20170810 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM (CORAM: MUSSA, J.A., MUGASHA, J.A., And MWAMBEGELE, J.A.) CIVIL APPLICATION NO. 73 OF 2014 AGNES FELICIAN NJABILI ............... ....................................... ...... APPLICANT VERSUS SPRING CllY GARAGE .......•.••...•....••.............•..••••.....•••...........•• RESPONDENT (Application for stricking out Notice of Appeal from the decision of the High Court at Dar-es-Salaam) (Kaduri, J.) dated the 5 th day of October, 2014 in Civil Appeal No. 56 of 2012 RULING OF THE COURT 2 nd & 1sth day of August, 2017 MUGASHA, J.A.: The applicant has brought this application seeking an order to strike out the notice of appeal in respect of Civil Appeal No. 56 of 2012 on account of respondent's failure to take essential steps in instituting the appeal within the prescribed time. The application is supported by the affidavit of DEOGRATIAS MWARABU, learned counsel for the applicant. The respondent did not file 1 an affidavit in reply to oppose the application. From the affidavital evidence, the matter arises from the decision of the High Court exerc_ising ., its appellate jurisdiction in its decision dated 5th October, 2012 whereby the· ... respondent was not successful having lost in the appeal in question. Aggrieved by the said decision, on 25 th October, 2012, the respondent · .. lodged notice of intention to appeal to the Court. When the application was called on for hearing, the respondent defaulted appearance despite being duly served with respective notice of hearing. As such, the applicant's counsel requested and we allowed the application to be heard in the absence of the respondent. At the hearing,,.··· the learned counsel for the applicant adopted in its entirety the notice of motion and contents of the affidavit. Paragraphs 3, 4, 5 and 6 of the applicant's affidavit in support it is inter alia deposed as follows: (3) That on· 31st October, 2013, the applicant was setVed with Notice of Appeal by the Respondent showing an intention to appeal against the decision given by the High . Court [Hon. Kadurl J.J on gh October, 2012. 2 ( 4) That soon after being se1ve4 the Applicants counsel lodged Notice of Address of Se1Vice as required by law. (5) That from the ti11 Novembe~ 2012 when the Notice of Address of Se1Vice was lodged and se!Ved upon to the Respondent no appeal to date has ever been lodged to this Court by the Respondent \, The learned counsel added that, neither has the respondent lodged an ./ appeal for the last five years since the notice of appeal was lodged nor filed an affidavit in reply to oppose the present application which connotes that the respondent is not desirous of prosecuting an appeal. As such, the learned counsel then prayed that the notice of appeal be struck out with costs. The essence of the present application is that, the respondent has not instituted an appeal ever since she instituted the notice to appeal to the Court. After filing the notice of appeal, the time schedule I . I I of filing an appeal is regulated by Rule 90 (1) and (2) of the Rules, ~ ....... : 7 stating as follows: 3 "Subject to the provisions of Rule 12~ an appeal shall be '> instituted by lodging in the appropriate registf'½ within sixty days of the date when the notice of appeal was lodged with - (a) a memorandum of appeal in quintuplicate; (b) the record of appeal in quintuplicate; ( c) security for the costs of the appeal ,·1-, Save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired to appeal there shall in computing the time within the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the .preparation and delivery of that copy to the appellant (2) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing. and a copy of it was served on the Respondent According 'to Rule 90(1) of the Court of Appeal Rules, 2009, an appeal must be instituted within sixty (60) days after the date of filing the notice of appeal. However, if one fails to file an appeal within the 4 prescribed period of sixty (60) days, he/she may rely on the exception for exclusion of time taken to obtain proceedings, judgment and decree if she/he had earlier on requested to be supplied with the documents in question. Since the respondent neither filed an appeal within sixty (60) days nor requested to be supplied with the proceedings, judgment and decree, she does not qualify to rely on the exception of the exclusion rule under Rule 90 (2) of the Rules. Since the respondent filed the notice of appeal on 25 th October, 2012, she ought to have instituted an appeal not later than 24th December, 2012. We are as such, in agreement with the applicant that, the respondent has done nothing essential to institute an appeal for the past five years. This connotes failure to take essential step to institute an appeal beyond the prescribed period of filing the same after the filing of the notice of appeal, which would justify striking out the Notice of Appeal (See DIRECTOR, MUKHESHI GLOBAL ESTATE LTD VS HAMIS NJAMA, Civil Application No. 172 of 2004 (unreported) and STEPHEN WASSIRA vs JOSEPH WARIOBA [1997] T.L.R 205, 5 -· ---- In view of the aforesaid, we allow the application and accordingly strike out the notice of appeal in respect of Civil Appeal No. 56 of 20l2 with costs. DATED at DAR-ES-SALAAM this 1oth day of August, 2017. K.M. MUSSA JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true c y of the original. u EPUTY REGISTRAR COURT OF APPEAL -- ..,,-~--. ,'•-~,,.___..--,,,..,/· ~-- ? u ,_ •... ~..,,,,. 6