SALIM SUNDERJI AND CAPITAL DEVELOPMENT AUTHORITY v SADRUDIN SHARIFF JAMAL 1993 TLR 224 (CA)

 

SALIM SUNDERJI AND CAPITAL DEVELOPMENT AUTHORITY v SADRUDIN SHARIFF JAMAL 1993 TLR 224 (CA)

Court Court of Appeal of Tanzania - Dodoma

Judge Mnzavas JA

B CIVIL APPLICATION NO. 10 OF 1993

25 October, 1993

C (From the Decision of the High Court of Tanzania at Dodoma, Maina, J.)

Flynote

Court of Appeal Rules - Notice of Appeal - Service of Notice of Appeal - Proof of

service of notice on the Respondent - Rule 77(1) of the Court of Appeal Rules 1979.

D Court of Appeal Rules - Notice of Appeal and letter of application for copy of

High Court proceedings - Non-service of Notice of Appeal and copy of application

letter: consequences thereof - Rules 77(1) and 83(2) of the Court of Appeal Rules

1979.

-Headnote

E The applicants sought an order striking out a Notice of Appeal filed by the

respondent. To support their application they said that the respondent did not serve

them with a copy of the Notice of Appeal as required by r. 77(1) of the Court of

Appeal Rules 1979 until four months after filing the Notice, and also that the

respondent did not serve them with a copy of the letter applying for a copy of the F

proceedings in the High Court in terms of r. 83(2) of the Rules. The respondent

argued that the Notice of Appeal was served in time but forgot to ask the applicants to

sign to acknowledge receipt of the Notice. He also argued that copies of the letter

applying for a copy of the High Court proceedings G were sent to the applicants; but

there were no signatures acknowledging receipt of copies of the said letter.

Held: (i) The argument that an advocate would, by an oversight, forget to ask

the person served with a Notice of Appeal to sign a copy of the document in

acknowledgement of receipt is not convincing to the court;

H (ii) Bare assertion by the respondent that he served the applicants with

copies of the letter of application for a copy of the proceedings in the High Court

without proof of such service cannot be believed by the Court.

(iii) Non-compliance with rr. 77(1) and 83(2) of the Court of Appeal Rules

1979 nullifies a Notice of Appeal or an appeal.

Case Information

I Application allowed; Notice of Appeal struck out

1993 TLR p225

Cases referred to: A

1. D.P. Valambhia v. Transport Equipment Ltd., [1992] TLR 246.

2. Mohamed Raza Azizi & Another v. Akberal Habib Hassamal, CAT -

Civil Appeal No. 21 of 1990 (unreported).

3. Grace Frank Ngowi v. Dr. Frank Israel Ngowi, [1984] TLR 120.

Mbezi for the applicants. B

M.N. Marando/Mpoki/Rutagatina for the respondent.

[zJDz]Judgment

Mnzavas, J.A.: In this application the applicants are seeking an order by this Court

that the Notice of Appeal filed by the respondent be struck out because some essential

step in the proceedings has C not been taken and/or has not been taken within the

prescribed time as required by r 77(1) of the Court of Appeal Rules 1979.

Secondly Mr Mbezi, learned Counsel for the applicants, submitted that the

respondent did not serve the applicants with a copy for the letter he wrote to the

Registrar seeking to be supplied with a copy D of the proceedings of the High Court

as stipulated under r 83(2) of the Rules.

Elaborating on the argument that the provisions of r 77(1) of the Court of Appeal

Rules were not complied with the learned Counsel told the Court that the respondent

filed his Notice of Appeal in E Court on 10 June 1992 and that the Notice of Appeal

was served on the applicants on 2 October 1992 and that the Notice of Appeal was

served on the applicants on 2 October 1992, about four months from the time it was

filed in Court on 10 June 1992. It was submitted that this was contrary to F the

provisions of r 77(1) which required the respondent to serve the applicants with the

Notice of F Appeal within seven days after the lodging of notice in Court.

As for the provisions of r 83(2) of the Court of Appeal Rules Mr Mbezi argued that the

advocate, Mr Marando, who represented the respondent, did not send a copy of the

letter he wrote to the Registrar G seeking for copy of proceedings to the applications;

and that this omission went counter to the provisions of r 83(2) of the Rules.

The respondent in his counter affidavit argued that he in fact served the respondents

with copy of Notice of Appeal but he inadvertently forgot to ask them to affix their

signatures on the copies of the H Notice of Appeal. The applicants filed a counter

affidavit denying that they were served with copy of the notice.

On the allegation that the respondent did not send to the applicants copy of the letter

he wrote to the Registrar seeking for a copy of the proceedings in the High Court the

respondent swore a counter I affidavit to the effect that his advocate, Mr Marando,

sent him

1993 TLR p226

MNZAVAS JA

A many copies of the letter he wrote to the Registrar seeking to be supplied with

copy of proceedings in the High Court and that he served the applicants with copies

of the letter. Mr Mbezi, learned Counsel for the applicants countered in his affidavit

denying `having been served with any copy of Mr Marando's letter as alleged in para

4' of the respondent's counter affidavit and `put Mr B Jamal, the respondent in strict

proof thereof'.

Mr Rutagatina who represented Mr Marando for the respondent did not have much

to say regarding the applicant's assertion that the provisions of r 77(1) and r 83(2) of

the Court of Appeal Rules had C not been complied with by the respondent. In

concluding his submission the learned Counsel said: `My Lord if this Court finds that

the two essential steps were not taken I pray that the respondent be entitled to reliefs

as they stand by the decision of the High Court. We also pray that we be excused

from costs.'

D After hearing both parties I am satisfied that there is constraining force in this

application. If the respondent's argument as deposed by Mr Mpoki who at one time

acted on behalf of Mr Marando for the respondent is to be believed one would have

expected him to approach the advocates for the applicants, after he had discovered

that they had not signed the notice in acknowledgement of E receipt and ask them

to sign them. This, he did not do. Secondly I am not convinced by the argument that

an advocate would by an oversight forget to ask the person served with a Notice of

Appeal with any other important legal documents of similar nature to sign copy of the

document in F acknowledgement of receipt.

On the evidence I agree with the learned Counsel for the applicants that the

mandatory provisions of r 77(1) of the Court of Appeal Rules were not complied with.

G Coming to the argument that the respondent did not send copy of his application

to the Registrar for copy of proceedings in the High Court to the applicants it is amply

clear from the letter Ref MNM/SHARIFF dated 24 September 1992 written by Mr

Marando, Counsel for the respondent, to the Registrar asking to be supplied with a

copy of proceedings that it was only copied to the respondent, H Shariff Jamal. In

the copy sent to Mr Shariff Jamal Mr Marando says to him - `Please follow up'.

The letter does not show that it was copied to the applicants. Nor does it show that

Mr Jamal was asked to bring to the notice of applicants the contents of the letter.

From the contents of the letter the I words - `Please follow up' merely urged Mr

Jamal to follow up the application in the High Court.

1993 TLR p227

MNZAVAS JA

Mr Jamal's mere deposition in his counter-affidavit that he received many copies and

that he served A some of them to the advocates of the applicants has been denied by

the learned Counsels.

This Court will not be entitled to believe the bare assertion by the respondent that he

received many copies of the application to the Registrar and that he served the

applicants with copies of the B application without proof of such service. There is a

long and unbroken chain of authorities by this Court that non-compliance with the

provisions of r 77(1) and r 83(2) of the Court of Appeal Rules nullifies a Notice of

Appeal or an appeal. See the decisions of this Court in D P Valambhia v Transport

Equipment Ltd (1), Mohamed Raza Azizi and Another v Akberal Habib Hassanal (2)

and C Grace Frank Ngowi v Dr Fank Israel Ngowi (3) to mention but only a few of

the decisions.

In the event the Notice of Appeal is clearly incompetent as some essential step has not

been taken D and/or has not been taken within the prescribed time. The Notice of

Appeal is accordingly struck out.

As for Mr Rugagatina's prayer that this Court makes an order that the respondent is

entitled to the reliefs as found by the High Court it would be improper for this Court

to deal with a matter which is not properly before it.

Mr Rutagatina's prayer that his client be excused from paying costs cannot, with

respect, be E entertained. The law is that the party who wins in a suit is entitled to

have his costs unless there are exceptional circumstances to the contrary. There are

no such exceptional circumstances in this case. F

1993 TLR p228

A