vide Reference Civil

Application No 6 of 1990. In the H course of hearing that reference the Court found

that, upon his own admission, the appellant had not sent to the respondent a copy of

his letter to the Registrar even though the letter itself was shown to have been copied

to the respondent. Thus the Court did not decide on what constitutes `sending'

within the meaning of sub-Rule (2) of Rule 83 of the Rules which requires that a copy

of such letter be sent to the respondent. Happily, however, Dr Mwaikusa cited a

statu- I

1997 TLR p212

KISANGA JA

A tory provision which supplies the answer. It is Rule 20(7) of the Court of Appeal

Rules which says:

`20 (7) Where any document is required to be sent to any person, the

document may be sent by hand or by B registered post to that person or to any

person entitled under Rule 28 to appear on his behalf and notice of the date fixed for

the hearing of an application or appeal or for the deliver of judgement or the reasons

for any decision may be given by telephone or telegram.'

C For the appellant in the instant case it was merely shown that the letter in

question was copied to the respondent's advocate, and nothing more. It is quite clear

that that was no proof of service within the meaning of the above rule. We therefore

find that the letter in question was not sent to the respondent and, consequently the

appellant is not entitled to rely on the exception of Rule 83(1).

D Upon further examination of the original court case file Dr Mwaikusa brought to

our attention the fact that the carbon copy of the appellant's letter to the Registrar

was still in the file. The learned Counsel submitted that since the said letter to the

Registrar is shown to have been copied to the respondent only, it follows that the

carbon copy found in the file is the one which was supposed to E be sent to the

respondent but was not in fact sent. We have no good reason to differ from that view.

There is yet another point which reinforces our finding that the copy of the said letter

to the F Registrar was not sent to the respondent. The appellant, in his Application

No 29 of 1997 referred to in para 3 of his affidavit in this proceeding, is applying to

this Court for leave to appeal out of time. It seems plain that he took that step because

he was satisfied that he could not rely on the exception to Rule 83(1) as he had not

sent to the respondent the copy of his letter to the Registrar. His G subsequent claim

that the copy was duly sent to the respondent was an afterthought. It was a desperate

attempt to save the situation after the administrative decision by the Chief Justice that

the preliminary objection be heard first before the appellant's application. It therefore

follows that the H appeal which was filed only on 15 November 1996 was time

barred and hence bad in law as it was so filed without prior leave to do so.

In the result the preliminary objection is sustained on both grounds of the appellant's

failure to serve the respondent with a copy of the notice of appeal, and of instituting

the appeal out of time. I Accordingly the appeal is struck out with costs.

1997 TLR p213

A