Geofrey Kabaka vs Farida Adam (administratix of The Estate of The Late Hamza Adam) (Civil Appeal No. 28 of 2019) [2019] TZCA 407 (30 October 2019)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MWARIJA. J. A„ KOROSSO, J. A. And KITUSI. 3. A.^ CIVIL APPEAL NO. 28 OF 2019 GEOFREY KABAKA .................. ......................................... ............ APPELLANT VERSUS FARIDA HAMZA (Administratrix of the Estate of the late Hamza Adam ) ............ ...............................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mwanza District Registry) (Maigef_J.) dated the 14th day of June, 2017 in Land Appeal No. 155 of 2016 RULING OF THE COURT 22n d & 30th October, 2019 KITUSI. J.A.: On 14th June, 2017 the High Court (Maige, J.) delivered judgment in Land Appeal No. 155 of 2016 at Mwanza District Registry. The appellant was aggrieved by the judgment and he duly lodged a Notice of Appeal subsequent to which a Memorandum of Appeal was filed. This appeal was set for hearing today and the parties entered appearance in person, without legal representation.

However, before hearing of the appeal could commence, our attention was drawn to a Notice of Preliminary Objection which the respondent had earlier filed in terms of Rule 107 (1) of the Tanzania Court of Appeal Rules, 2009 as amended by Government Notice No. 362 of 2017, hereafter the Rules. We find it convenient to reproduce the relevant part of the said Notice:-

1. That the appellant Appeal is out o f time in lodging his record of appeal and memorandum o f appeal under Rule 90 (1) o f the Tanzania Court o f Appeal Rules, 2009.
2. That as the record o f Appeal does include a particular not proper exhibits "P2" on page 14 and on page 105 ' o f the record of Appeal which are differ in hand writing render the record o f Appeal incompetent contrary to Rule 96 (2) o f the Tanzania Court o f Appeal Rules, 2009.
3. That as the record o f Appeal does not contain the extracted order in following cases; i. Land Appeal No. 19 o f 2016 But Ruling contained in page 426 ii. Misc. Land Case Application No. 20 o f 2016

But Ruling contained on page 442. H i. Misc. Land Case Application No. 63 o f 2013 But Ruling contained on page 626. iv. HC Civil Review No. 5 o f 2017 But Ruling contained on page 670. v. As well Appellant omitted proceedings and Extract order related in HC. Civil Reference No. 2 o f 2018 But Ruling contained on pages 726 up to 735. Further, the respondent filed written submissions in support of the points of Preliminary Objection. These, the respondent adopted, with nothing to add. In essence the gist of the first point of objection is that the appeal is out of time because it was filed beyond the statutory time of 60 days reckoned from the date of filing of the Notice of Appeal as per Rule 90 (1) of the Rules. She submitted further that the appellant cannot benefit from exclusion of the time used for preparation of documents because his letter requesting for those documents was not copied to her as required by sub- rule (2) of Rule 90 of the Rules. 3

The respondent argued the remaining points jointly, and we think that was the right course considering that they all relate to incompleteness of the record of appeal. The alleged incompleteness relates to non inclusion of Exhibit P2 and drawn orders in the following matters; Land Appeal No. 19 of 2016, Misc. Land Case Application No. 20 of 2016, Misc. Land Case Application No. 63 of 2013 and High Court Civil Review No. 5 of 2017. Lastly, she submitted that the appellant has omitted to include in the record of appeal the proceedings and extracted order in High Court Civil Reference No. 2 of 2018. It is the respondent's submission that the appellant has committed a grave error by not including the mentioned documents in the record of appeal because that offends Rule 96 (2) of the Rules. She moved us to strike out the appeal for being incompetent and, in support, she cited the cases of Tanzania Breweries Limited vs Yonathan Kalace, Civil Appeal No. 52 of 2014; and Daudi Kulwa vs Marco Petro, Peter Ndila and Leah Mashili, Civil Appeal No. 220 of 2017 (both unreported). The appellant fiercely fought back. As regards the first point which relates to time, he submitted that there are two categories of appeals, that

is, those that do not require leave and those that require leave. He then proceeded to argue that the contention that an appeal must be lodged within 60 days of the Notice of Appeal is only relevant to appeals which do not require leave. However, appeals which lie with leave are to be filled within 60 days of the order granting leave, he submitted. He pointed out that leave was granted to him on 30th November, 2018, and he filed this appeal on 7th December, 2018, within 7 days of the order granting that leave. When prompted by the Court, the appellant stated that he did not obtain a certificate of delay from the Registrar of the High Court because, he insisted, the requirement to file an appeal within 60 days does not apply to appeals that lie with leave. On the alleged incomplete record, the appellant demonstrated how he requested for the documents from the Registrar but for some reason he was not issued with them. Therefore, the appellant's response in this respect is that he is not to blame for the missing documents, but the High Court which is responsible for supplying copies to him, is. The respondent did not have anything to submit in rejoinder. 5

After hearing the competing submissions, we are now set to determine the points of preliminary objection, beginning with the first. The respondent contends that the appeal was filed beyond 60 days of filing the Notice of Appeal and that the appellant does not qualify to benefit from exclusion of days under Rule 90 (2), because his letter requesting for the requisite documents was not copied and served to her. On the other hand, the appellant maintains that his appeal, being one which requires leave, is to be filed within sixty (60) days of the order granting leave. We think we should first appreciate what the law on the matter provides. It is Rule 90 of the Rules, whose marginal note reads; Institution o f appeals. It provides: - "90 (1) Subject to the provisions o f rule 128\ an appeal shall be instituted by lodging in the appropriate registry, within sixty days o f the date when the notice o f appeal was lodged with- (a) a memorandum o f appeal in quintuplicate; (b) the record o f appeal in quintuplicate; (c) security for the costs o f the appeal

save that where an application for a copy o f the proceedings in the High Court has been made within thirty days o f the date o f the decision against which it is desired to appeal\ there shall, in computing the time within the appeal is to be instituted be excluded such time as may be certified by the Registrar o f the High Court as having been required for the preparation and delivery o f 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 o f was in writing and a copy o f it was served on the Respondent". The letter of the above governing provision is unambiguous, in our view, and it leaves no room for the appellant's suggestion that segregates appeals into two categories. There are only two instances of reckoning the time for lodging civil appeals according to Rule 90 of the Rules. These are, either from the date of the Notice of Appeal or from the last date appearing in the Registrar's certificate of delay. In the instant appeal, the Notice of Appeal was lodged on 28/6/2017 which means that the appeal ought to have been filed latest by 28/8/2017.

This is so because the appellant has conceded that he does not have any certificate by the Registrar excluding the days spent in obtaining the necessary documents. In any event, as rightly submitted by the respondent, even if the appellant had that certificate, he would not benefit from the exclusion because his letter requesting for the requisite documents was not copied to her as provided by sub -rule (2) of Rule 90 of the Rules. The above position is long settled as it has been the same even before the coming of the current Rules, therefore, the appellant's suggested innovation is, with respect, uncalled for. The following cases demonstrate the position then in the old Rules when the current Rule 90 was Rules 83. In East Africa Mines Limited V. Christopher Kadeo, Civil Appeal No. 53 of 2005(unreported) the Court held; "We shall first deal with the Issue whether the appeal was time barred. On this, the relevant provision Is rule 83 which under sub-rule (1) provides in dear terms that an appeal shall be instituted within sixty (60) days o f the date o f the notice o f appeal. However, there is also a proviso in the sub-rule to the effect that if the letter to the 8

Registrar o f the High Court applying for copy o f the proceedings is in writing and was copied to the respondent, the time taken for the preparation and delivery o f the copy o f proceedings as may be certified by the Registrar as having been necessary for the preparation o f the copy o f proceedings shall be excluded." The same was said in the case of Mwanaasha Seheye V. Tanzania Ports Corporation, Civil Appeal No. 37 of 2003(unreported); "An appeal must be instituted within sixty (60) days o f the date when the notice o f appeal was lodged unless the exception under sub - rule (2) applies. Secondly he must have sent a copy o f such application to the respondent " The appellant believes that his tireless efforts to obtain leave to appeal and to get copies of some relevant documents absolve him of the statutory requirement to appeal within sixty days, but that is not the correct position of the law. Faced with an akin situation recently in Richard Mchau V. Shabir F. Abdulhussein, Civil Application No. 87 of 2008, (unreported) we said: -

"However, much as we may agree that endeavours by an appellant to seek leave to appeal to this Court constitute one o f the essential steps towards prosecution o f an intended appeal, we are certain that the efforts by the respondent were efforts in futility having not fully complied with the fetter o f rule 83 (1) and (2) o f the Oid Rules beforehand." Lastly, considering the same issue under the new Rules in the case of National Microfinance Bank PLC V. Oddo Odilo Mbunda, Civil Appeal No. 95 of 2015 (unreported), it was emphatically said: - "The Court has on several occasions said that, where there is no valid certificate o f delay, the appellant is not entitled to benefit from exclusion o f the period o f waiting to be supplied with proceedings from the High Court which makes the appeal to be time barred and not properly before the Court". Back to the case under our consideration, since the notice of appeal was lodged on 28th June, 2017, the appeal presented on 7th December, 2018 is hopelessly out of time in the absence of a certificate of the Registrar excluding the days in between the two dates. In the end, we sustain the respondent's first point of preliminary objection. 10

The above conclusion makes it unnecessary for us to pronounce ourselves on the remaining points. We accordingly strike out the appeal with costs for being out of the statutory time. It is so ordered. DATED at MWANZA this 28th day of October, 2019 The ruling delivered this 30th day of October, 2019 in the presence of Appellant Geofrey Kabaka appeared in person and Respondent Farida Hamza also appeared in person is hereby certified as a true copy of the original. A. G. MWARDA JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL li