Mohamed Iqbal vs Esrom M. Maryogo (Civil Appeal No. 56 of 2010) [2021] TZCA 3554 (12 October 2021)

_) IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM . · (CORAM: LILA. J.A .• KEREFU. J.A .. And KAIRO, l.A.) CIVIL APPEAL NO. 56 OF 2010 MOHAMED IQBAL ••••••••••••••••••••••• I •••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS ESROM M. MARYOGO •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es salaam) (Mihayo. J.) dated the 23 rd day of September, 2009. in Civil case No. 426 of 2002 .........••....... RULING OF THE COURT 14 th September, 15 th October, 2021 KAIRO, JA.: The respondent herein sued the appellant and another who is not a party to this appeal at the High Court of Tanzania at Dar es Salaam. (Mihayo, J.) in Civil Case- No. 426 of 2002 claiming encroachment of his land, (the suit land) and removal of beacons affixed during survey by the defendants. After a full trial, the High Court entered judgment and decree in favour of the respondent but· dismissed the suit against the second defendant on 23 rd day of September, 2009. The appellant was aggrieved 1

and lodged this appeal on 19 th July 2010. Consequent to the foregoing, the respondent's counsel filed a notice of preliminary points of objection on 31 st August, 2021 on the following points of law: -

1. That, the appeal is hopelessly out of time.
2. That, the appeal is incompetent as the notice of appeal was not served on the respondent
3. That, the record of appeal is defective for not containing the documents put in evidence at the hearing. When the appeal was called on for hearing on 14 th September, 2021, Ms. Stella J. Manongi assisted by Mr. Jerome J. Msemwa both learned counsel represented the appellant while Mr. Joseph Kipeche appeared for the respondent. As the practice of the court demands, we had to dispose of the preliminary points of objection first. At the outset, Mr. Kipeche prayed to abandon the third point of objection. However, when the Court engaged him on the rest of the points of objection, he prayed to abandon the second one and remained only with the first point to the effect that the appeal is hopelessly time barred. 2

In his submission addressing that point of objection, Mr. Kipeche pointed out that the decision to be challenged was delivered on 23 rd September, 2009 and the appellant lodged the notice of appeal on 29 th September, 2009. He contended that under Rule 90 (1) of the Tanzania Court of Appeal Rules~ 2009 (the Rules) the appellant is required to file the intended appeal within 60 days from the date of filling of the notice of appeal. He further elaborated that he is very much aware that the appellant applied for requisite documents from the Registrar for appeal purpose and supplied with a certificate of delay excluding the period from 29 th September, 2009 to 20 th May, 2010. However, for the appellant to benefit from the excluded period under Rule· 90 (2) of the Rules, 2009 before amendment by GN. No. 344 of 2019, [currently Rule 90 (3)], the appellant has to serve the respondent with a copy of the letter to the Registrar .applying for the requisite documents in respect of the intended appeal. He went on to state that, the appellant in the present appeal did not comply with the said mandatory requirement, as such he is not allowed to rely on the excluded days stated in the certificate of delay. He referred the Court to the case of Justus Tihairwa v. Chief Executive Officer TTCL, Civil 3

Appeal No. 251 of 2017 (unreported) to bolster his argument. In the circumstances, Mr. Kipeche contended that the appeal was supposed to be lodged on 28 th November, 2011 but it was lodged on 19 th July, 2010 thus hopelessly out of time and ought to be struck out for being time barred. In her reply, Ms. Manongi faulted the course taken by the respondent to raise a preliminary point of law while according to her, the proper forum would have been to file a formal application to strike out the notice of appeal for failure to take essential steps to lodge the intended appeal by the appellant. She went on arguing that, though there is no proof of service to the respondent of the letter applying for requisite documents for appeal purpose the preliminary point of objection raised does not qualify to be so called as it requires evidence to ascertain whether the respondent was served or not, thus not pure point of law as per the settled principle in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696. Ms. Manongi sought reliance in Gasper Peter v. Mtwara Urban Water Authority, Civil Application No. 35 of 2017 wherein the raised preliminary points of objection with regard to failure by the appellant to serve notice of appeal and memorandum of appeal together with a record of appeal was found not to raise pure points of law 4

by the Court as their determination would require evidence be adduced. She urged the Court to take a similar stance. Ms. Manongi went on to argue that, the certificate of delay exempted the period from 29 th September, 2009 to 20 th May, 2010 when the Registrar was preparing the requisite documents for the intended appeal. In this regard, sixty (60) days within which to file the appeal started to count on 20 th May, 2010 and this appeal having been lodged on 19 th July, 2010 is within time. She prayed the Court to so find and reject the point of preliminary objection raised. Ms. Manongi also invited the Court to invoke the overriding principle under section 3A (1) of the Appellate Jurisdiction Act [cap 141 R.E 2019] as amended by the Written Laws (Miscellaneous Amendments) (No.3) Act No. 8 of 2018 (amending Act) (the AJA) and allow the appellant to file supplementary record of appeal for the interest of justice under Rule 96 (7) as the respondent was served, only that the document verifying the service was inadvertently not included in the record of appeal. As a rejoinder, Mr. Kipeche reiterated his submission in chief. He further distinguished the cited case of Gasper Peter (supra) contending 5

that point of law raised in the cited case concerned the service of the notice of appeal, memorandum and record of appeal and not the letter requesting for necessary documents for appeal purpose as in the case at hand. Ultimately Ms. Kipeche prayed the Court to sustain the point of law raised and strike out the appeal for being time barred with costs. Having carefully considered the rival arguments of the parties, the issue for our determination is whether or not the appeal is time barred. The gist of the arguments by Mr. Kipeche hinges on the contention that the respondent was not served with a copy of the letter requesting the Registrar to supply the appellant with requisite documents for appeal purpose. Thus, contravened Rule 90 (1) and (2), [now Rule 90 (1) and (3)] .of the Rules. For reference, we find it pertinent to reproduce the said rule by then: - ''90. -(1) Subject to the provisions of Rule 128, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged with:- {a) - a memorandum of appeal in quintuplicate; {b) - the record of appeal in quintuplicate; {c) - security for the costs of the appeal· save that where an 6

application for a copy of the proceedings in the High Court has been made within thirty days of the date of the 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 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 was served to the Respondent " According to the cited Rule 90 (1) of the Rules, an appeal must be lodged within sixty (60) days from when the notice of appeal was lodged. In the instant appeal, the notice of appeal was lodged on 29 th September, 2009. However, Rule 90 (2) above cited provides for the exclusion of the days the Registrar used to prepare the relevant documents for appeal purpose where the appellant has served the respondent with the letter requesting for the said documents. Short of it, the appellant cannot benefit from the days excluded in the certificate of delay. Such a requirement is mandatory as can be gleaned from the cited provision. 7

Our perusal of the record of appeal reveals at pages 124 - 125 that the copy of the letter at issue was not served on the respondent as correctly submitted by Mr. Kipeche. The pointed-out omission contravened Rule 90 (2) of the Rules by then, thus disentitles the appellant to benefit from the excluded period certified in the certificate of delay under Rule 90 (2) of the Rules by then. See Justus Tihairwa (supra) and Elly Mwambungu and Another v. Tanzania Builders Agency and 2 Others, Civil Appeal No. 214 of 2020 (unreported). · According to Ms. Manongi the respondent was , to lodge a formal application seeking the court to strike out the notice of appeal for failure by the appellant to take essential steps to lodge the intended appeal. However, we do not subscribe to the suggestion with much respect. It should be noted that, what is out of time is the appeal and not the notice of appeal. Besides, the proper cause to be taken by the respondent in the circumstances has been times and again explained by the Court in its various decisions including the above cited cases of Justus Tihairwa (supra) and Elly Mwambungu and Another (supra) which is to raise a preliminary point of law seeking to struck out the lodged appeal and not notice of appeal. Besides, the learned counsel has not cited any law to 8

support her contention. We thus find the argument a misconception, with much respect. Ms. Manongi has also argued that the preliminary point of objection raised is not pure point of law as evidence is required to ascertain it, to which we do not subscribe to the contention, either. The document (letter) speaks all for itself. Just looking on it, one will note that there is neither signature nor stamp to verify its receipt by the person to whom it was intended to be copied to (Msuya & Co. Advocates). As such, the letter itself suffices and no need of an extra evidence is required. But further to that Ms. Manongi throughout her submission did not dispute that the said letter in the record of appeal even suggests that it was ever received by the said Msuya & Co. Advocates. That is the reason she prayed to file a supplementary affidavit. As such, we do not see why the need to adduce evidence would arise. That apart, the point of law raised revolves on limitation which is among points of law that affects jurisdiction of the Court if exists. Thus, in our view the point of law raised complies with the principle enunciated in Mukisa Biscuits Manufacturing Co. Ltd (supra). We further found the cited case by Ms. Manongi of Gasper Peter (supra) distinguishable as the preliminary objection raised therein concerns 9

failure to serve the notice of appeal, memorandum of appeal and the record of appeal, and not the non-serving of a letter applying for the requisite documents for appeal purpose as is the situation at hand. Ms. Manongi has also invited the Court to invoke the overriding objective principle and order the filing of supplementary record of appeal under Rule 96 (7) of the Rules. The question to be addressed by the Court in this aspect is whether the pointed-out anomaly can be remedied by invoking the said principle embodied in the provisions of section 3A (1) of the AJA which stipulates as follows: - "The overriding objective of this Act shall be to facilitate the just, expeditious, propionate and affordable resolution of all matters general by this Act." However, despite the stated intention, the amendments are not designed to blindly disregard the rules of procedure that are couched in mandatory terms and this was categorically stated in the Bill to the amending Act as follows: - '''Sections 3A and 38 of the proposed amendments which introduce the principle of objectives of attaining substantive Justice are intended to give 10

--------··- -- statutory effect to Article 107A (2) {e) of the Constitution which requires the cou~ when applying rules of procedure that are couched in mandatory terms to actively take into account the wider interests of substantive Justice to facilitate the Just, expeditious, proportionate and affordable resolution of the civil disputes. · The proposed amendments are not designed to blindly disregard the rules of' procedure that are couched in mandatory terms, but are meant to task the Court of Appeal before striking out a matter on ground of procedural irregularity, to weigh the wider interests of substantive justice and decide whether there is an alternative available instead of striking out the matter before the Court of Appeal. " (Emphasis supplied) The Court has further emphasized the balded expression in the case of Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited and 4 Others, Civil Appeal No. 66 of 2017 (unreported) wherein it echoed the objects and reasons stated as follows: - ''Regarding the overriding objective principle/ we are of the considered view that the same cannot be 11

applied blindly against the mandatory provisions of foundation of the case. " · As earlier stated, the contravened provisions of Rule 90 (1) (3) of the Rules, are mandatory rule of procedure and their compliance cannot be dispensed with as seems to be suggested by Ms. Manongi. To accept such an invitation in pretext of applying the overriding principle would cause inconsistence and uncertainty in the administration of justice which we are not ready to bless. The Court in Union of Tanzania Press Clubs and Another v. The A. G. of the United Republic of Tanzania, Civil Appeal No. 89 of 2018 (unreported) borrowed a leaf from a Kenyan case of Ramji Devji Vekaria v. Joseph Oyula, Eldoret Civil Appeal (application No. 154 of 2010 wherein the Court of Appeal of Kenya stated as follows when it declined the invitation by the appellant to invoke the Oxygen principle to serve the appeal which was time barred: - "This is an omission that goes to the root of the Rules i.e. whether a party can file an appeal out of time and without leave of the court To invoke the provision of Sections 3A and 38 would result in a serious precedent being set which will mean utter confusion in the court corridors as there will no longer be any reasons for following the rules of the 12

Court, even when they have been violated with impunity. Sections 3A and 38 were not meant for that" In the same vein on our part, we decline the invitation extended by Ms. Manongi to invoke the oxygen principle in this appeal. On the prayer by Ms. Manongi to be allowed to file supplementary record of appeal under Rule 96 (7) of the Rules, suffice to state that we cannot grant the prayers when the preliminary objection had already been raised, otherwise it will amount to pre-emptying it which legally is not allowed. We are fortified in this stance in the case of Method Kimomogoro v. Board of Trustees Tanapa, Civil Application No. 1 of 2005 (unreported) wherein the Court expressed its firm position in this way: - "This Court has said in a number of times that it will not tolerate the practice of an advocate trying to pre-empty a preliminary objection either by raising another objection or trying to rectify the error complained of. (emphasis added) (unreported)". See also Sarbjit Singh Bharya and Another v. NIC Bank Tanzania Ltd and Another, Civil Appeal No. 94 of 2017 (unreported). 13

• We instructively insist that, once a notice of preliminary objection is lodged, the time to rectify the deficiency complained of lapses. Further to that, the enabling provision under which the order to file supplementary record of appeal is sought by the appellant, that is Rule 96 (7) in our view concerns documents which have been omitted in the record of appeal as listed in Rule 96 (1) of the Rules. However, in the case at hand, the letter by the appellant requesting to be supplied with the requisite documents for appeal purposes is in the record of appeal but it was not served to the respondent. Thus, we think the position is different from the present one. On account of what we have discussed above, we agree with Mr. Kipeche that the applicant was required to file the appeal within sixty days ·from the date the notice was lodged following his failure to serve the respondent with a copy of the letter to the Registrar applying for the decree, judgment, proceedings and related documents in respect of the intended appeal. As a result, he cannot rely on the excluded days in the certificate of delay. In this regard, the appeal was hopelessly out of time when it was filed on 19 th July 2010. We thus find the preliminary point of 14

objection with merit and sustain it. Consequently, the appeal is hereby struck out with costs for being filed out of time. It is so ordered. DATED at DAR ES SALAAM this 1th day of October, 2021. S. A. LILA JUSTICE OF APPEAL R.J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL The ruling delivered this 15 th day of October, 2021 in the presence of Ms. Yusta Kibuga, learned counsel for the appellant and Mr. Joseph 15