Pitia na usome kwa makini kesi iliyokuwa ya uchaguzi wa jimbo la bukoba mjini kupinga ushindi wa MH SUED KAGASHEKI.
IN THE COURT OF APPEAL
OF TANZANIA
AT DAR ES SALAAM
(CORAM: MUNUO, J.A., KIMARO, J.A. And MBAROUK,
J.A.)
CIVIL
APPEAL NO 107 OF 2008
WILFRED
MUGANYIZI RWAKATARE………………………………APPELLANT
VERSUS
1. HAMIS SUED KAGASHEKI
2. HON. THE ATTORNEY
GENERAL…………..………………..RESPONDENTS
(Appeal from the
Judgment and decree of the High Court of
Tanzania at Bukoba)
(Lila, J.)
dated the 21st
day of December, 2007
in
Misc.
Civil Cause No. 8 of 2005
-------
RULING OF THE COURT
9 February 6 March,
2009
MUNUO, J.A.:
During
the Parliamentary Elections in 2005, the present appellant, Mr. Wilfred
Muganyizi Rwakatare, contested the Bukoba Urban District Constituency under the
sponsorship of CUF. The first
respondent, Mr. Hamisi Sued Kagasheki contested the same seat under the
sponsorship of CCM. The latter won the
elections. Dissatisfied, the appellant
instituted an Election Petition, Miscellaneous Civil Case No. 8 of 2005 in the
High Court of Tanzania at Bukoba Urban District. The said Election Petition was
unsuccessful. Hence the present
appeal.
In this appeal, Mr. Rweyongeza and Mr.
Taslima, learned advocates, represented the appellant. Mr. Malongo, learned advocate, appeared for
the 1st respondent, Mr. Hamisi Sued Kagasheki. The 2nd respondent, Hon. Attorney
General, was represented by Mr. Chidowu, learned Principal State Attorney.
Mr. Malongo filed a Notice of
Preliminary objection under the provisions of Rule 100 of the Tanzania Court of
Appeal Rules, Cap 141 Subsidiary R.E. 2002, contending that the appeal is incompetent
on 3 grounds namely that –
1.
The
Affidavit of Wilbert Maziku in respect of service is incurably defective as it
offends the mandatory provisions of section 8 of the Notaries Public and
Commissioners for Oaths Act, Cap 12 R.E. 2002.
2.
The
appellant did not serve the Notice of Appeal on the 1st Respondent
contrary to Rule 77 (1) of the Tanzania Court of Appeal Rules, Cap 141 Sub.
R.E. 2002.
3.
In
the alternative, the Notice of Appeal was not served within the prescribed
statutory period and thus offending the mandatory provisions of Rule 77 (1) of
the Tanzania Court of Appeal Rules, Cap 141 Sub. R.E. 2002.
The
respondent’s counsel abandoned ground 4 of the preliminary objections.
Counsel for the 1st
respondent contended that the affidavit of service annexed to the Notice of
Appeal is null and void under the provisions of Rule 89 (1) (b) of the Court
Rules, Cap 141 Sub. R.E. 2002. The said
affidavit, he further contended, is incurably defective as it offends the
mandatory provisions of section 8 of the Notaries Public and Commissioner for
Oaths Act, Cap. 12 R.E. 2002 which state, verbatim:
8.
Every
notary public and commissioner for oaths before whom any oath or affidavit is
taken or made under this Act shall state truly in the jurat of attestation at
what place and on what date the oath or affidavit is taken or made.
The
affidavit of service at Page 969 of the record, counsel for respondent argued,
does not conform with the above provisions of Cap 12 because the jurat does not
show the place of attestation. The
rubber stamp and signature are not part of the jurat, Mr. Malongo further
contended. He cited the case of Zuberi Mussa versus Shinyanga Town Council,
Civil Application No. 100 of 2004, Court of Appeal of Tanzania (unreported)
at Page 12-13 wherein the Court considered a similar preliminary objection and
observed, inter-alia:
In D.
B. Shapriya and Company Ltd. versus Bish International B. V., Civil Application No. 53 of 2002
(unreported) a ground of preliminary objection identical with the one under
scrutiny was raised. The Court was of a
firm conclusion that the need to show in the jurat the place where the oath was
taken was indispensable, and this cannot be substituted by the name of the
place in the advocates rubber stamp.
After all such rubber stamp is never part of the jurat of attestation.
The
Court further observed that –
In similar vein the Court resolutely so
held in the case of Theobald Kainami
versus The G. M. K. C. U (1990) Ltd. (CA) B. K. Civil Application No. 3 of 2002 (unreported) wherein the Court held
that –
………the courts in this country do not
have the kind of Leeway the courts in England have. The requirement in this country that the
place where the oath is made or affidavit taken has to be shown in the jurat of
attestation is statutory and must be complied with.
All
in all, Mr. Malongo contended that the defective affidavit of service of the
Notice of Appeal on the 1st Respondent contravenes the provisions of
section 8 of the Notaries Public and Commissioners for Oaths Act, Cap. 12 R.E.
2002 thence rendering the affidavit of service of the notice of appeal
incompetent so it should be struck out.
Striking out the affidavit of service from the record of appeal, counsel
for the 1st respondent maintained, renders the record of appeal
incompetent under Rule 89 (1) (b) of the Court Rules, Cap. 141 Subs. R.E. 2002.
Rule 89 (1) (b) of the Court Rules, Cap.
141 Subs. R.E. 2002 provides for the record of appeal by stating, and we quote:
89 (1)For the
purpose of an appeal from the High Court in its original jurisdiction, the
record of appeal shall, subject to the provisions of sub-rule (3) countain
copies of the following documents –
(a) an index of all documents in the record……………
(b) a statement showing the address for service of
the appellants and the address for service furnished by the respondent and, as
regards any respondent who has not furnished an address for service as required
by Rule 79, his last known address and proof of service on him of the notice of
appeal.
It
is the contention of counsel for the 1st Respondent that the Notice
of Appeal was not served on the 1st Respondent. The omission to serve the 1st
Respondent with the Notice of Appeal as is mandatory under Rule 77 (1) of the
Court Rules, Cap. 141 Subs. R.E. 2002, renders the appeal incompetent so it
should be struck out with costs. On this,
he cited the cases of D. P. Valambhia
versus Transport Equipment Ltd. (1992) TLR 246 in which the Court held,
among other things, that –
……..Failure by the respondents to serve
a copy of the notice of appeal on the applicant through negligence and or
inaction is failure to take an essential step in the proceedings as required by
Rule 77 (1).
Similar
holdings were made in the cases of Salim
Sunderji versus Capital Development (1993) TLR 224; Ernest Joseph versus Damian
Ulaya, Civil Application No. 50 of
1999 (CA) at Arusha (unreported); and Festo
Kabakama versus Joseph Tigusane, Civil Appeal No. 66 of 1999, (CA) at Mwanza
(unreported).
Hence
for not complying with the provisions of Rule 77 (1) of the Court Rules, Cap.
141 Subs. R.E. 2002, counsel for the 1st Respondent prayed that the
incompetent appeal be struck out with costs.
In the alternative, in the event the
Court finds that the 1st Respondent was duly served with the Notice
of Appeal, counsel for the appellant contended that the Notice of Appeal was
served on the 1st Respondent out of time in contravention of the
provisions of Rule 77 (1) of the Court Rules, Cap. 141 so the appeal is
incompetent. He observed that as
reflected on Page 967 of the record, the Notice of Appeal was filed on the 27th
December, 2007 during the court vacation which ended on the 31st
January, 2008. The period of limitation
started running on the 1st January, 2008 so the Notice of Appeal had
to be served by the 7th February, 2008, counsel for the 1st
Respondent urged. By the 8th
February, 2008, the 7 days period for serving the Respondents had expired, he
maintained. Thence, on the alternative
ground, the appeal would still be incompetent so it should be struck out with
costs.
Mr. Rweyongeza, learned counsel for the
appellant conceded that the principles in the cases cited by counsel for the 1st
Respondent were correct but those cases are not applicable to the present
appeal. He submitted that the issue of
service of the Notice of Appeal is res
judicata for it was finally determined, in Civil Application No. 2 of 2008
between the same parties wherein it was held that the Respondents were served
on the 8th February, 2008 within time. There was no reference from the decision of
the single judge, so the issue of limitation is res judicata, counsel for the appellant contended.
Urging the Court to strike out the
alternative ground of the preliminary objection, counsel for the appellant contended
that the 1st Respondent should not be allowed to blow cold and hot simultaneously. On this, counsel for the appellant referred
us to Bindra on Pleadings and Practice, Chapter 1 at Page 20 wherein the
learned author states:
Lord Kenyon’s trite saying that a man
shall not be permitted to “blow hot and cold” is based on the elementary rule
of logic which finds expression in the well known maxim: “Alegans contraria non est audiendus” meaning
“He is not be heard who alleges things contradictory to each other………
It
is the view of Mr. Rweyongeza that once the 1st Respondent alleges
he was not served with the Notice of Appeal, he is estopped from pleading in
the alternative, that if he was served, then such service was time barred. The issue of limitation, counsel for the
appellant insisted, is res judicata
for it was settled in Civil Application No. 2 of 2008 the ruling of which the
respondents preferred no appeal.
On the objection relating to the alleged
defective affidavit of service of the Notice of Appeal on the 1st
Respondent, counsel for the appellant correctly observed in our view, that the
affidavit complained of is a mere format for service of summons. The form was designed by the learned Chief
Justice. It is not an affidavit as
stipulated under Order XIX of the Civil Procedure Act, Cap. 33 R.E. 2002. Under the circumstances we find no merit in
ground 1 of the preliminary objection.
The next issue is whether the Notice of
Appeal was served on the 1st Respondent, and if he was served, was such
service within the seven days statutory period stipulated under Rule 77 (1) of
the Tanzania Court of Appeal Rules, Cap. 141 Subs. R.E. 2002?
The record of appeal speaks for
itself. Page 968 shows that the Notice
of Appeal was only served on the 2nd Respondent, the Attorney
General. Whoever accepted service at the
Attorney General Chambers; rubber stamped and signed the Notice of Appeal to
acknowledge service of the Notice of Appeal.
There is no indication by signature,
rubber stamp or whatever, to prove that the 1st Respondent ever
received the Notice of Appeal. We are of
the firm view that if the 1st Respondent had been duly served with
the Notice of Appeal in person, or through his advocate, whoever received the
Notice of Appeal would have signed and such signature would be apparent to
prove service just as was the case with the Attorney General. On this, we are fortified by Page 971 of the
record of appeal on which either respondent accepted service of the letter to
the District Registrar applying for copies of proceedings, judgment and decree
for appeal purposes.
We wish to point out that Miscellaneous Civil Application No. 2 of
2008 before Kalegeya, J.A. was an application for extension of time. In that regard, the second preliminary objection
is not res judicata because the single judge considered not the service of the
Notice of Appeal, but the question of limitation period for instituting the
appeal. For that reason Miscellaneous
Civil Application No. 2 of 2008 is distinguishable from the preliminary
objection on service of Notice of Appeal on the 1st Respondent.
As the Notice of Appeal was not served
on the 1st Respondent, the appeal is incompetent for non-compliance
with the provisions of Rule 77 (1) of the Tanzania Court of Appeal Rules, Cap
141 Subs. R.E. 2002. We therefore uphold
the second preliminary objection. In the
result we strike out the incompetent appeal with costs. We certify the costs for two counsel.
DATED at DAR ES SALAAM this 2nd
day of March, 2009.
E. N. MUNUO
JUSTICE
OF APPEAL
N. P. KIMARO
JUSTICE
OF APPEAL
M. S. MBAROUK
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(J. MGETTA)
DEPUTY
REGISTRAR
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