Dismas K.B. Francis vs Tabora Municipal Director (Civil Appeal No. 610 of 2023) [2024] TZCA 817 (23 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA fCORAM: LILA, 3.A.. FIKIRINL J.A, And KENTE. J.AY CIVIL APPEAL NO, 610 OF 2023 DISMAS K.B. FRANCIS...... ........ . .... . ........ ...... . ....... . ............ APPELLANT VERSUS TABORA MUNICIPAL DIRECTOR .... ..................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, atTabora) fMasanche. J.T Dated 11th day of March, 1998 in Civil Appeal No. 31 of 1997 RULING OF THE COURT 20th & 23r d August, 2024 FIKIRINI. J.A.: The appellant, Dismas K.B. Francis, aggrieved by the decision in DC. Civil Appeal No. 31 of 1997, delivered on 11th March, 1998, preferred an appeal to this Court. His appeal was, however, met with a hurdle, after the respondent had filed a notice of preliminary objection. The respondent had two grounds:

1. The appeal is incompetent and untenable in law for the appellant's failure to serve the respondent with the notice of appeal, thus contravening the mandatory provision of rule 84 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). i

2. The appeal is incompetent and untenable in law for being lodged out of time. The appeal is lodged out of the 60 days provided under rule 90 (1) of the Rules, 2009, making it time barred. The respondent filed written submissions to support the preliminary objection raised. On his part, the appellant had filed none but, during the hearing, had an opportunity to address the Court. On the date fixed for hearing, the appellant appeared unrepresented and thus fended for himself, while the respondent was represented by Misses Lucy Kimaryo and Agnes Makhuba, learned State Attorneys, and Mr. Sarriwel Mahuma, also learned State Attorney. Ms. Kimaryo prefaced her submission by informing the Court that she abandoned the first ground of preliminary objection and adopted the written submission lodged on 15th August 2024 in support of the objection raised. Address the Court on the remaining objection ground; she intimated that the present appeal was lodged out of sixty (60) days, the time prescribed by the rules. The appellant, after being granted leave to amend the notice of appeal vide Civil Application No. 177/11 of 2017 on 29th September 2017, complied and lodged his amended notice of appeal on 12th October 2017, as reflected on page 220 of the record

of appeal (the record). However, no appeal was forthcoming until the 4th October, 2023, which was way out of sixty days prescribed under rule 90 (1) of the Rules. Tracing the appellant's steps backward, Ms. Kimaryo submitted that after the decision on 11th March, 1998, the appellant had two obligations: one. Lodge his notice of appeal within thirty days from the date of judgment, and two, write a letter to the Registrar of the High Court requesting to be furnished with the necessary documents, which include copies of proceedings, judgment, decree and tendered exhibits, if any, within thirty days from the date of the impugned decision. The present appeal was lodged after twenty five (25) years, the learned State Attorney, maintained. Since the requisite letter was not lodged at the appropriate time, she urged us to disregard the certificate of delay found on page 294 of the record, issued on 14th August, 2023 based on the letter to the Registrar High Court dated 23r d March, 2023. A case of Mary Mchome Mbwambo and Amos Mbwarnbo (as joint Administrators of the estate of the late Giliiad Mbwambo) v. Mbeya Cement Company Ltd, Civil Application No. 492/16 of 2018 was referred to us, to support her submission.

The learned State Attorney, beseeched us to strike out the appeal for being time barred. On his part, the appellant took us through the long history of what transpired, including several applications before the courts. He started with the Civil Application IM o . 3 of 1998, lodged on 1s t June, 1998, praying for the following orders: (i) Extension of time for filing a notice of appeal. (ii) Extension of time limit for filing an application to seek leave to appeal to the Court of Appeal of Tanzania, and (iii) Leave to appeal to the Court of Appeal of Tanzania. The application was granted, but the order did not cover the first prayer for an extension of time to lodge a notice of appeal. The Court sitting in Civil Appeal No. 71 of 1999, noted the omission and struck out the appeal on 25th March, 2002. This did not deter the appellant as he filed yet another application, seeking a review of the order in Civil Application No. 3 of 1998. The application was granted on 7th February, 2008, as shown on page 121 of the record, followed by the notice of appeal lodged on 11th February 2008. The appellant was again before the Court through Civil Appeal No. 33 of 20X2. This appeal was again struck out for being incompetent for missing a vital document, to wit the

Labour officer's report. The appeal was struck out on 6th November, 2012. The appellant filed another application for extension of time to lodge notice of appeal and leave to appeal to the Court of Appeal. The application was granted on 13th February, 2014. Notice of Appeal was lodged on 27th February 2016. Unfortunately, honourable J.E.C Masanche's name was misspelt. The appellant, therefore, prayed to amend the notice of appeal. Another application for leave registered as Miscellaneous Civil Application No. 4 of 2014 was dismissed on 2n d September, 2015. The appellant was once again before the Court of Appeal in Civil Application No. 177/11 of 2017/ praying to be allowed to amend a notice of appeal. The application was granted, and the amendments were to be made within fourteen (14) days from the date of the ruling which was 29th September, 2017. The notice of appeal was filed on 12th October, 2017. From the said notice of appeal the present appeal was lodged on 4th October, 2023, and the requisite documents were requested on 23r d March, 2023 and the respondent accordingly served as indicated on page 233A, the appellant, argued that he could therefore, rely on exceptions afforded under rule 90 (1) of the Rules. In a short rejoinder, Ms. Kimaryo, reiterated her earlier submissions but added that all that the appellant has been accounting

for would have been valid had the application been for extension of time, which is not. She further submitted that the application for documents referred to on page 233 of the record was not related to the present appeal but to other decisions, including Miscellaneous Civil Application No. 55 of 2012 and Civil Application No. 4 of 2014. After hearing from the parties, we are called upon to deliberate whether the preliminary objection is sustainable. If it is, the appeal before the Court will be struck out as time-barred. Before we determine the preliminary objection, we would like to point out that the case of Mary Mchome Mbwambo and Amos Mbwambo (as Administrators of the estate of the late Gilliad Mbwambo) (supra) is relevant, but not applicable to the facts of the objection raised. In the cited case, the certificate of delay had not been issued, whereas in the appeal before us, the appellant had been issued with one dated 23rd March 2023. In the present appeal, like all other appeals before the Court of Appeal, lodgment of appeal and benefit from the exclusion of time is governed by rule 90 (1) of the Rules and its proviso. That is the bedrock of instituting an appeal. The provision provides thus:-

"90.-(l) 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 of appeal was iodged with - (a) a memorandum o f appeal in quintupiicate; (b) the record o f appeal in quintupiicate; (c) security for costs o fthe appeal, save that where an application for a copy of the proceedings in the High Court has been made within thirty days o f the date of the decision against which it is desired to appeal, there shad, in computing the time within which the appeal is to be instituted be excluded such time as maybe certified by the Registrar of the High Court as having been required for the preparation and delivery o f that copy to the appellant "[Emphasis added] From the provision, it can be deduced that an intending appellant must file a record of appeal and a memorandum of appeal within sixty (60) days, from the date of the lodging the notice of appeal. However, if the appellant would need to be furnished with the necessary documents, then he must make a request from the Registrar of the High Court by writing a letter and make sure to serve the opposite party. It is only

then, the appellant could benefit from an exclusion of time under Rule 90 (1) of the Rules, which allows for the issuance of a certificate of delay and permits the filing of the intended appeal. Coming to the present appeal, the significant date the appellant ought to have observed is the 11th March 1998, when the judgment was delivered. From the 11th March, 1998, the appellant ought to observe the time period set for each activity such as (i) filing of a notice of appeal thirty (30) days from the date of the impugned decision and making sure the other party is served within fourteen (14) days from the lodgment of the notice of appeal under rule 84 (1) of the Rules, (ii) within sixty (60) days from the date of the lodgment of notice of appeal, the appellant is expected to lodge the record and memorandum of appeal, (iii) if the appellant needs to be furnished with the requisite documents, he is required within thirty days from the date of the impugned decision, to request for them by writing a letter to the Registrar of the High Court. The copy of the said letter must be served on the adverse party in terms of rule 90 (3) of the Rules, and (iv) the certificate of delay is considered properly issued excluding the days of delay once the above is observed.

In the appeal before us, the letter requesting for the requisite appeal documents was for the first time written on 23r d .March, 2023, instead of anytime from 11th March 1998 to 10th April, 1998, which would be within thirty (30) days prescribed under rule 90 (1) of the Rules. The letter addressed to the District Registrar dated 23r d March, 2023 is captioned: "RE: APPLICATION FOR CERTIFIED COPIES OF PROCEEDINGS, JUDGMENT AND DECREE IN DC CIVIL APPEAL NO. 31 OF 1997, PROCEEDINGS. RULINGS AND DRAWN ORDERS IN CIVIL APPLICATION NO. 3 OF 1998. AND CIVIL APPLICATION NO. 4 of 2014. The letter further states: "I was the appellant in DC Civil Appeal No. 31 o f 1997 and applicant in Civil Applications No. 3 o f 1998 as well as No. 4 o f 2014. I hereby apply for certified copies o fproceedings, judgment, rulings and drawn orders under Rule 90 o f the Tanzania Court o f Appeal Rules for appealpurposes. ” Faithfully yours, Dismas K.B. Francis. From the letter, it is evident that the appellant was aware of the significance of complying to rule 90 of the Rules. Therefore, the basis of his letter should have been DC Civil Appeal No. 31 of 1997, which its decision is the subject of the present appeal was delivered on 11th 9

March, 1998, if he wanted to enjoy the exclusion of time under rule 90 (1) of the Rules, his letter requesting for the requisite appeal documents should be within thirty (30) days from the date of the judgment. To be precise, the appellant letter to the Registrar High Court ought to have been written before or by 10th April, 1998. Unfortunately, the appellant has not complied with that. Even assuming the time starts to run from 12th October, 2017 when a notice of appeal was filed after the Court granted the Civil Application No, 177/11 of 2017, permitting the appellant to amend his notice of appeal within fourteen (14) days, still the appellant was expected to have lodged his appeal within sixty (60) days, this is on the assumption that the letter requesting for the necessary documents had already been lodged long ago, to be precise in 1998 after the impugned judgment was delivered, and therefore he was in possession of the requisite documents, By lodging his letter assuming it is applicable, which is not, requesting for the necessary documents on 23r d March, 2023 which was beyond thirty days is a situation which cannot be rescued. Failure by the appellant to adhere to the prescribed period under rule 90 (1) of the Rules, leaves us with no option but agree with the

respondent that the appeal is time barred and consequently deserves to be struck out. In the final end, we sustain the objection and hereby struck out the appeal for being time barred. Being a labour matter no order for costs is made. DATED at TABORA this 23r d day of 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Ruling delivered this 23r d day of August, 2024 in presence of the appellant in person unrepresented and Mr. Gureni Nzinyangwa Mapande, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. li