Africa-Press – Tanzania. THE Court of Appeal has rejected with costs the appeal lodged by businessman Venance Mwakibinga, demanding over 800m/- compensation following the government’s decision to confiscate his 867 pieces of timber.
Justices Ferdinand Wambali, Lugano Mwandambo and Lilian Mashaka ruled against the businessman, the appellant, after holding that the appeal lodged against the Chief Executive Officer Tanzania Forest Service Agency and Attorney General, the respondents, was incompetent.
“The appeal is incompetent for being lodged out of sixty days prescribed by Rule 90 (1) of the (Court of Appeal) Rules. Consequently, we strike out the appeal. Having regard to the circumstances of appeal in which parties duly made preparations for the hearing, we grant costs to the respondents,” they ruled.
Initially, during hearing of the appeal, it was categorically agreed by the Court and the parties that the certificate of delay issued by the Registrar of the High Court, to exclude the number of days utilized by the appellant to obtain a copy of certified proceedings for appeal process, was defective.
Particularly, the justices said, the defectiveness centered on the failure to include the name of the Chief Executive Officer Tanzania Forest Service Agency among the parties and making reference to a wrong date on, which the appellant applied to be supplied with the certified copy of proceedings of the High Court.
As a result, the appellant’s counsel prayed to be allowed to approach the Registrar of the High Court for rectification of the certificate of delay by including the missing letter dated February 13, 2017 and, thereafter lodge a supplementary record of appeal, in terms of Rule 96 (7) of the Rules.
However, before determining such an issue, the justices noted the existence of some important documents, which have a bearing on the validity of the certificate of delay.
Such documents are exchequer receipts exhibiting the dates in which the appellant collected the certified copies of proceedings. According to them, such receipts, which were not in the record of appeal, showed that July 28, 2017 was the last date in which the Registrar had indicated to be based in excluding number of days in calculating the period of limitation in accordance with Rule 90 (1) of the Rules of the Court of Appeal.
It was their view that even if the Court would have granted the appellant leave to approach the Registrar of the High Court to rectify the defect in the certificate of delay still, the appeal which was lodged on September 26, 2017 would be taken to have been lodged out of 60 days prescribed by Rules.
The advocate for the appellant had readily conceded that in the light of the said documents found in the original trial court’s record that the appeal was time barred and that the intended rectification of the certificate will not serve any useful purpose to salvage the limitation of time of the appeal.
To that end, he categorically prayed that the appeal be struck out with no order as to costs. The State Attorneys, who appeared for the respondents, graciously welcomed the concession of the appellant’s counsel that the appeal was time barred for being supported by an invalid certificate of delay.
They, thus, urged the Court to strike out the appeal, but pressed for costs to be awarded to the respondents. On their part, the justices could not hesitate to agree with the parties that as the certificate of delay is invalid could not be rectified to make it be relied upon in computing time.
“As such, the defect goes to the root of the document itself and the competence of the appeal. It is therefore not doubted that the appeal is incompetent for being lodged out of sixty days prescribed by Rule 90 (1) of the Rules,” they said.
The justices emphasized that an incurably defective certificate of delay which portrays erroneous facts on what really transpired in course of applying and obtaining certified copy of High Court proceedings could not be relied upon to support an appeal preferred after expiry of prescribed period of limitation.
Mr Mwakibinga sued the Chief Executive Officer Tanzania Forest Service Agency and the Attorney General before the High Court, claiming for payment of 39,015,000/-being purchase price of 867 timbers which were confiscated, 768m/- being loss of profit, general damages, interest and cost of suit.
