On his part, Mr. Bomani, learned advocate for the respondent, readily conceded that even though the respondent had lodged the notice
of appeal in time on the 21.11.2003, the said notice of appeal was served on the applicant on the 3.12.2003, out of time. However
the learned advocate made an oral application to enlarge time in order to serve the notice of appeal on the applicant, in the interests
of justice, as he put it. On the second limbfs complaint by Mr. Ringia, Mr. Bomani submitted that a letter asking for a copy
of the proceedings in the High Court was written on the 20.11.2003 and was copied to the applicant. The learned advocate however
conceded that there was no evidence that the applicant actually received it. However, Mr. Bomani added that non-compliance with the
Court Rules should not render the appeal incompetent.
Rule 83 (1) and (2) of the Court Rules provides as follows ?
g83 (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 ?
a)
a memorandum of appeal, in quintuplicate;
b)
the record of appeal, in quintuplicate;
c)
the prescribed fee; and
d)
security for the costs of the appeal,
Save that where an application for a copy of the proceedings in 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
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 of 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.h
The letter to the High Court dated the 20.11.2003 was copied to the applicant, but
the requirement under sub-rule (2) is that the letter must sent to the applicant, that is, it must be served on the applicant. There
must be evidence of receipt of the letter by the applicant. There was no evidence that the applicant had been served with a copy
of the letter. Consequently, as the applicant was not served with a copy of the letter of 20.11.2003, the respondent cannot take
advantage of the exception to sub-rule (1) of rule 83 in computing the time within which the appeal is to be instituted, to exclude
the time taken for the preparation and delivery of a copy of the proceedings to the respondent. The appeal should therefore have
been instituted within sixty days from the date of the notice of appeal was lodged, that is, the 21.11.2003.
In an attempt to salvage the situation, Mr. Bomani made an oral application in the
course of the hearing, to extend time to serve notice of appeal upon the applicant. Not surprisingly, Mr. Ringia strongly resisted
the attempt as being an effort to pre-empt his application to strike out the notice of appeal. An application for extension of time
to serve notice of appeal presupposes that there is a notice of appeal in existence. I am satisfied that the respondent was in breach
of Rule 77 (1) of the Court Rules in that the applicant was not served with the notice of appeal. Secondly, the respondent did not
institute the appeal within sixty days reckoned from the 21.11.2003 when the notice of appeal was lodged. The notice of appeal is
accordingly struck out with costs.
The learned advocate for the respondent may wish to resurrect the appeal by making
an application before the proper forum for extension of time to file notice of intention to appeal. This Court has no such jurisdiction
in terms of Section 11 (1) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002. (See: Civil Appeal No. 34 of 1988 Arusha International Conference Centre v. Damas Augustine Ndemasi Kavishe; (unreported) D.P. Valambhia v. Transport Equipment Ltd. (1992) TLR 246.
DATED at DAR ES SALAAM this 22nd day of March, 2006.
