On the 5.12.2005 at the commencement of the hearing, the Court was unsure as regards
the competency of the appeal before it. On perusing the record of appeal, it was noticed that the notice of appeal was filed on the
30.6.2000 whereas the record of appeal was filed on the 12.4.2001. On the face of it the appeal seemed to be incompetent and consequently
the Court requested Mr. Rweikiza, learned advocate for the appellant, and Ms. Sehel, learned State Attorney to address the Court
in order to resolve this controversy. In addition the Court ordered that a person from IFM (the appellant) who served the disputed
letter, Ref.No.LEC/IFM/2000/11, on the respondents, and the person who received that letter should swear/affirm affidavits to that
effect. On the 19.12.2002, one Mary S. Mniwasa, Senior Personnel and Administrative Officer cum Legal Secretary of the appellant
duly filed her affidavit.
Paragraphs 6 and 7 of Mary S. Mniwasafs affidavit provides as follows ?
g6. Immediately after presenting the letter, and without first going to my office at IFM, I went straight to the office of the Attorney-General
to serve a copy of the letter under consideration. At the reception on the ground floor of the building housing the offices of the
Attorney General, I explained to the more than four people present there that I wanted to go upstairs to serve the letter. One of
them, a lady, asked me what was the letter about, and I explained. When I explained, one gentleman said it had arrived and asked
me to give it to him (imefika hiyo nipe). I gave it to him and he signed my dispatch book. Annexed hereto marked gAAh
is a copy of the page of the dispatch book showing that the letter was received.
7. I honestly cannot remember that gentleman even if shown to me now. I did not take any particular interest in marking his face.h
(emphasis added)
According to this affidavit, the deponent cannot remember the person who received
the letter in the building housing the Attorney-Generalfs Chambers. Mr. Rweikiza has strongly submitted that the unidentified
lady who apparently signed the dispatch book as acknowledgement of receipt of the letter should be construed as service upon the
Attorney-General. Ms. Sehel has vehemently denied that the Attorney General was served with a copy of the letter in question. It
is not disputed that the receipt of the letter was against signature in the appellantfs dispatch book. The deponent has not
disclosed the name or identity of the person who received the letter. Rule 20 (7) of the Court of Appeal Rules provides ?
gWhere any document is required to be sent to any person, the document may be sent by hand or by registered post to that person or
to any person entitled under Rule 28 to appear on his behalf and notice of the date fixed for the hearing of an application or appeal or for the delivery of judgment or the reasons for any decision
may be given by telephone or telegram.h (emphasis added)
The letter in dispute herein was allegedly delivered by the deponent to an unknown
person on the ground floor of the building in which the Attorney-Generals Chambers are located. We do not, with respect, accept that
this is the sort of service contemplated by Rule 20 (7) above. The appellant was enjoined to serve this letter on the respondent
and there must be proof of such service. In the absence of such proof, the appellant is not entitled to rely on the exception to
sub-rule (1) of Rule 83 when sixty days elapsed. The notice of appeal was filed on the 30.6.2000 and the record of appeal was filed
on the 12.4.2000, clearly after the expiration of sixty days reckoned from the 30.6.2000. The certificate issued by the Registrar
of the High Court under Rule 83 (1) was therefore invalid as the appellant was not entitled to rely on the exception.
In the result, the appeal was filed out of time and we accordingly strike out the appeal with costs.
DATED at DAR ES SALAAM this 4th day of May, 2006.
