Shabir Tayabali Essaji vs Farida Seifudin Essaji (Civil Appeal No. 180 of 2017) [2018] TZCA 288 (17 October 2018)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MUSSA. J.A.. MKUYE, J.A., And WAMBALI. J.AT CIVIL APPEAL NO. 180 OF 2017 SHABIR TAYABALI ESSAJI........................................................APPELLANT VERSUS FARIDA SEIFUDIN ESSAJI................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mkasimonqwa, J.) dated the 16th day of December. 2016 in Probate and Administration Cause No. 109 of 2007 RULING OF THE COURT 24th Sept. & 17TH Oct., 2018 MKUYE. J.A.: In Probate and Administration Cause No. 109 of 2007, Farida Seifudin Essaji (the respondent) had petitioned for the probate of the will of Seifuddin Tayabali (deceased) who died at Buruhani Health Centre, Dar es Salaam on 18th day of October, 2007. The appellant, i

Shabir Tayabali Essaji entered a caveat objecting the petition on the grounds that:

1. The probate cause was opened w ithout involving the objector who is also the beneficiary o f a house located on P lo t No. 4 4 / 77 .

2. The petitioner w ould not adm inister the estate fa irly in which she has an interest and she is a beneficiary.

3. The petitioner has included a ll property m entioned in the w ill w ithout m entioning caveator's shares in a ll assets.

4. The w ill is defective in m aterial and substance fo r failure to m ention the shares o f the caveator in the properties as the caveator is directly the D irector to D ar Ocean Products Ltd. which has been dissolved. 2

5. That the petitioner has fa iled to disclose a ll the properties form ing p a rt o f D ar Ocean Products Ltd. and their value. Upon the caveat having being entered, the matter turned into a civil suit whereby the petitioner and the caveator became a plaintiff and a defendant respectively. Three witnesses testified for the plaintiff (respondent) and five witnesses for the defendant (appellant). At the end of hearing, the High Court ruled that the caveat filed by the appellant was devoid of merit and granted the probate. It went further to appoint the respondent an executor of the last will and testament of the deceased Seifuddin Tayabali. Aggrieved by that decision the appellant has brought the appeal to this Court consisting five grounds of appeal which for reason to be appeared shortly, we shall not reproduce them. When the appeal was called on for hearing, Mr. Ambrose Malamsha learned counsel appeared for the appellant, whereas the 3

respondent enjoyed the services of Mr. Gaudious Ishengoma and Fayaz Bhojan both learned advocates. From the very outset we wished to satisfy ourselves on the propriety or otherwise of the appeal. This was after we had detected that the certificate of delay as shown at page 275 of the record of appeal excludes the period between 22n d day of December 2016 when the appellant filed the notice of appeal and applied for copies of the requisite documents for preparation of record of appeal and 9th day of June, 2017 when the appellant was supplied with such documents copies o f judgment and decree requested for but the appeal was filed on 11th day of August, 2017. We were of the view that the appeal was lodged out of time. We thus invited the parties to address us on this point. Mr. Malamsha argued that the appeal was within time. Fie said, though the decision was handed down on 16/12/2016 and the certificate of delay excludes the period from 22/12/2016 to 9/6/2017, the said certificate was issued to the appellant on 14/6/2017. In his 4

view, the time excluded was between 22/12/2016 to 14/8/2017 which makes the appeal filed on 11/8/2017 to be within time. Upon prompting by the Court on whether the excluded days are reckoned from the date of issuance of the certificate of delay or the time indicated in the certificate, he did not comment on that. He instead contended that in that sense the certificate was erroneous which renders the appeal incompetent before the Court. As to the way-forward, he left the matter in the hands of the Court to decide. In response, Mr. Bhopan while acceding to the issue raised by the Court, he argued that the period excluded in the certificate o f delay was from 22/12/2016 when the appellant applied for copies of documents to 9/6/2017 when he was supplied with the documents. As to the way forward, he urged the Court to ignore such an anomaly which he treated as "a minor or slight defect" and proceed with hearing the appeal on merit. He implored us to do so under Rule 4(2)(a) o f the Tanzania Court of Appeal Rules,.2009 (the Rules). 5

In rejoinder, Mr. Malamsha decided to go along Mr. Bhopan's line o f argument in as far as the issue of the way for-ward was concerned. The issue is whether or not the appeal was lodged within time. Rule 90(1) of the Rules which governs institution of appeals to this Court requires the appeal to be lodged within sixty days from the date when the notice of appeal is lodged. It also provides for the Registrar of the High Court to exclude the days which were required for the preparation and delivery of the copies of proceedings, judgment and decree to the appellant provided the appellant had applied in writing for such documents within thirty days and the copy of such application letter was served on the respondent. The said provision stipulates as follows: - "Subject to the provisions o f Rule 128, an appeal sh all be instituted by lodging in the appropriate registry, within sixty days o f the date when the notice o f appeal was lodged with - 6

(a) a memorandum o f appeal in quintuplicate; (b) the record o f appeal in quintuplicate; (c) security fo r the costs o f the appeal, save that where an application fo r 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 com puting the tim e within which the appeal is to be instituted be excluded such tim e as m ay be certified b y the Registrar o f the High Court as having been required fo r the preparation and delivery o f that copy to the appellant (2). An appellant sh all n o t be entitled to rely on the exception to sub-rule (1) unless his application fo r the copy o f it was served."

[Emphasis added] In this case the judgment sought to be impugned was delivered on 16/12/2016. The appellant lodged the notice of appeal on 22/12/2016 and applied for the copies of proceedings and decree on the same date. He was thereafter issued with a certificate of delay by the Deputy Registrar of the High Court which reads as follows: "IN THE HIGH COURT O F TANZANIA A T D ARES SALAAM PROBA TE AND ADMINISTRA TION CAUSE NO. 109 O F 2007 SEIFUDDIN TA YABALIESSAJU ...................... APPELLAN T VS. FARIDA SEIFUDDIN ESSAJU ................... RESPONDENT [CERTIFICATE O F D ELAY UNDER RULE 90(1) O F COURT O F APPEAL RULES] This is to certify that, a period from 22Pd day ‘ o f December, 2016 when the appellant lodged Notice o f Appeal and applied fo r 8

copies (sic) requisite documents fo r preparation o f the record o f appeal to 9th day o f June, 2017 when the appellant were (sic) supplied with requested document, is to be excluded fo r such days were required fo r the preparation and delivery o f the said requisite papers to the appellant. GIVEN under m y HAND and the SEAL o f the Court this I 4 h day o f June, 2017. R. B. Massam DEPUTY REGISTRAR DAR ESSALAAM ." After having carefully examined the above quoted certificate of delay we agree that the same was issued some few days (in particular five days) after the relevant documents were already delivered to the appellant. The certificate of delay clearly shows that it excludes the days between 22/12/2015 to 9/6/2016 as time having been required for the preparation and delivery o f the copy of the requisite papers to 9

the appellant. Also it is vivid that the same was issued on 14/6/2016 as shown at the bottom of the said certificate. However, we think, this was not an error which vitiated the gist of the certificate as Mr. Malamsha seemed to suggest. On this we are guided by our decision in the case of Kantibhai M. Patel v. Dahyabhai F. Mistry, [2003] TLR 437 where the Court held that: "A proper certificate under the Rule is, therefore, one issued after the preparation and delivery o f a copy o f the proceedings to the appellant. The words "as having been required" clearly refer to a past e v e n t" Some few years later the same principle was reiterated in the case of Andrew Mseul and 5 Others v. The National Ranching Company Ltd and Another, Civil Appeal No 205 of 2016 where the Court held • • - . - ' ■ that: "A valid certificate o f delay is one issued after the preparation and delivery o f the requested 10

copy o f the proceedings o f the High Court. That necessarily presupposes that the Registrar w ould certify and exclude such days from the date when the proceedings were requested to the day when the sam e were delivered." In the same case, the Court went further to state as follows: "The rule does not either provide fo r a certificate to be issued a t a particular time, save only that it m ay be issued after the preparation and delivery o f the record o f proceedings." [Emphasis added] Hence, in view of the position of the Court cited above, the proposition by Mr. Malamsha that the time excluded should be reckoned from 22/12/2015 to 14/6/2016 when the certificate was issued does not hold f f . . . . water in the sense that it has nothing to do with the period excluded. 11

Putting it differently, the date of issuance of the certificate of delay cannot be within the period which was expressly excluded in it. In our case, as* the certificate of delay was issued on 14/6/2016 after the appellant had been supplied with the requisite documents on 9/6/2016 which is the period covered under the certificate, it is our considered view that, the certificate of delay was not erroneous. Further to that, since the Deputy Registrar excluded "the period from 22n d day of December, 2016 when the appellant lodged notice of appeal and applied for copies of requisite documents for preparation of the record of appeal to 9th day of June 2016 when the appellant were (sic) supplied with the requested documents", we are satisfied that the period which was excluded is from 22/12/2016 to 9/6/2017. The importance of certificate of delay is to protect appellant in case the period of filing an appeal has lapsed. In the case of National Social Security Fund v .N e w Kilimanjaro Bazaar Ltd. [2008] TLR 160 the Court held as follows: 12

a "A certificate o f delay under Rule 83(1) o f the Court Rules is a vita! docum ent in the process o f instfartm g an appeal. It comes into p la y after ' the norm al period o f sixty days fo r filin g an appeal has expired. We are o f the view that there m ust be strict com pliance with the rule..." In this case, the judgment sought to be impugned was handed down on 16/12/2015. On 22/12/2015, the appellant lodged a notice of appeal and applied to be furnished with copies of proceedings judgment and decree. According to the certificate of delay, he was supplied with the requisite documents on 9/6/2016. He lodged his appeal on 11/8/2016. By simple calculation, from 9/6/2016 to 11/8/2016 the appeal was filed after 62 days which was contrary to provisions o f Rule 90(1) of the Rules which requires the appeal to be filed within sixty days from the date when the notice of appeal was filed. To put it differently, he did not comply with the provisions o f the proviso to Rule 90(1) of the Rules after the exclusion of the period 13

which was required for the preparation of the documents requested. We are therefore satisfied that the appeal was filed out of time. We have also considered the issue raised by Mr. Bhopan and supported by Mr. Malamsha that as the defect was "minor or slight" it should be waived and proceed with the hearing of the appeal. We have also looked at the provisions of Rule 4(2) (a) of the Rules relied upon by Mr. Bhopan. It provides as follows: "Where it is necessary to make an order fo r the purposes o f- (a) dealing with any m atter fo r which no provision is made by these Rules o r any other written law ; (b) .............................. (C ) ............ , ~ the Court m ay on application o r on its own m otion give directions as to the procedure to be 14

adopted o r make any other order which it considers necessary." However, we do not agree with the two learned counsels' proposition for two main reasons. One, Rule 4(2) (a) of the Rules which was relied upon by Mr. Bhopan, is not applicable in the circumstances. The provision is applicable where there is no specific provision governing the situation. The appeal at hand is governed by Rule 90(1) of the Rules which is a specific law to cater for the situation. Two, as we have already made our finding, the appeal was filed out of time. It is trite law that the issue of time limitation is fundamental as it goes to the root of the jurisdiction of the court to adjudicate on a certain matter. It is, therefore, important for any court to ascertain at the commencement of any proceedings on whether or not the matter is within time. This is because, if the court proceeds without the required jurisdiction the whole proceedings and decision thereof might end up to be a nullity. In the circumstances, the issue of time limitation is not and cannot be treated as "a minor or slight" issue '( - } / 15

which can just be waived as the counsel suggested. Therefore, the prayer cannot be granted. All said and done, it is our finding that the appeal is incompetent before the Court for being filed out of time. We, thus, strike it out with no order as to costs. DATED at DAR ES SALAAM this 8th day of September, 2018. K. M. MUSSA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. MSUMI DEPUTY REGISTRAR COURT OF APPEAL 16