TRANSCONTINENTAL FORWARDERS LTD v TANGANYIKA MOTORS LTD 1997 TLR 328 (CA)

 

TRANSCONTINENTAL FORWARDERS LTD v TANGANYIKA MOTORS LTD 1997 TLR 328 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame J

B CIVIL APPLICATION 58 OF 1997

17 December 1997

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

Court of Tanzania, Dar es Salaam, Msumi J)

Flynote

D Civil Practice and Procedure - Appeal - Application to strike out Notice of Appeal

- Rule 76(2) of Court of Appeal Rules 1979 - To be read with Rule 6(a) in counting

days and computing time scales.

Civil Practice and Procedure - Appeal - Rule 83 requiring appellant to institute appeal

within 60 days of filing E notice of Appeal - Appellant's application for copy of

proceedings not complied with by Registry - Appellant having copied leter to all

relevant parties - Rule 83 complied with.

-Headnote

F The applicant applied to have the respondent's Notice of Appeal struck out for

offending Rule 76(2) of the Court of Appeal Rules 1979 and for failure to comply with

Rule 83(1) of said Rules. The ruling sought to be appealed against had been delivered

on 29 May 1997 and the respondent filed his Notice of Appeal on 12 June 1997. It was

contended that that was on the 15th day and so out of G time by one day, counting

from the day the Ruling was delivered. Respondent contended that the Notice was

filed on the 14th day, arguing that the counting of days commenced with the day

after the event and excluding the day of the event. It was also contended that the

respondent should have instituted his appeal within 60 days of filing the Notice of

Appeal in accordance with Rule 83.

H Held:

(i) That Rule 76(2) had to be read with Rule 6 of the Court of Appeal

Rules, subrule (a) of which provided that the computation of days from an event was

deemed to be exclusive of the day of the event, and that there was no conflict

between the two Rules;

I (ii) That the present respondent, who had applied to the Registry for a

copy of the proceedings sought to be appealed against and had not been furnished

with any, had complied with the Rules by copying his

1997 TLR p329

letter to the relevant parties - there was no legal provision requiring

him to keep reminding A the Registry to forward the proceedings and once Rule 83

was complied with the intending applicant was home and dry.

Case Information

Application dismissed. B

No cases referred to.

Kinguji for the applicant.

Majithia for the respondent.

[zJDz]Judgment

Makame JA:

On behalf of the applicant, Transcontinental Forwarders Ltd, Mr Kinguji learned

advocate, has C applied to have the present respondent's Notice of Appeal struck out

for offending Rule 76(2) of the Court of Appeal Rules, 1979 and for failure to comply

with Rule 83(1) of the said Rules. The respondent's counsel is Mr Majithia learned

advocate. D

It is common ground that the ruling by Msumi J (as he then was) sought to be

appealed from was delivered on 29 May 1997. It is also agreed by both parties that the

respondent filed a Notice of E Appeal on 12 June 1997. Mr Kinguji contends that

that was on the fifteenth day and so out of time by one day, counting as he does from

the day the Ruling was delivered, and so getting three days in May and twelve days in

June, Mr Majithia asserts that he was just in time, having filed on the fourteenth day.

He argues that one counts from the morrow of the event, excluding the day of the F

event, in the present matter the day the Ruling was delivered, on the 29 May 1997.

Rule 76(2) Mr Kinguji is relying on indeed requires that a notice like this one should

be lodged within fourteen days. Mr Majithia does not dispute that but contends that

Rule 6 of the Court of Appeal G Rules governs the computation of the fourteen days.

He cites Rule 6(d) but in my opinion the relevant portion of that Rule, for the purpose

of the present issue, is sub-rule (a) which provides:

`a period of days from the happening of an event or the doing of an act or

thing shall be deemed to be exclusive of the day in which the event happens or the

act or thing is done'. H

I am quite clear in my mind, even without resort to the Law of Limitation Mr

Majithia sought to call in aid, that Rule 76(2) and Rule 6 must be read together and

that, if that is done, there is no I

1997 TLR p330

MAKAME JA

A conflict between the two, on a proper construction. The way to go about counting

days and computing time scales is spelt out in Rule 6 and that has to be done for `any

period of time fixed by these Rules ...', including of course Rule 76. With great respect

therefore, I am unable to accept Mr Kinguji's submission that Rule 6 and Rule 76

conflict each other, 29 May 1997 is therefore not to be B counted in this instance in

computing the fourteen days.

Mr Kinguji also urged that, in any event, the respondent tarried too long after filing

the Notice of Appeal. He should have instituted his appeal within sixty days of filing

the Notice, in accordance with C Rule 83. He did not do so, and it is now over six

months since the High Court Ruling was delivered. The Notice of Appeal should

therefore be deemed to have been withdrawn in terms of Rule 84.

Mr Majithia had a ready answer, and a correct one in my view to this second limb of

Mr Kinguji's D argument: Mr Majithia submitted that he applied on 7 June 1997 for

a copy of the proceedings etc and to-date he has not been furnished with any. He

complied with the Rules by copying his letter to all the relevant parties, including the

firm of Patel & Co, advocates to which Mr Kinguji evidently belongs. Mr Kinguji's

response to this was that Mr Majithia should not have kept quiet after his 7 E June

letter. He should have kept on reminding the Registry. Mr Majithia said in fact he

did. I wish to say only that reminding the Registry after applying for a copy of the

proceedings etc and copying the request to the other party may indeed be the

practical and realistic thing to do, but it is not a F requirement of the law. Once Rule

83 is complied with the intending applicant is home and dry.

The application before me is devoid of merit. It is accordingly dismissed with costs.

1997 TLR p331

A