COURT of Appeal has rejected Mohamed Enterprises Tanzania Limited’s (MeTL) petition against 100m/- compensation to Tabora resident, Mussa Chekechea, for alleged negligence leading to his father’s death.
Chekechea’s father was allegedly instructed to collect money physically from the company clients in Urambo to Tabora for banking, but the employer never provided security for escort, and as a result bandits attacked and killed him on the way.
Justices Mbarouk Mbarouk, Stella Mugasha and Jacobs Mwambegele ruled against MeTL, upholding one ground of preliminary objection successfully argued by Advocate Mugaya Mutaki, for Chekechea son, the respondent in the appeal.
In the ground of objection, the respondent had alleged that MeTL, the appellant, did not serve a copy of the record of appeal to the respondent, as required by Rule 97 (1) of the Court of Appeal Rules, before or within seven days after lodging the memorandum of appeal in the appropriate registry.
The justices noted that under Rule 86 (1) of the Rules, every person on whom a notice of appeal is served is required within 14 days after service of the notice to lodge in the appropriate registry and serve the appellant of full and sufficient address.
In the case, they said, it was not prudent for the appellant to serve the respondent with the memorandum of appeal through the address stated in the plaint (RMK Advocate), as he was already served with the notice of appeal through Mtaki Advocate.
According to the justices, the address in the plaint was for the purpose of service in matters relating to the trial before the High Court and not the appeal before the Court.
They stated that since it was the notice of appeal which puts the appeal process in motion after it is served to the respondent, Rule 86 of the Rules directs the respondent to lodge to the Court registry the address through which to effect the service of documents relating to the appeal.
In the absence of any other address apart from Mtaki Advocates through which the respondent was served with the notice of appeal, that was the available respondent’s address known to the appellant ever since he served the notice of appeal to the respondent.
“Therefore, the appellant ought to have served the record of appeal to the respondent through Mtaki Advocate and not RMK Advocate who represented the respondent at the trial,” the justices ruled.
They further noted that since Dr Masumbuko Lamwai, appearing for MeTL, had not contested that Mr Mtaki represented the respondent in two other applications ancillary to the appeal, it was their view that he was pretty aware that in the appeal the respondent appeal was through Mtaki Advocate. They, therefore, agreed with Mr Mtaki that the record of appeal was not served to the respondent.
Since the record of appeal was filed on June 11, 2015 and it was not served within seven days as required by law, the appeal is rendered incompetent. In the High Court, the respondent instituted against the appellant a suit, claiming 500m/- general damages.
The basis of the claim was the alleged negligence to employ security guards to escort his late father, Shaban Hamis Chekechea. The respondent alleged that his father was on January 5, 2007 shot to death by armed robbers when transporting 70m/- belonging to the appellant, which was as well stolen.