IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MROSO, J.A., NSEKELA, J.A. And RUTAKANGWA, J.A.) CIVIL REFERENCE NO. 14 OF 2004 FRANCISCA MBAKILEKI. APPLICANT VERSUS TANZANIA HARBOURS CORPORATION RESPONDENT (Reference from the Decision of a Single Judge of the Court of Appeal of Tanzania at Dar es Salaam) (Msoffe, J.A.) dated the 29 th day of September, 2004 in Civil Application No. 71 of 2002 -------------- RULING OF THE COURT 11 December 2007 & 30 January 2008 NSEKELA, J.A.: This reference arises from the decision of a single judge of this Court (Msoffe, J.A.) in Civil Application No. 71 of 2002. The basic facts leading to the application are straightforward. The applicant, Francisca Mbakileki, was the losing party in High Court Miscellaneous Civil Cause No. 66 of 2001 before Kyando, J. The decision was delivered on the 23.4.2002. Dissatisfied with the said decision, the applicant on the 7.5.2002 lodged a Notice of Appeal and in terms of Rule 83 (1) of the Court of Appeal Rules, the applicant wrote a letter to the Registrar of the High Court applying for a copy of the proceedings within the prescribed period and the letter was sent to the respondent as well. Since the Registrar has not as yet supplied to the applicant the proceedings, the applicant filed a notice of motion before the Court seeking extension of time to institute the appeal against
the decision of Kyando, J. A single judge of this Court on the 29.9.2004, dismissed the application with costs, hence this Reference. The essence of the complaint by the applicant is captured in the following paragraph in the letter of reference to the Registrar dated the 12.10.2004. It reads as follows The learned single judge erred in law in holding that, since the applicant had applied for a copy of the proceedings within thirty days of the decision of the High Court (Kyando, J.) in Misc. Civil Cause No. 66/2001, there was no point in filing the application for enlargement of time to institute an appeal against the said decision instead of waiting to enjoy the benefit provided for under the proviso to Rule 83 (1) of the Tanzania Court of Appeal Rules, 1979. The thrust of the application before the single judge was the enlargement of time to institute the appeal under Rule 83 (1) of the Court of Appeal Rules. The single judge fully discussed the import of the Rule and held that the application before him was premature. The applicant had in writing made an application to the Registrar of the High Court for a copy of the proceedings and had sent a copy of it to the respondent in compliance with Rule 83 (1). Mr. Rweyemamu, learned advocate for the applicant, strenuously sought to invoke Article 107A (2) (e) of the Constitution which reads 107A (2) Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria, mahakama zifuate Kanuni zifuatazo, yaani: (e) Kutenda haki bila ya kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka. The Court pressed Mr. Rweyemamu to show in what way Rule 83 (1) was a hindrance or stumbling block or was a technicality which hindered substantial justice being done to the applicant. Not surprisingly, the learned advocate was very unhelpful to the Court. Dr. Mapunda, learned advocate for the respondent, on his part, submitted that there was nothing wrong in the decision of the single judge to warrant interference. He added that the single judge had considered the facts and submissions before him, as well as the applicable law. In his view, the application was unnecessary and superfluous. The applicant had fully complied with Rule 83 (1) and (2) of the Court of Appeal Rules and at the appropriate time, the applicant would obtain a certificate of delay. The learned advocate helpfully referred the Court to a number of authorities on the issue including Transcontinental Forwarders Limited v 2
3 Tanganyika Motors Limited (1997) TLR 328 and Mrs. Kamiz Abdullah M.D. Kermal v The Registrar of Buildings and Miss Hawa Bayona (1988) TLR 199. The central issue in this Reference is whether or not there has been delay by the applicant in instituting the appeal in terms of Rule 83 (1) and (2) of the Court of Appeal Rules so as to bring into play Rule 8. Rule 83 states as follows 83 (1) Subject to the provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within 60 days of the date when the notice of appeal was lodged: (a) (b) (c) (d) save that where an application for a copy of the proceedings in the High Court has been made within 30 days 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 of it was sent to the respondent. The applicant has complied with Rule 83 (1) and (2) above to the letter. The applicant had in writing made an application to the Registrar for a copy of the proceedings and in addition had sent a copy of that letter to the respondent. Mr. Rweyemamu does not dispute this fact. In the case of Transcontinental Forwarders Limited v Tanganyika Motors Limited (1997) TLR 328, this Court stated thus That the present respondent who had applied to the registry for a copy of the proceedings sought to be appealed against and had not been furnished with any, had complied with Rules by copying his letter to the relevant parties there was no legal provision requiring him to keep reminding the Registry to forward the proceedings and once Rule 83 was complied with the intending applicant was home and dry. Once the proceedings are ready for collection, the applicant will be notified accordingly. Indeed in the case of Mrs. Kamiz Abdullah M.D. Kermal v
4 The Registrar of Buildings and Miss Hawa Bayona (1988) TLR 199, the Court at page 202 H stated 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 within 30 days of that judgment or order appealed against, and the application is copied to the other party. The applicant cannot institute the appeal until such time that she has been supplied with the proceedings applied for. And the sixty days within which to do so will not start to run until she receives them. Mr. Rweyemamu s apparent anxiety is uncalled for. The rules are there to be followed step by step. The stage to apply for extension of time to institute the appeal has not matured. With respect, we appreciate that Article 107A (2) (e) of the Constitution directs that courts in dealing with criminal or civil cases shall administer substantive justice without undue regard to technicalities. This does not mean that parties should short-circuit prescribed procedures. In the result, we are satisfied that the reference is devoid of any merit. The decision of the single judge is well founded. We dismiss it with costs. DATED at DAR ES SALAAM this 22 nd day of December, 2007. J. A. MROSO H. R. NSEKELA E. M. K. RUTAKANGWA I certify that this is a true copy of the original.
(F. L. K. WAMBALI) SENIOR DEPUTY REGISTRAR 5