ATLANTIC ELECTRIC LTD v MOROGORO REGION COOPERATIVE UNION (1984) LTD 1993 TLR 12 (CA)

ATLANTIC ELECTRIC LTD v MOROGORO REGION COOPERATIVE UNION (1984) LTD 1993 TLR 12 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Ramadhani JA

F CIVIL APPLICATION NO. 26 OF 1990

11 March, 1991

G (From the Ruling of the High Court of Tanzania at Dar es Salaam, Mapigano, J.)

Flynote

Court of Appeal Rules - Notice of Intention to Appeal - Essentials of a Notice of

Appeal - Form and Content of a Notice of Appeal - Form D in the First Schedule to

the Court of Appeal Rules 1979.

H Civil Practice and Procedure - Appeals to the Court of Appeal - Time in which to

appeal and steps necessary to take before instituting appeal - Rule 83 of the Court of

Appeal Rules 1979.

Court of Appeal Rules - Right to apply for extension of time to appeal - Whether

provisions prescribing period in which necessary steps for instituting appeals should

be taken are mandatory - Rules 8 and 83 of the Court of I Appeal Rules 1979.

1993 TLR p13

-Headnote

In a suit before the High Court the Applicant obtained an ex-parte judgment against

the Respondent. A The Respondent's application for extension of time in which to

apply for review of the ex-parte judgment was dismissed by the High Court. The

Respondent then filed a Notice of intention to appeal to the Court of Appeal against

that dismissal. More than two months after filing the Notice of Appeal B the

Applicant filed this application to strike out the said Notice, advancing three grounds:

that the Notice of Appeal was bad in law; that after filing the Notice the Respondent

had not taken the necessary steps to prosecute the appeal; and that the Respondent

had no serious intention to pursue the appeal.

Held: (i) The provision that a notice of appeal shall be substantially in the Form

D in the First C schedule to the Court of Appeal Rules 1979 means that in drawing a

notice of appeal the format given in Form D may be disregarded but not the substance

of the information listed in it;

(ii) As it did not bear an endorsement signature by the Court Registry

showing the date when it was lodged there as provided in r. 15 of the Court of Appeal

Rules 1979, the Notice of Appeal was bad in law; D

(iii) Under r. 83 of the Court of Appeal Rules 1979 an appeal should be

instituted within 60 days of filing the Notice of Appeal; as to institute an appeal the

record of appeal has to be filed, applying for and obtaining a copy of proceedings from

the High Court are necessary steps to be taken well in time before the appeal can be

instituted; E

(iv) The provision, in r. 8, allowing applications to be made for extensions

of time does not mean that the rules prescribing the period in which to institute

appeals and providing for the taking of necessary steps for instituting appeals are not

mandatory;

(v) By not applying for a copy of proceedings and for leave to appeal, the

Respondent omitted to take necessary steps for the prosecution of the intended appeal

in time. F

Case Information

Application granted

Cases referred to:

1. Hills v. Stanford [1904] 23 NZLR 1661.

2. Victorian Chamber of Manufacturers v. Commonwealth [1943] 67 CLR

347. G

J.T. Mwaikusa, for the applicant.

E.D. Kisusi, for the respondent. H

[zJDz]Judgment

Ramadhani JA: This is an application to strike out a Notice of Appeal under Rule 52 of

the Tanzania Court of Appeal Rules. The applicant is The Atlantic Electrical Limited

who was represented by Mr Mwaikusa, learned Advocate, and the respondent is The

Morogoro Region Co-operative Union advocated for by Mr Kisusi, learned Counsel. I

1993 TLR p14

RAMADHANI JA

A The applicant had filed a suit on 1 November 1989 against the respondent in the

High Court and obtained an ex-parte judgment as the respondent did not appear.

When the applicant was in the process of execution the respondent made an

application before the High Court for the extension of time in which to apply for the

review of the ex-parte judgment. That application was dismissed by B Mapigano J, as

he was then, on 18 September 1990, whereupon the present respondent filed a Notice

of Appeal to this Court objecting to that dismissal on 1 October 1990.

This application is to strike out the said notice of appeal. An affidavit supporting the

notice of motion C was duly filed cataloguing the grounds for striking out the notice

of appeal.

When the application came for hearing on 19 February 1991 Mr Kisusi, for the

respondent, made an informal application for the extension of time in which to file an

affidavit in reply. He said that he had D been briefed by his client just on 17

February and that he was then bereaved. He said that some of the factual matters

contained in the affidavit had been overtaken by events. Mr Mwaikusa objected to

that because the notice of motion was served on the respondent since 31 January 1991

and that they had ample time to file an affidavit in reply. He added that Mr Kisusi had

appeared three times E before the High Court representing the respondent in other

applications before that Court since 1 February so he could not be heard to say that he

was not briefed. Mr Kisusi replied that he had been instructed for matters before the

High Court but not for this application.

F On 20 February I gave an order granting the application but I reserved giving my

reasons until now. Admittedly the respondent was served in over 14 clear days while

Rule 52(1) prescribed at least two clear days. So even if there was actual lateness in

giving instructions to the counsel that was squarely the carelessness of the respondent

himself and could not be sufficient reason to extend G time. However, as striking out

of a notice of appeal is a serious matter and as there were allegations that certain facts

were overtaken by events I was inclined to adjourn the hearing and afford the

respondent an opportunity to file an affidavit so that the Court would be seized of all

facts when H determining the motion. I gave the respondent the order to file the

affidavit in reply by 26 February 1991 and the hearing to be on 28 February.

When the Court reconvened to hear the motion Mr Mwaikusa, for the appellant, had

a preliminary I objection. He sought to move the Court to strike out the affidavit in

reply filed by the respondent.

1993 TLR p15

RAMADHANI JA

He gave three grounds: First, he said he had been served with a copy of the affidavit

that same A morning within the Court premises. Explanations by Mr Kisusi to the

effect that attempts to locate him previously were abortive were refuted by Mr

Mwaikusa. He said that a copy of the same could have been left with his Secretary at

the Faculty of Law which he had given as his address for B service. Second, Mr

Mwaikusa said that the order which I gave as to the filing of the affidavit by 26

February was not complied with in that the same was filed on 27 February and no

leave had been sought to extend time. Mr Kisusi invoked Rule 8 that leave for

extension of time could be applied for even after the affidavit had been filed. Third,

Mr Mwaikusa submitted that the signature purported to C be that of one Mr Tayari

and appendaged on the affidavit on behalf of the respondent, is so different from

other signatures of Mr Tayari in other documents, pertaining to this same dispute,

filed in the High Court. He referred the Court to some of these documents. Mr Kisusi

first challenged the D competence of Mr Mwaikusa to question the authenticity of

signatures. However, Mr Kisusi admitted to the Court that the signature on the

affidavit is so much different from the signatures in other Court documents. Mr

Mwaikusa submitted that the affidavit in question cannot be said to have been

attested to by Mr Tayari and consequently, he argued, there is no affidavit before the

Court. E

Grounds numbers two and three are sufficient to dispose of the preliminary objection.

The purported affidavit in reply was filed outside the time limit I prescribed in my

order. There was no application for leave to extend time. Mr Kisusi only pointed out

Rule 8 which permits an application to extend time F before or after the act but he

did not so apply. But even if there was such an application I would not have granted

it. I allowed to adjourn the hearing to give him time to file the affidavit in the first

place by over-stretching my indulgence otherwise there was no merits. Then, as Mr

Kisusi conceded, the G signature of the affidavit did not in any aspect resemble the

others by Mr Tayari. In fact the signature is not that of Mr Tayari. The situation to say

the least borders forgery. Therefore there was no affidavit at all and that is why I

decided to ignore that piece of paper and to proceed with hearing the motion but

reserving giving my reason to the present. H

Three grounds have been advanced for the application to strike out the notice of

appeal.

The first ground was that the notice of appeal is bad in law. Mr Mwaikusa had

pointed out four defects. One, it did not conform with Form D of the First Schedule

of the Tanzania Court of Appeal I

1993 TLR p16

RAMADHANI JA

A Rules 1979. Two, the notice of appeal was a mere letter addressed to the Registrar

of the High Court. Three, there was no citation of the rule or rules under which it

was made. Four, there was no indication of where or when it was lodged and,

according to Mr Mwaikusa, this was the most serious flaw.

B Mr Kisusi said that the notice of appeal was not bad in law. He submitted that

Rule 76(6) merely provides that a notice of appeal is to be `substantially in the Form

D'. He argued that three is no requirement that a notice of appeal is to be as Form D.

He said that the notice of appeal had been addressed to the Registrar of the High

Court as required by rule 76(1). He pointed out that the names C of the parties had

been given, a description of the suit at the High Court had been provided and so was

the date of the decision complained of. He admitted that there were a few omissions

like not mentioning the Court of Appeal as is done in Form D. Also the date the

notice of appeal was received D is missing but he produced a G.R.R. No. 214726 for

Shs 800/=, the fee required for lodging a notice of appeal, which was issued on 1

October 1990 as evidence of when it was lodged.

The second ground for striking out the notice of appeal was that since it was lodged

necessary steps E had not been taken to prosecute it. He mentioned the necessary

steps to be two. One, copies of the proceedings had not been applied for as required

under Rule 83 while more than thirty days had elapsed. Two, no application had been

made for leave to appeal under Rule 76(5). He said that that could be made either

before or after the notice of appeal and that there was no need to extract the F

decree.

Mr Kisusi's reply was that it was not mandatory to apply for the records of the

proceedings within thirty days. He said that a party would observe that only if he

wanted to avail himself of the benefits G under Rule 83. These are, he said, the

exclusion of the period taken to prepare the records when computing the sixty days

prescribed for instituting an appeal. Mr Kisusi submitted that failure to institute an

appeal could be cured by an application for leave to extend time under Rule 8

therefore a H party was not obliged to apply for a copy of proceedings within thirty

days.

The third ground advanced by Mr Mwaikusa was that the respondent had not

manifested any serious intention to pursue the appeal and that the notice of appeal

was merely used to frustrate the execution of the decree of the High Court which was

in favour of the applicant. He submitted that I finances could not have been a

problem as Court fees could have been exempted under Rule 122

1993 TLR p17

RAMADHANI JA

upon proof of sufficient cause and even Court records could have been prepared by

the High Court. A So Mr Mwaikusa prayed for the striking out of the notice of

appeal with costs. He also submitted that costs for the delay in the execution of the

decree could be covered if interest at the bank rate is ordered.

Mr Kisusi submitted that certain steps had been taken. However, the elaboration of

those steps was B objected to my Mr Mwaikusa on the grounds that there was no

affidavit in reply and that the counsel could not adduce evidence. It was agreed that

the Court could take judicial notice of the records of the High Court. Mr Kisusi said

that it was superfluous to apply for the extension of time C before leave to appeal

was granted. Hence he argued that the notice of motion was premature for it could

not be said that the respondent could not proceed with the intended appeal. He also

said that the disbursement of the decretal amount was not prevented by the

respondent but that the order of 10 August 1990 by Mapigano J lifted the Garnishee

Order and so the moneys were held by the High D Court pending further orders by

the same Court.

Mr Mwaikusa replied that until then no leave to appeal had been granted by the High

Court and also there was no application for extension of time made before this Court.

He also submitted that the E order of Mapigano J on 10 August 1990 was a

temporary one while the final order was that of 18 September 1990 against which the

respondent had filed the notice of appeal in question. Mr Mwaikusa said that every

time the appellant asked for execution they were reminded of the pending notice of

appeal. F

Let me start with whether or not the Notice of Appeal is bad in law. Rule 76(6)

provides as follows -

`A notice of appeal shall be substantially in the Form D in the First Schedule

to these Rules and shall be signed by or on behalf of the appellant.' (Emphasis

provided.) G

On the outset that sub-rule uses the word `shall' in saying `a notice of appeal shall be'

and so it is mandatory: the notice of appeal must be substantially in the Form D. The

only question is what is to be substantially in the Form D. Mr Kisusi merely said that

there was no requirement that a notice of H appeal was to be as Form D. Mr

Mwaikusa responded to that by saying that the phrase meant functionally sufficient

to perform the purposes intended.

The phrase `substantially in Form D' has not in my knowledge, been defined in any

decision of this Court. My research has also failed to produce any authority on the

issue and none has been cited I

1993 TLR p18

RAMADHANI JA

A to me either of the learned counsel. So I am somewhat on new ground.

The word `substantially' is the adjective of `substance'. The provision could be

rephrased `a notice of appeal shall be as Form D in substance . . .' Now what does that

mean?

B The word `substance' is defined in Chamber's Dictionary thus:

`that in which qualities or attributes exist; the existence to which qualities

belong; that which constitutes anything what it is; the principal part; gist; subject

matter . . .'

C According to Stout CJ in the New Zealand case of Hills v Stanford (1) at 1065.

`The word "substance" is a philosophical term with a long history, and

according to philosophical terminology it D means "that which requires for its

existence the existence of nothing else". It is the "substrate", the "essence", the "thing

in itself". It has to be thought of or inferred apart from its accidents . . .'

From the foregoing exposition then we have first to determine the substance of Form

D. What E makes Form D not Forms A, B or C or whatever other forms prescribed

by the Rules. What is the essence, the content of Form D. After determining that

then we have to see whether or not the notice F of appeal in dispute is substantially

in Form D.

Of essence there are ten pieces of information required to be given in Form D to wit:

(1) The matter is to be dealt with in the Court of Appeal of Tanzania at a

named centre.

(2) The name of parties.

G (3) The number of the case complained against.

(4) The name of the judge whose decision is the subject matter of the

appeal.

(5) An indication of whether the appeal is against the whole decision or

just a certain specified part of the decision.

H (6) The address for service for the appellant.

(7) To whom copies of the notice of appeal is intended to be served.

(8) Date of the notice of appeal.

(9) Signature of the appellant or his advocate.

I (10) The High Court Registry to which the notice of appeal is addressed.

1993 TLR p19

RAMADHANI JA

(11) The date on which the notice of appeal was lodged. A

(12) The signature of the Registrar.

Before analysing the notice of appeal in dispute it is proper, at this juncture, to make

one point very clear. Mr Mwaikusa complained that the notice of appeal was like a

letter. That is very true. There is B even `Dear Sir' written. But our concern is the

substance, the content and not the form. Thus it was said in Victorian Chamber of

Manufacturers v Commonwealth (2) at 377:

`The words "in substance" indicate that in making the necessary comparison

form should be disregarded.' C

So it is not the format of Form D that is material but the content of Form D.

Going through the disputed notice of appeal I find three of the twelve matters

enumerated above D missing. At the outset there is no indication that the matter is

to be before the Court of Appeal. However, that has been indicated in the body of the

notice of appeal where the words of Form D have been used `. . . intends to appeal to

the Court of Appeal of Tanzania . . .' So that cannot be said E to have been really

offended. Then the date when the notice of appeal was lodged is not shown and lastly

there is no signature of the Registrar. Mr Kisusi produced the receipt and claimed that

it was issued the day the notice of appeal was lodged. That could be said to

supplement the notice of F appeal. But it would seem that it will not suffice. Rule 15

is offended since it provides that:

`Whenever any document is lodged in the Registry or in a sub-registry or in

the registry of the High Court under or in accordance with these Rules, the Registrar

or deputy registrar or the Registrar of the High Court, as the case may G be, shall

forthwith cause it to be endorsed, showing the date and time when it was lodged.'

To that extent it is my well considered opinion that the said notice of appeal is bad in

law.

The second ground advanced for the striking out of the notice was that no necessary

steps had been H taken. These were mentioned to have been applications for a copy

of proceedings and for leave to appeal.

As for the copy of proceedings Mr Kisusi submitted that it was not mandatory to

apply for them within thirty days unless a party wanted to avail himself with the

advantage of excluding the time used in the preparation of the records from the sixty

days limitation I

1993 TLR p20

RAMADHANI JA

A provided under Rule 83. He relied on Rule 8 to apply for extention of time.

With all due respect to the learned Counsel that argument is odd to say the least.

Under Rule 83 the appeal was required to be instituted within sixty days of filing the

notice of appeal. Thus if the notice B of appeal was filed on 1 October 1990, as

claimed, then the institution should have been by or on 1 December 1990. But in

order to institute the appeal the record of appeal had to be filed; that is, they must

have been obtained. This presupposes that they had already been applied for. Now

none of these steps had been taken when this motion to have the notice of appeal

struck out was filed on 22 C December 1990. This is nineteen days after the date the

appeal ought to have been instituted. The counsel cannot be heard to say that the

application for a copy of proceedings was not required to be made within thirty days.

D Admittedly Rule 8 provides for the application to extend the time prescribed for

anything in the Rules. But that is very different from submitting that the Rules are

not mandatory otherwise there should not have been the reason to have Rule 82

which provides for application to strike out a notice of appeal because an essential

step in the proceedings had not been taken within the prescribed E time. Moreover,

the extension of time under Rule 8 is at the discretion of the Court and upon proof of

sufficient reason for the delay. It is not proforma.

F The same reasons given above apply to an application for leave to appeal because

an order giving leave to appeal is part and parcel of the record of appeal which is

required to be filed within sixty days in order to institute the appeal.

The third and last ground was that no intention to pursue the appeal had been

manifested by the G respondent and that the notice of appeal had been used just to

frustrate execution. Mr Mwaikusa conceded that a notice of appeal, and indeed an

appeal itself, did not operate to stay execution but submitted that the amount

involved was so big that prudence dictated hesitation to execute the decree pending

the finalization of the appeal.

H Mr Kisusi started to enumerate steps taken but that was objected to by Mr

Mwaikusa as being giving evidence. I ruled out that such information as obtainable in

Court records could be taken judicial notice of. On a perusal of the High Court file

civil case No 276/89 between the parties, I have I found that there is an application

for the extension of time of leave to appeal to the Court of Appeal against the ruling

of Mapigano J given on 18 September 1990. This applica-

1993 TLR p21

RAMADHANI JA

tion was lodged on 19 January 1991. However, I am also cognizant of the fact that the

motion to A strike out the notice of appeal had been filed on 22 December 1990 that

is about 28 days before the application for extension of time was filed. Could

knowledge that there was such a motion before the Court prompted the application

for the extension of time? B

Besides that that application for the extension of time is just the first step of a number

of steps. Assuming that it be granted then the present respondent will have to apply

for leave. Assuming that to be granted he will have then to apply for the extension of

time to institute the appeal. This is in fact C a postponement indefinitely of the

execution of the decree.

This is a motion under Rule 82 to strike out the notice of appeal. As I have been

satisfied that the notice of appeal is bad in law I am inclined to grant the motion. I am

equally granting the motion since essential steps in the proceedings hence not been

taken within prescribed time as explained above. D In any case Rule 84(a) provides:

`84. If a party who has lodged a notice of appeal fails to institute an appeal

within the appointed time -

(a) he shall be deemed to have withdrawn his notice of appeal and shall,

unless the Court orders otherwise, be liable to pay the costs of any persons on whom

the notice of appeal was served arising from the failure to E institute the appeal;'

The respondent in this motion is such a party. Even if there was not this motion he

would have been deemed to have withdrawn his notice of appeal. F

Therefore the motion is granted for the reasons given above. The purported notice of

appeal is struck out with costs to the applicant. G

1993 TLR p22

A