MRS KAMIZ ABDULLAH M.D. KERMAL v THE REGISTRAR OF BUILDINGS AND MISS HAWA BAYONA 1988 TLR 199 (CA)

 

MRS KAMIZ ABDULLAH M.D. KERMAL v THE REGISTRAR OF BUILDINGS AND MISS HAWA BAYONA 1988 TLR 199 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Omar JJA

11 November, 1988 F

Flynote

Civil Practice and Procedure - Appeals - Notice of Appeal lodged in time - Period within which appeal may be instituted - Court of Appeal Rules, Rule 83(1).

Civil Practice and Procedure - Appeals - Notice of Appeal lodged in time - Delay in instituting appeal - Time excluded in computing period within which appeal may be lodged - Prerequisite for obtaining exclusion of time - Court of Appeal Rules, Rule 83(1)(2).

Civil Practice and Procedure - Appeals - Notice of Appeal lodged in time - Leave to appeal and certificate on point of law required - Failure to institute appeal within prescribed period, I failure due to delay in obtaining leave and certificate - Whether curable Course of action open to party likely to be affected by the delay - Court of Appeal Rules, Rule 8.

Civil Practice and Procedure - Appeals - Notice of Appeal lodged in time -Failure to institute appeal within prescribed period - Effect - Court of Appeal Rules, Rule 84.

-Headnote

The appellant was aggrieved by an ex parte order of the High Court of Tanzania at Dar es Salaam dated 10/6/88 granting stay of execution of a decree of the Regional Housing Tribunal for Dar es Salaam Region. The appellant sought to have that order set aside in an application to that effect filed in the High Court. The said application was C not pursued to its logical conclusion. Subsequently, the appellant lodged a notice of appeal against the ex parte order of the High Court and an application for a certificate on points of law. The High Court granted leave and certificate on a number of points of law.

About three months after the appellant had lodged her notice of appeal she instituted the present appeal by lodging the necessary documents. When the appeal came up for hearing, a preliminary point of law arose to the effect that the appeal was incompetent E as the same was not instituted within the 60 days period prescribed under the provisions of Rule 83 of the Tanzania Court of Appeal Rules, 1979. It was argued by Mr. Kesaria, learned advocate for the appellant, that the appeal could not be instituted before the High Court granted leave and certificate on 13/9/81.

Held: (i) An appeal to the Court of Appeal must be instituted within 60 days of the date when the notice of appeal was lodged;

(ii) the time required for the preparation and delivery of copy of proceedings in the High Court shall be excluded in computing the time within which an appeal to the Court of Appeal is to be instituted if an application for that copy has been made within 30 days of the decision to appeal; such time has certified by the registrar of the High Court as having been required for the preparation and delivery of the copy of proceedings and the application for H that copy was in writing and a copy thereof was sent to the other party;

(iii) where delay in instituting appeal is caused by good reasons, other than the time taken in preparing the I record of appeal, a prudent party to the proceedings may safeguard its position by applying for extension of the period prescribed for the doing of any act under Rule 8 of the Tanzania Court of Appeal Rules. It was thus open for the appellant in this case, particularly at the time when she was applying for leave and certificate of the High A Court, to also apply to this Court to extend or enlarge the period prescribed for instituting the appeal;

(iv) under Rule 8 of the Court of Appeal Rules failure to institute an appeal within the prescribed 60 days B renders the appeal incompetent and furthermore, the appellant is deemed to have withdrawn his appeal.

Case Information

Appeal dismissed.

Cases referred to:

1. Enock Chacha v Mwanza Fishnet Manufacturers Ltd. Civil appeal no. 10 of 1987.

2. Wile Mkandala v Phillip Chila Civil appeal no. 13 of 1984.

Kesaria, for the appellant.

[zJDz]Judgment

Nyalali, C.J., Makame and Omar, JJ.A.: When this appeal came up for hearing on the 31st October, 1988, a preliminary matter of law arose concerning the competence of the appeal. The matter concerns non-compliance by the appellant with the provisions of Rule 83 of the Tanzania Court of Appeal Rules 1979, which require an appeal to be instituted by filing the record of appeal within 60 days from the date of the notice of appeal. That Rule states: 83 (1) subject to provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within 60 days F of the date when the notice of appeal was lodged:

(a) a memorandum of appeal, in quintuplicate;

(b) the record of appeal, the quintuplicate;

(c) the prescribed fee; and

(d) security for the costs of the appeal, save that where an application for a copy of the proceedings in the High Court has been made within 30 days of the H decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the Registrar of the High Court as having been required for I the preparation and delivery of that copy to the appellant.

(2) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and a copy of it was sent to the respondent.

It is apparent from the record that the order against which this appeal is brought was that made by the High Court, B Mnzavas, JK on the 10th June 1988 granting stay of execution of a decree of the Regional Housing Tribunal for Dar es Salaam Region.

That order of the High Court was granted ex-parte. The appellant was aggrieved by the decision of the High Court and he apparently sought to have it set aside in an application to that effect filed in the High Court on the 15th June, 1988. The application was supported by an affidavit of the appellant in this case. It would seem from the record that this application was not pursued to its logical conclusion. On the 22nd June 1988, D a notice of appeal to this court was filed by the appellant against that order of the High Court. On the same day of 22nd June 1988, the appellant applied in the High Court for leave to appeal to this court, and for a certificate on points of law. On the 13th September 1988, the High Court, Mapigano, J. granted leave and certified a number of E points of law for decision by this court. 16 days later, that is on 29th September 1988, the appellant instituted this appeal by lodging in the appropriate registry the documents stated under Rule 83.

It is evident from the record that about three months had expired from the date of notice of appeal to the date when F the appellant instituted the appeal by lodging the necessary documents in the appropriate registry. Mr. Kesaria, learned advocate for the appellant has argued to the effect that the appeal could not be instituted before the High Court granted leave and the certificate on the 13th September 1988. We appreciated the logic of this argument but with due respect to learned counsel, this logic must be applied within the context of the law. The law provides not only for the period within which an appeal must be instituted, but provides also for situations where there may be good cause for delay in instituting the appeal within the prescribed period of 60 days. For instance, where delay is due to time taken in preparing the record of appeal, such time certified by the Registrar of the High Court will be excluded in computing the prescribed period, provided of course, a copy of the proceedings is applied for in writing I within 30 days of the judgment or order appealed against, and the application is copied to the other party. Furthermore, where the delay in instituting the appeal is caused by other good reasons, a prudent party to the proceedings may safeguard its position by applying for extension of any period prescribed for the doing of any act A under Rule 8 of the Tanzania Court of Appeal Rules. It was thus open for the appellant in this case particularly at the time when applying for leave and the certificate of the High Court, also to apply to this court to extend or enlarge the period prescribed under Rule 83. This the appellant failed to do, and he has only himself or his advocate to blame B for the consequences.

What then are the legal consequences for the failure to institute the appeal within the period prescribed under Rule 83? This court has consistently held that such failure renders the appeal incompetent. Under the provisions of Rule 84, the appellant "shall be deemed to have withdrawn his notice of appeal". (See the case of Enock Chacha v Mwanza Fishnet Manufacturers Ltd. Civil Appeal No. 10 of 1987 (decided by this court but not yet reported. Also the case of Wile Mkandala v Phillip Chilla, Civil Appeal No. 13 of 1984 (decided by this court but not yet reported).

In the final analysis therefore, we find the appeal incompetent, and the appellant is deemed to have withdrawn his notice of appeal, with cost to the respondent. We order accordingly.

Order accordingly.

1988 TLR p203

F