D.T. DOBIE & COMPANY (TANZANIA) LTD. v N.B. MWATEBELE 1992 TLR 152 (CA)

 

D.T. DOBIE & COMPANY (TANZANIA) LTD. v N.B. MWATEBELE 1992 TLR 152 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Kisanga JJA, Ramadhani JJA, Mnzavas JJA

D

19 June 1992

Flynote

Court of Appeal Rules - Limitation for filing appeals - When does time start to run -

At the E time of receiving proceedings or when certificate of assurance of

completeness of record of proceedings is given

-Headnote

After being dissatisfied by the decision of the High Court, the advocate for the F

appellant indicated his intention to appeal and received the record of the appeal on

11.11.91. He thought however that the record was incomplete and wrote to the

registrar requesting to be supplied with the missing part(s). The registrar wrote back

on 13.12.91 saying that the record was complete and, on request, he issued a

certificate under rule 83(1) of the Court of Appeal Rules to that effect. The appellant's

advocate G filed his appeal on 17.1.92. At the hearing of the appeal the advocate for

the respondent filed a notice of motion raising a preliminary objection that the appeal

was time barred claiming that the 60 days time limit, counted from 11.11.91, ended

on 12/1/92. H

Held: (i) Where there are no grounds for thinking that a certificate of assurance of

completeness of record of proceedings is incorrect or improper court would not

interfere with it;

I (ii) Where a party, on reasonable grounds, writes to the registrar asking for

missing part(s) of the proceedings, the limitation

1992 TLR p153

KISANGA JJA, RAMADHANI JJA, MNZAVAS JJA

period does not begin to run against such a party until he receives either the part of A

proceedings asked for or an assurance that the proceedings sent to him were

complete.

Case Information

The preliminary objection fails.

Uzanda, for the Appellant B

Raithatha, for the Respondent

[zJDz]Judgment

Kisanga, Ramadhani and Mnzavas, JJ.A.: When this appeal was due hearing, Mr. M.

Raithatha, learned counsel for the respondent, filed a notice of motion raising a C

preliminary objection that the appeal is time barred.

The background to the matter is quite short. Mr. Uzanda, learned advocate for the

appellant, had written to the Registrar, High Court, for the supply of a typed copy of

D proceedings for the purposes of preparing the record of appeal in this case, and the

same was duly supplied on 11.11.91. He noticed, however that the record was

incomplete and therefore he addressed another letter to the Registrar requesting to be

supplied with the missing part or parts. The Registrar wrote back on 13.12.91 saying

E that what he had supplied was the complete set and that there was no part missing.

This was followed by requests to the Registrar for a certificate under rule 83(1) of the

Court of Appeal Rules which certificate was eventually supplied to the learned

counsel on 8.1.92. The relevant part of the certificate reads: F

This is to certify that a period from 3rd January, 1991 when M/S. Donaldson

and Wood and Co. Advocates for the Appellant applied for copies of certified

proceedings to 13th December, 1991 when the same were supplied to the Appellant's

Advocate is to be G excluded as such days were required for the preparation and

delivery of the proceedings to the said Advocate.

Relying on this certificate, Mr. Uzanda filed the appeal on 17.1.92. H

Mr. Raithatha's contention as we understand it is to the effect that the Registrar's

certificate is misleading because it talks of supplying a copy of proceedings to counsel

for the appellant on 13.12.91 when in fact those proceedings were supplied on

11.11.91. Emphasizing that no proceedings were in fact supplied on 13.12.91, I

1992 TLR p154

KISANGA JJA, RAMADHANI JJA, MNZAVAS JJA

he contended that the limitation period ought to run from 11.11.91 when the A

proceedings were in fact supplied and not from 13.12.91 as the Registrar's certificate

purports to say, because no proceedings were supplied on that day. Thus, Mr.

Raithatha went on, the appellant ought to have filed the appeal within 60 days of his

receipt of the copy of proceedings on 11.11.91, which gave him up to 12.1.92. The B

appellant, however filed the appeal only on 17.1.92, which made him out of time by 5

days.

Resisting the objection, Mr. Uzanda argued that the appeal was in time because it was

within the time limit set out in the Registrar's certificate. He submitted further that

the C Registrar was empowered by the Court of Appeal Rules to issue the certificate

and that it was not competent to question or go behind such certificate.

We have to point out at once that the Registrar's certificate is not, and cannot be,

beyond question. It is true that the Registrar has power to issue the certificate under

D the proviso to rule 83(1) of the Court of Appeal Rules. But we are quite clear in our

minds that if there are gounds for thinking that the certificate is incorrect or

otherwise improper, that would justify interfering with it. However, we are satisfied

that there are E no ground for interfering with the certificate in this case.

As stated earlier, when Mr. Uzanda received the copy of proceedings on 11.11.91 and

noticed that some part was missing, he wrote to the Registrar to request for the

missing part, but the Registrar replied on 13.12.91 saying that what he had supplied

was the F complete set, and that there was no part missing. A glance through the

record of appeal confirms Mr. Uzanda's claim that the proceedings sent to him were

incomplete even though the Registrar's assurance is to the contrary. For example, Mr.

Uzanda had asked to be supplied with the first part of the proceedings which, both

counsel who G also represented the parties at the trial are agreed, related to the

giving of the ex-parte judgment, but that part of the proceedings is not reflected on

the record of appeal. Mr. Raithatha argued that in any case the ex-parte judgment was

not essential for the preparation of the record of appeal. For, the ex-parte judgment

was set aside, and H the suit proceeded to hearing leading to this judgment now

being appealed against. So that, counsel argued, the non-inclusion of it in the

proceedings by the Registrar could not constitute a valid ground for Mr. Uzanda

writing to request for the supply of it and I thereby prevent the limitation period

from starting to run against him.

1992 TLR p155

KISANGA JJA, RAMADHANI JJA, MNZAVAS JJA

We have carefully considered this submission but we could not acceed to it. Mr. A

Uzanda had the conduct of the case. As such he was entitled to require to be supplied

with the material which he considered necessary for the preparation of the record of

appeal. Perhaps one can say with some justification that the ex-parte judgment was

not necessary for the preparation of the record of appeal after one has studied the B

proceedings closely and after deciding what grounds of appeal one was going to raise.

But it is less certain whether one could do so only after the initial perusal of the

proceedings. Mr. Uzanda wrote to request for the missing part of the proceedings on

13.11.91, that is, only about a day or two after receiving the set of proceedings. It is C

obvious that he wrote the request only after the initial and quick perusal of the

proceedings. It could be doubted whether at that stage he could say with certainty

that the ex-parte judgment would not be necessary for the preparation on the record

of appeal. In this respect it is pertinent to note Mr. Uzanda's remarks at the hearing of

D this objection that even after receiving the Registrar's reply that the set of

proceedings sent to him was complete, when in fact it was not, he was still of the

view that he needed the missing part but thought that it was pointless to persist on his

request because it was then evident that it would yield no results. Consequently he

decided not to write E further on that aspect of the matter and instead proceeded to

prepare the record on the incomplete set of proceedings.

We are therefore satisfied that Mr. Uzanda had reason to write to the Registrar to ask

for the missing part of the proceedings, and the question now is: What effect, if any,

F did this have on the limitation period? Mr. Raithatha takes the view that since the

Registrar replied saying that the set of proceedings sent was complete, then the period

of limitation started to run as from 11.11.91 i.e. the very day the said proceedings

were sent. For, counsel went on, the Registrar did not send anything on 13.12.91

when he G wrote to say that the set of proceedings was complete. In this connection

Mr. Raithatha pointed at the Registrar's certificate as being erroneous for citing

13.12.91 as the day when the proceedings were supplied to counsel for the appellant

because, he stressed, H nothing was sent on that day. Although this argument has

some force, we are of the view that it cannot succeed. We think that where, as in this

case, a party on reasonable grounds writes to the Registrar asking for missing part or

parts of the proceedings, the period of limitation does not begin to run against such

party until he receives either the I part of proceedings asked for or an assurances that

the proceedings

1992 TLR p156

KISANGA JJA, RAMADHANI JJA, MNZAVAS JJA

sent to him were complete and there is nothing further to be supplied. The question

A whether the missing part was necessary for the preparation of the record of appeal

is no doubt relevant but the decision of the Court on that issue must depend on the

facts and circumstances of each case.

As has been shown, Mr. Uzanda in this case did not receive the missing part of the B

proceedings which he had asked for. Rather he received the assurance, which was

obviously erroneous, that the set of proceedings sent to him was complete and that

there was nothing further to be communicated to him. That assurance was sent to

him on 13.12.91. In our view that was the date on which the period of limitation

began to run C against him. Under rule 83(1) of the Court of Appeal Rules he was

required to lodge the appeal within 60 days from that date. He was well within that

period when he did lodge the appeal on 17.1.92.

Admittedly the Registrar's certificate is misleading for referring to 13.12.91 as the D

date on which the copy of proceedings was sent to the appellants advocate. For, as

Mr. Raithatha rightly pointed out, no proceedings were sent on that day. We think,

however, that this was a mere slip of the pen, and that the Registrar must have meant

to refer to that date as being the date on which he informed the appellant's counsel

that the set of E proceedings sent to him earlier on was complete. At any rate, we are

quite satisfied that the error was harmless and did not affect the validity of the

certificate, and that Mr. Uzanda was perfectly entitled to rely on it, as he did, in

lodging the appeal. F

In the result the preliminary objection fails and it is accordingly dismissed with costs.

G Appeal dismissed.

1992 TLR p157

A