ALOYCE MSELLE VS THE CONSOLIDATED HOLDING CORP

Civil Appeal No. 11/02 - Aloyce Mselle vs The Consolidated Holding Corp. CAT at Arusha (Ramadhani, J.A,).

- Mr. Maruma submitted that explanation by the appellant should have been by an affidavit . We agreed with him. But if it is sauce for the goose it is sauce for the gander. Mr. Maruma gave evidence from the bar that his Chambers did not receive copies of those two documents and he also attacked the EMS receipt. But Mr. Maruma cannot say anything about the EMS as it was not addressed to his chambers. It is only the respondent who could have done so through an affidavit.

- Mr. Maruma referred us to Martin Wilson & Another vs Dimetria Mosha, (CAT) Civil Appeal No. 62 2001, where this Court refused to accept a dispatch book as proof of service because it did not indicate what documents were served to the other party.

- We stand by that proposition but, in or opinion, it does not apply to postal receipts. A dispatch book normally bears the name of the addressee and also a brief decription of what is sent. For example, in the case of a letter, the reference number would be cited. Postal receipts, however, do not describe the contents of an envelope or of a parcel sent.

- There are two pointers here that the appellant served copies of the two documents on the respondent. One, each of the two documents indicates athat a copy was to be served on the respondent, and that shows that the appellant was aware of that requirement. Two, there is an EMS receipt that the appellant posted a parcel to the respondent on 25th May, 1998 while the two documents were dated 19th May, 1998. As we commented earlier, the respondent did not swear an affidavit saying that they did not receive the EMS. The respondent did not contradict these two prima facie pieces of evidence. We, therefore, dismiss grounds one and three of the preliminary objection.

- We agree with Mr. maruma that there is an unbroken chain of outhorities of this Court to the effect that wrong citation of a provision of law under which an application is made renders that application incompetent. Such decisions include: NBC vs Sandrudin Meghji Civil Application No. 20 of 1997; Rukwa Autoparts Ltd vs Jestina G. Mwakyoma Civil Application No. 45 of 2000; and Citibank (T) Ltd vs. TTCL and others Application No. 65 of 2003. So, MCHOME, J should not have granted leave to appeal.

- We therefore, set aside the leave to appeal and consequently we quash the purported notice of appeal for lack of an item under Rule 89 (2) (i).