Court name
Court of Appeal of Tanzania

D. P. Valambia vs Transport Equipment Ltd () [1992] TZCA 37 (24 August 1992);

Law report citations
1992 TLR 246 (TZCA)
Media neutral citation
[1992] TZCA 37

Mfalila, J.A.: This matter concerns two applications which were consolidated by order of this Court dated 3rd July, 1992. These are application Nos. 13 and 29 of 1991. In F Application No. 13 of 1991, the applicant is D.P. Valambhia and Transport Equipment Limited are the respondents, while in Application No. 29 of 1991, the roles are reversed, Transport Equipment Ltd. are the applicants and D.P. Valambhia is the respondent. At this stage, a brief historical background would be in order. In Dar es G Salaam High Court Civil Case No. 240 of 1989, M/S Transport Equipment Limited, sued D.P. Valambia whom they had Commissioned to collect on their behalf, certain monies due to them from the Government of Tanzania. This Commission was worth $ 150,000, but they alleged that D.P. Valambia had made fraudulent attempts to have H paid to his personal account abroad a sum of money far in excess of his entitlement. D.P. Valambia denied the allegation and counter-claimed on the basis that he was entitled to 45% of the contract sum due to Transport Equipment Limited. On the I hearing date, the plaintiffs did not appear, the suit was therefore dismissed and the

judge entered judgment in favour of the respondent on his counter-claim. That was on A 12th February 1991. On 14th February 1991, the plaintiffs Transport Equipment Ltd., filed with the Registrar of the High Court a notice of appeal, that they intended to appeal to this court against the whole of the Ruling and Judgment of the High Court. This B notice for one reason or another was never served on D.P. Valambia the prospective respondent in the intended appeal until two months later on 19th April 1991 when D.P. Valambia filed a notice of motion, instituting Civil Application No. 13 of 1991 in which he prayed to move a judge of this Court for an order that the notice of appeal filed by C the respondents Transport Equipment Limited be struck out on the ground that some essential step in the proceedings had not been taken and/or has not been taken within the prescribed time, and for an order that the costs of and incidental to this application may be paid by the said respondents. This application was supported by two affidavits D deposed to by the applicant D.P. Valambia and one Hamisi Dihoni a clerk in the Chambers of Maira & Co. Advocates, the applicant's Counsel. The respondent Transport Equipment through their Counsel E.H. Mbuya, opposed this application and filed two counter affidavits. Counter affidavit I was deposed to by Miss Cecilia Joyce E Sichalwe, A Secretary in Mr. Mbuya's office, while counter affidavit II was deposed to by Mr. Evarist Mbuya himself.
Before this application was disposed of, Transport Equipment Limited filed a notice of motion to move the Court for an order that the time for serving the respondent with a F copy of the notice of appeal be extended up to the date the respondent received the said notice of appeal and for an order that costs of and incidental to this application abide the result of the said appeal. This was registered as Civil Application No. 29 of 1991. When Civil Application No. 13/91 came up for hearing before Omar, J.A., G Mr. Mbuya applied orally to have that application consolidated with his client's application No. 29/91. After hearing the arguments, Omar, J.A. dismissed the application holding that "Lumping the said applications together would not meet the ends of justice because each application has its own separate object to pursue." Mr. H Mbuya was dissatisfied with this refusal to consolidate and he took it on reference before the Court. The Court consisting of Makame, Kisanga and Ramadhani, JJA, allowed the reference stating at page 2 of the typed Ruling:
I We think with respect to refuse to consolidate would be to

A fragment the process and delay the outcome. We are satisfied that to consolidate would be the better course in the circumstances and we so order.
This Order led to these consolidated proceedings before me involving Civil Applications Nos. 13 and 29 of 1991. B
For my part, in dealing with the present applications, I did not lose sight of the decision of this Court in Civil Appeal No. 34/88 where the problem facing the Court and the way counsel for the appellant sought to go about it are similar to those facing me in the present applications. In that appeal, Arusha International Conference Centre v. C Damas Augustine Ndemasi Kavishe, the question arose as to whether a notice of motion to save an appeal could properly be taken out in answer to another notice of motion which had sought to have that appeal struck out as being incompetent. This to me appears to be what Transport Equipment Limited were trying to do in their notice D of motion in Civil Application No. 29 of 1991, namely to save their notice of appeal from being struck out as prayed for in Civil Application No. 13/91. In that appeal, the Arusha International Conference Centre was appealing against the decision of the High Court granting an injunction against it, restraining it from evicting the respondent from E a residential house. When the matter came up for hearing, Counsel for the respondent orally took a preliminary objection that an essential step had not been taken in that the appellant had failed to extract the decree being appealed against and make it part of F the record of the intended appeal. However the Court refused to entertain this oral applications being against the rules, but he was allowed to file the necessary notice of motion in which he sought to have the appeal struck out as being incompetent. At the resumed hearing, Counsel for the appellant filed a notice of motion seeking extension G of time to file the memorandum and record of appeal and leave to file a supplementary record of appeal. Faced with this situation, the Court (Kisanga, J.A) stated:
H It thus became apparent that the situation was getting confused because a notice of motion to save an appeal could not properly be taken out in answer to another notice of motion which had sought to have the appeal struck out as incompetent. It was accordingly directed that the first motion raising the preliminary objection be heard first and depending I on the outcome thereof the subsequent motion seeking an extension

A of time to file the memorandum and record of appeal and leave to file supplementary record of appeal could then be heard.
After hearing the first motion to strike out the appeal, the Court held that failure to B extract a decree and to include it in the record of appeal in terms of Rule 89(2) of the Court of Appeal Rules was fatal making the appeal incompetent and was accordingly struck out. Regarding the other application by Counsel for the appellant for the extension of time to lodge the memorandum and record of appeal as well as to file a C supplementary record of appeal the Court held:
In the light of this ruling, (i.e. that the appeal is incompetent and was therefore struck out) it would now be pointless to entertain the application for extension of time. The D application for extension of time to file the memorandum and record of appeal presupposes that there is already a notice of appeal in existence. But the notice of appeal which brought into being the appeal which has just been struck out, disappeared with the striking out of the appeal. So that there is now a clean plate as it were with nothing on it. E If the appellant wishes to lodge a proper appeal he will have to start afresh by applying for an extension of time to give notice of his intention to appeal. But this Court has no jurisdiction to grant such extension. That jurisdiction is vested in the High Court under F section 11(1) of the Appellate Jurisdiction Act.
In my view, this is what Omar, J.A. had in mind when he refused to consolidate Civil Application No. 13/91 with Application No. 19/91 which seeks to save the notice of G appeal from being struck out as prayed in Civil Application No. 13/91. But even with these two applications having been consolidated, I intend to deal with them on the lines adopted in Civil Appeal No. 34/88 quoted above. I will therefore start with Civil Application No. 13/91.
As indicated earlier, the applicant in this application is seeking an order that the notice H of appeal filed by the respondent be struck out, because some essential step in the proceedings has not been taken and/or has not been taken within the prescribed time as required by Rule 77 (1) of the Court of Appeal Rules 1979 which provides as follows: I

A 77 - (1) An intended appellant shall, before, or within seven days, after lodging a notice of appeal, serve copies of it on all parties who seem to him to be directly affected by the appeal; but the Court may, on an exparte application, direct that service need not be effected on any person who took no part in the proceedings in the High Court. B
At the hearing of this application, Mr. Marando who appeared for the applicant, submitted that there were two essential steps which were not taken. First, he said, the respondents did not serve the applicant with the notice of appeal as required by Rule 77 C (1) quoted above. Secondly, he said that the respondents did not send to the applicant a copy of their letter applying for certified copies of the record, thus disqualified themselves from the benefits of the exception in Rule 83 (2) regarding the computation of time. In the circumstances, he said, the respondents should have filed D the memorandum of appeal by 19/4/91 i.e. within 60 days of their filing the notice of appeal.
Before proceeding further with this application, I think I should deal first with the question regarding its validity. This application was undoubtedly brought under the provisions of Rule 82 which provides as follows: E
82. A person on whom a notice of appeal has been served, may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, F as the case may be on the ground that no appeal lies or that some essential stop in the proceedings has not been taken or has not been taken within the prescribed time. (The emphasis is supplied).
In the present case, the application to strike out the notice of appeal was filed before G the applicant was served with the notice of appeal, thus making him unqualified to mount this application under the above quoted rule. In this connection Mr. Marando submitted, rightly in my view, in the light of the observations by the defunct East African Court of H Appeal in Osongo and another v Republic [1970] EA 170, that since at the time he was orally addressing the Court on the notice of motion, he had already been served with the notice of appeal, this application is valid under Rule 82. In the Osongo case, it was contended for the respondent that the application I

was incompetent because it was filed before the application to the High Court. The A Court held at page 171 B:
We think that a motion is an oral application and therefore that it is made at the time when the applicant addresses the Court or judge, not when the notice of motion is filed. This B is borne out by the wording of the prescribed form of the notice of motion.
Indeed the word used in the Rule is "apply" not "file". Since therefore in this C application the applicant was served with the notice of appeal on 25/4/91, he was already served with the notice at the time he was addressing me on 30/7/92, and that therefore it comes within the provisions of Rule 82 and is accordingly valid.
Reverting now to the first of the steps which were not taken, Mr. Marando said that D he was served with the notice of appeal dated 14th February 1991 on 25/4/91. This Notice was lodged with the High Court on 19th February, 1991. Under Rule 77 (1) it should have been served within seven days from 19th February, 1991, i.e. by 27th February, 1991.
The respondents have conceded throughout that the notice of appeal which they E lodged with the High Court on 19th February, 1991, was not served on the applicant within seven days and that it was served two months later on 25/4/91. But Mr. Mbuya submitted on behalf of the respondents that there are sufficient grounds not to strike out the notice of appeal and for extending the time within which to serve it. He said that F the notice of appeal was not served on the applicant due to a mix up in his office. Mr. Mbuya then proceeded to explain this mix up. He said that on 14/2/91, he drafted the notice of appeal and indicated that copies were to be served on the applicant through his two advocates. On 18/2/92, he drafted a letter to the Registrar, requesting for G certified copies of proceedings and indicated that copies of the letter were to be sent to the applicant's advocates. This letter was referenced EHC/501/TeL/HCC 210/89 dated 18/2/91. The relevant envelopes were typed, but the mix-up occurred when it H came to putting the contents in them. Instead of putting in each envelope a copy of the notice and a copy of the letter, his secretary put in one envelope two copies of notices and in the other two copies of the letter. As it turned out, the envelope addressed to Marando & Co. contained the two copies of the notices. This envelope remained in I Mr. Mbuya's office undelivered until April. The other envelope addressed to Maira &

Co., had the two copies of the letter, but this according to Mr. Mbuya, was handed A by him personally to a clerk in the chambers of Maira & Co. for delivery to his employers. The clerk is Hamisi Dihoni. All this information is contained in affidavits I and II deposed to by Miss Sichalwe and Mr. Mbuya himself. But in his affidavit, Hamisi Dihoni stated that he was handed an envelope by a secretary in Mr. Mbuya's office Bon 25/4/91 for delivery to Maira & Co and that this envelope contained a notice of appeal dated 14th February, 1991, and a letter reference No. EHC/301/TEL/HCC 210/89 dated 18th February, 1991, and that he delivered these documents to Mr. Maira of Maira & Co. Advocates. C
I will start with the non delivery of the notice of appeal. Rule 77(1) was not complied with due to mistake by Counsel. The question is whether this is sufficient reason. Mr. Marando submitted that the notice of appeal was not served on the applicant because of negligence and inaction on the part of his learned colleague, counsel nor the D respondents, and that this negligence and inadvertence cannot excuse the non-appliance with Rule 77 (1). This Court has held on a number of occasions that lapses of a minor nature on counsel's part, may be excused, but where counsel's conduct amounts to negligence or inaction leading to non-appliance with a mandatory statutory E requirement, this Court will not be easily moved to condone the conduct. In this case, by Mr. Mbuya's own admissions, he seems to be guilty of negligence and inaction at two levels. Having prepared the notice of appeal and the letter applying for copies of proceedings timeously, it is really inexcusable that the documents were wrongly F placed in the envelopes and then left the envelope addressed to Mr. Marando lying in his office for over two months! Yet he knew or he is supposed to know the mandatory provisions of Rule 77 (1). Quite clearly, by this kind of conduct, counsel for the respondents was doing very little to protect the interests of his clients. In Civil Appeal G No. 9/84, Mrs. Grace Frank Ngowi v Dr. Frank Israel Ngowi, this Court rejected the contention by counsel for the applicant that he had not served the notice of appeal on the respondents because he had relied on the undertaking by a registry officer to serve the notice on the respondent which he failed to do and also that he had H inadvertently failed to despatch a copy of the application and a copy of the record to the respondent. The appeal was struck out.
Regarding the copy of the letter applying for copy of proceedings two copies were put in an envelope addressed to Mr. Maira, which never reached him in February or by I the time they

filed the notices of motion for an order to strike out the notice of appeal. This A requirement is governed by Rule 83.
83 - (1) Subject to the provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged - B
(a) a memorandum of appeal, in quintuplicate;
(b) the record of appeal in quintuplicate;
(c) the prescribed fee; and
C (d) security for the costs of the appeal;
save that where an application for a copy of the proceedings to 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 D 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.
E (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.
Mr. Mbuya stated in his affidavit and at the hearing that he personally handed the F envelope containing the copy of the letter to Mr. Maira's clerk one Hamisi Dihoni for delivery to his employers, and that when he saw the contents of paragraph 3 of Dihoni's affidavit, he confronted him and Dihoni informed him that the particulars in his affidavit which are handwritten had not been inserted by him and that he also recalled the fact G of his handing over to him the envelope containing the copy of the letter ref. No. EHC/501/TEL/CC 210/89/91 dated 18/2/91. This was all the depositions stated about the respondents' compliance with Rule 83 (1), namely that a copy of the letter applying for a copy of proceedings was sent to the respondent. But as Mr. Mbuya H undoubtedly knows, all this is hearsay. He should have filed an affidavit by Hamisi Dihoni confirming their alleged conversation. In a parallel case, Civil Application No.5/87 Kigoma Ali Malima v Abbas Yusuf Mwingamo, the applicant applied to have the appeal filed by the respondent struck out in terms of Rule 82 on the ground I that although the respondent had filed the memorandum and record

of appeal in time, he failed to serve the documents on the applicant. In his reply, A counsel for the respondent filed an application also by way of motion for an order that he be granted an extension of time to serve a copy of the memorandum and record of appeal on the applicant. In support of his application for extension of time, counsel stated that on 27/11/86 he had handed the documents to a messenger in his office B one Iddi Selemani Sengumba with instructions to deliver it to counsel for the applicant. He was thus surprised to learn through applicant's application to strike out the appeal that apparently the memorandum and record of appeal had not been served on applicant's counsel. C
This Court held that in the absence of an affidavit by Sengumba that he had tried and failed to serve applicant's counsel, that was no reason let alone sufficient reason before the Court for the failure by respondent to serve the applicant with the memorandum and record of appeal in terms of Rule 77 of the Rules. Hence the application for extension D of time was refused and the appeal was struck out. This is exactly what Mr. Mbuya should have done in this case, namely file an affidavit by Hamisi Dihoni. However, Mr. Mbuya explained his failure to file Dihoni's affidavit, saying that under pressure from his employers, that is Maira and Company Advocates, Hamisi Dihoni was most unwilling E to make an affidavit to contradict what he stated in paragraph 3 of his affidavit. Apparently there was some correspondence on this aspect of the matter between Mr. Mbuya's Chambers and these of Maira & Company which ended with Maira & Co. F vehemently denying the allegation and added that they could not be involved in conduct which was illegal. This letter is annexure R6. But at the hearing of these applications, Mr. Maira submitted that at an earlier hearing, they had brought Hamisi Dihoni along so that Mr. Mbuya could cross-examine him on his affidavit if he so wished, but that Mr. Mbuya had not taken up the offer. Even subsequently, Mr. Maira added, Mr. Mbuya G never thought it necessary to have Hamisi summoned for cross examination on his affidavit.
Mr. Mbuya also tried to prove that the letter of 18/2/91 was sent to counsel for the applicant by pointing out that the letter referred to in paragraph 3 of Dihonis' affidavit, H was not the one he sent on 25/4/91, but the one which was sent in February and that therefore the fact that the applicant referred to this letter, is proof that it reached him in February by the hand of hamisi as he claims. Mr. Maira answered this quite simply by pointing out that was the letter which they received with the notice of appeal on I 25/4/91 and that it was

none of their business that it was not the letter Mr. Mbuya had intended to send to A them.
Quite clearly Mr. Mbuya must take all the blame. He knew and he knows the importance of complying with Rule 83 (2) to enable him enjoy the protection under the exception clause in sub-rule (1), yet he made no attempt to keep a record of the fact B that he had handed the letter to Maira's clerk. As Mr. Marando correctly stated, Mr. Mbuya could have achieved this by one of two ways. He could have used a despatch book or made Hamisi acknowledge his receipt of the envelope. This would have been enough proof that the copy of the letter was sent to the applicant was required by C Rule 83 (1) and that therefore he is covered by the exception in that sub-rule. At the lowest Mr. Mbuya could have mitigated the effects of Dihonis affidavit by cross-examining him. The Registrar of the High Court must therefore have issued the certificate under a mistaken belief that the respondent was entitled to it. As matters D stand then, the respondent is not covered by the exception in sub-rule (1) because although he applied for the copy of the proceedings in writing within thirty days, he did not send the copy of the letter to the applicant. Since on my finding the respondents failed to take an essential step in the proceedings, in that they did not, through E negligence and/or inaction serve a copy of the notice of appeal on the applicant as required by of Rule 77 (1), this notice of appeal must be and is hereby struck out. Since also on my finding, the respondents did not send to the applicant a copy of their letter in which they applied for a copy of the proceedings, as required by Rule 83 (2) they are F not covered by the exception in sub-rule (1) and that therefore the Registrar issued them with a certificate under sub-rule (1) while labouring under a mistake of fact. Consequently the period available to the respondents in which to institute the appeal, was sixty days. G
With these findings, it is not strictly necessary for me to consider and determine Civil Application No. 29/91 in which the applicants are seeking an extension of time to serve the respondent with the notice of appeal, namely up to the date the respondent received it. I say it is not strictly necessary because in the reference which ordered H consolidation, the Court appears to have accepted the argument in favour of consolidation to the effect that "the two applications were essentially two sides of the same coin, that if for example, the single judge decided that the present applicant had indeed failed to take essential steps and so strike out the notice, he could not then turn I round in the other application and permit the

present applicant to comply with all the formalities and vise versa." Nevertheless with A this in full view, I intend to deal with application No. 29/91 on its merits.
As indicated earlier on in this Ruling, this application was launched by the applicants essentially to save their notice of appeal dated 14/2/91 from being struck out. The basic B position of this court in such matters was clearly set out in Civil Appeal No. 34/88 set out earlier. The power to extend the various periods in the Rules is provided in Rule 8 and this court had the occasion in Civil Application No. 27/87 Dar es Salaam City Council v Jayantlal Pragubhai Rajan to make general comments on the exercise C of the powers under that Rule. The court stated at page 4 of the typed judgment:
It is now well established that under this rule this court has wide powers to extend the time for the doing of any act in terms of the rule, provided that sufficient reason is D shown. However the problem often arises as to what amounts to sufficient reason.
The court then proceeded to state what amounts to sufficient reason and stated at E page 12:
What is discernible from the applicants' affidavit and the submissions by counsel was that the delay was actually due to lack of diligence. A good instance of this is afforded by the F claim that the applicant, having access to the Order of the Chief Justice at the Court of Appeal registry on 23/6/86 did not bring the application because the information was unofficial. Quite clearly that was no evidence of diligence in pursuing the matter. Time and G again the court has stressed the need to comply with the court rules the purpose of which is to provide a timetable for the conduct of litigation. The court's discretion under Rule 8 to extend the time fixed for doing an act is one to be exercised judicially. No doubt the decision whether or not to exercise the discretion in favour of the applicant will depend H on the facts and circumstances of each individual case, but one of the important consideration influencing that decision is whether the application was brought promptly. The inordinate delay in the instant case is clearly a factor which operates against the I exercise of the discretion in favour of the applicant, the absence of any or

A valid explanation for the inordinate delay and complete lack of diligence are yet other factors operating in the same directions.
In present application, the failure to serve the notice of appeal was not only due to B negligence and inaction on the part of counsel for the applicants, but the application itself for the extension of time was brought as a saving measure, it was filed in response to another application seeking to strike out the very notice of appeal the applicants were frantically seeking to save from the axe. This application is therefore only a reaction, C one cannot in these circumstances say that the application was promptly brought on sound reasons. There is another difficulty facing this application. Even if this application to extend the time in which to serve the notice of application on the respondent were to be granted, the applicants will still be faced with the problem of instituting the appeal D under Rule 83(1), in that the 60 day period seems to have run out. There is no application seeking to extend the 60 day period in which to institute the appeal by lodging in the registry, a memorandum of appeal, the record of appeal, the prescribed fee and security for the costs of the appeal. Those documents appear to have been E filed on 3rd June 1992 more than a year after the due date.
Mr. Mbuya advanced two other reasons for this court to exercise its discretion under Rule 8 and order extension of time. He said that the intended appeal if allowed to take off, has overwhelming chances of success because of the exceptional circumstances F present in the case. He elaborated on this saying that the learned judge's order refusing an adjournment and his award of the judgment on the counter claims were against the rules of natural justice.
With regard to the claim that the intended appeal has overwhelming chances of G success, the record shows that the suit was dismissed and judgment entered on the counterclaim in default. The story narrated at the hearing of this application, is typical of what appears to be Mr. Mbuya's style of doing things. He left the whole thing up to the very last moment, unfortunately his client failed to arrive in Dar es Salaam, hence Mr. H Mbuya could not file a defence as ordered by the court. With a little more diligence and application, Mr. Mbuya could have managed to file the defence to the counterclaim by the appointed day. This is so particularly when the amount at stake is considered. I However, likelihood of the intended appeal succeeding, is not in itself sufficient to make this

court exercise its discretion in favour of the applicant. Rules of court were created to A act as vehicles to enable this court to dispense justice between parties, and the court's task in this direction is made easier if the rules are complies with. The general rule therefore is that this court will lean towards strict compliance with the rules, only to depart from this general rule in cases where it is clear that strict application would not B be in the interests of justice. In such cases, discretionary powers provided in rules such as Rule 8 would be brought into play. As this court remarked in Civil Application No. 20/87 quoted earlier, the purpose of the court rules is to provide a timetable for the conduct of litigation. In this application, this timetable states that by the time the C applicants filed this application, they were deemed under rule 84 to have withdrawn their notice of appeal. Very good reasons other than negligence and inaction must be firmly established before this timetable can be disturbed. There are neither good reasons nor exceptional circumstances in this case to warrant the disturbance of the timetable D by which litigants are supposed to conduct their affairs.
For the totality of all these reasons, this application to extend the time within which to serve the notice of appeal fails and it is dismissed with an order for costs in favour of D.P. Valambhia the applicant in Civil Application No. 13/91 and respondent in Civil E Application No. 29/91.
F Appeal dismissed.

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