| dc.description | CONTINENTAL SERVICES LIMITED VERSUS CHINA RAILWAY JIANCHANG ENGINEERING CO. (T) LIMITED COURT OF APPEAL OF TANZANIA
(CORAM. WAMBALI. J.A.. KEREFU. J.A And MWAMPASHI. J.A) CIVIL APPEAL NO. 184 OF 2018
(Appeal from the Judgment and Decree of the High Court of Tanzania,
Commercial Division at Dar es Salaam dated the 16th day of April, 2018 in Commercial Case No. 153 of 2013)
Civil Procedure and Practice – Application for copies of proceedings – Certificate of delay – effects of defective certificate of delay – computation of time of limitation
On 18th February, 2022, the Court adjourned the hearing of the appeal to a date to be fixed by the Registrar. Basically, the said adjournment was prompted by the fact that the certificate of delay in the record of appeal contained some apparent errors which had a bearing on the time limit of instituting an appeal. Mr. Elvaison Maro, the learned advocate for the appellant therefore prayed for leave of the Court to approach the Deputy Registrar of the High Court, Commercial Division, to rectify the errors and thereafter lodge a supplementary record of appeal containing a proper certificate of delay. As there was no objection from Mr. Dickson Sanga, the learned counsel for the respondent, the Court granted the appellant the requisite leave and ordered that a supplementary record of appeal containing the rectified certificate of delay be lodged within sixty (60) days from the date of the order, which was, 18th February, 2022. The appellant fully complied with the order and lodged the supplementary record of appeal on 19th April, 2022 and served it upon the respondent. Subsequently, the respondent through her learned counsel lodged the notice of preliminary objection on 29th April, 2022 to the effect: that the Rectified Certificate o f Delay at page 12 o f the Supplementary Record of Appeal is incorrect, improper, and erroneously certified. Therefore, the appeal is time barred and liable to be strike out with costs. On the ground that; (i) There is no letter issued by the Registrar to notify the Appellant that the requested proceedings were ready for collection"
Held;
i. The Registrar must state in very dear terms that the days to be excluded in computing the period of limitation are those from the time when the appellant requested for copies o f proceedings to the date he notified him that the documents are ready for collection.
ii. The letter from the Registrar of the High Court is intended to facilitate the issuance of a certificate of delay that reflects a verifiable and definite latest cut off date from which the sixty days within which to lodge an appeal under rule 90 (1) of the Rules, starts to run.
iii. it is incorrect to say that whatever the Registrar of the High Court indicates in the certificate of delay is correct, for the dates appearing on it should be borne out of the record and in the absence of such record, the respective certificate of delay cannot be relied upon for containing unverifiable information
Appeal strike out
Laws referred to
i. Rule 90(1) of the Tanzania Court of Appeal Rules, 2009
Cases cited
i. Henry Zephryne Kitambwa v. The President of the United Republic of Tanzania and Two Others, Civil Appeal No. 114 of 2020.
ii. made to another decision of Tanzania Telecommunication Co. Ltd.v. Stanley S. Mwabulambo, Civil Appeal No. 26 of 2017 (unreported).
iii. The Board of Trustees of the National Social Security Fund v. New Kilimanjaro Bazaar Limited, Civil Appeal No. 16 of 2004
iv. Fauzia Jamal Mohamed v. Lilian Onael Kileo, Civil Appeal No. 203 of 2016 | en_US |
