Dr. Lamwai, in elaboration, submitted that judgment in the High Court was delivered on the 1.2.2001 and the respondent on the 13.2.2001
lodged the notice of appeal He added that as at 30.10.2003 the proceedings were ready for collection but the respondent has not diligently
pursued the appeal. There was no evidence in writing to that effect, that is, that the respondent was actively following up the matter
with the registry of the High Court, Zanzibar. The learned advocate concluded by submitting that if there was any delay occasioned
by the registry clerks, then an affidavit to that effect should have been filed in Court.
On his part, Mr. Kimweri Chamshama, strongly resisted the allegations leveled against
the respondent. He submitted that he has been constantly making physical follow-ups with the High Court registry, Zanzibar, without
any success.
Dr. Lamwaifs main complaint is that the proceedings were ready for collection
within six months of the filing of the notice of appeal but as at the 30.10.2003, the respondent had taken no steps to collect them
from the Registrar. In paragraph 6 of the affidavit in support, Dr. Lamwai averred ?
g6. To date, the respondent has made no inquiry as to the record, and neither has he collected it, and thus he cannot claim the benefit
of exemption from the limitation period for lodging the appeal.h
The response of the respondent is contained in, paragraph 4 of Mr. Kimweri Chamshamafs
counter-affidavit which reads ?
g4. That the contents of paragraph 6 of the affidavit in support of the notice of motion are disputed. I aver that I have personally
made several inquiries at the relevant registry of Zanzibar but I have never been supplied with any record from that court. Further
also to that, I have never received any letter from the said High Court registry informing me nor the respondent that the record
is ready for collection ----h
Dr. Lamwai has not refuted that the respondent wrote a letter to the Registrar applying
for a copy of the proceedings and that a copy of that letter was sent to the applicant. Consequently, the respondent can rely on
the exception to Rule 83 (1) of the Court Rules to discount the time taken to prepare the records in computing the sixty days required
to institute the appeal. Dr. Lamwai has asserted that the proceedings were ready for collection but the respondent has not bothered
to collect them. In terms of Section 110 (1) of the Evidence Act, he who asserts must prove. Dr. Lamwai had to establish the existence
of those facts and he has failed to do so. He has been unable to establish the date when the respondent became aware of the fact
that the proceedings were ready for collection. This is when time starts to run for the institution of the appeal (See: Civil Reference
No. 10 of 1993, Tanzania Uniform & Clothing Corporation v. Charles Mosses (unreported). In the case of Transcontinental Forwarders Ltd. v. Tanganyika Motors Ltd. (1997) TLR 328 at page 330, a single judge of this Court (Makame, J.A.) stated thus ?
gI wish to say only that reminding the Registrar after applying for a copy of the proceedings etc and copying the request to the other
party may indeed be the practical and realistic thing to do, but it is not a requirement of the law. Once Rule 83 is complied with
the intended applicant is home and dry.h
There is therefore no requirement under the Court Rules for the respondent to remind
the Registrar to furnish the proceedings to the respondent. It is undeniably desirable to do so in order to expedite the processing
of appeals. However since the respondent has not obtained as yet the copy of proceedings from the Registrar, the computation of the
sixty days has not commenced as yet.
In the event, I do hereby dismiss the application with costs.
DATED at DAR ES SALAAM this day of 2006
JUSTICE OF APPEAL
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