20031107 TZCA Zanzibar 1

- 4 4- IN THE COURT FO APPEAL OF TANZANIA AT ZANZIBAR (CORAM: MROSO, J.A., MUNUO, J.A.ANDNSEKELA, J.A.) CIVIL APPEAL NO. 72 OF 1998 - BETWEEN A LI 'TtJA.I AI.11 ...................... ...................... APPELLANT AND SUWEDI MZEE SUWEDI ........................ RESPONDENT (Appeal from the Decision of the High COurt for Zanzibar at Vuga) (Dourado, J.) dated the 25 ' day of March, 1997 in CivilAppeal No. 38 of 1996 • RULI N G MUNUO, J.A. This appeaLarises Irom the- decision of Dourad, J. in Civil Appeal No. 38 of 1996 in the High Court Of Zanzibar at Vuga. Mr. Mbwezeleni, learned advocate for the respondent, brought a preliminary objection under, Rule 100 of the Court Rules on the ground that "the High Court decision is not appellable after the appellant's application for review of the same judgement and the appeal is an illegal shopping forum". 1.- 2 Dr. Lamwai, learned advocate, represented the appellant Tie conceded that there was an application for review which the High Court did not determine but stated that the learned Judge strongly recommended that an appeal be instituted, hence the present appeal. The parties also concede that the proceedings for review are not in the record of appeal. In the absence of a specific order reflecting the determination of the review, we are of the settled mind that the present appellant / abandoned the said review application and pursued this appeal. Be it as it may, in the course of arguing the preliminary objection, Mr. Mbwezeleni, learned advocate, observed that there is, in the first place, no valid Notice of Appeal so the appeal is incompetent. Dr. Lamwai, on the other hand, contended that there is an Implied Notice of Appeal because- although- the Notice of Appeal of the 4. th April, 1997 expired when the appellant failed• to institute the appeal within the statutory period of sixty. - days, and only instituted the appeal after the High Court extended the period of appeal on the 29th April, 1998, because the respondent did not apply under Rule 82 of the • Court Rules to strike out the appeal for failure to take an essential I '4 3 step, the Notice of Appeal remains, valid to-date. Dr. Lamwai, nonetheless, agreed thatthe said Notice of Appeal is deemed withdrawn but he maintained that since the said Notice of Appeal has not been struck out by the Court, it is still valid and the appeal is competent. With respect, we do not agree We think the Notice of Appeal expired when the period of appeal expired before the appellant instituted the appeal causing the appellant to file Miscellaneous Civil Application No. 15 of 1998 in the High Court of Zanzibar, seeking extension •of time and leave to appeal to this Court. We are fortified in this decision by the decision in Dr. William Shija versus Dr. Fortunatus Lwanyantika Masha, Civil Reference No 12 of 1997 ) Court of Appeal of Tanzarna (1997) TLR 213 in which the Court dealt with a similar issue of a Notice of Appeal being deemed withdrawn under Rule 84 Of the Court Rules after the appeal was struck out., The Court observed at Pages 216 to 217 - with respect, we are in agreement that when Civil Appeal No. 43 of y 4 1996 was struck out, the Notice of Appeal was also struck out. In that situation, it is our view that if it is still so desired to appeal, a fresh application has to be filed in the High Court seeking extension of time in which to give Notice of. Appeal. • .. .As it turned out in this case, the Notice of Appeal, a necessary requirement under Rule 76 which was lacking would not have come to light if the matter was not raised in this Court .... we do not accept that there was an implied application for extension of time to file a Notice of Appeal. This is because, in situations such as this where Rule 76 of the Court Rules explicitly provide for Notice of Appeal as a necessary condition, compliance with it cannot be attained by implication. It has to be done in fact and nothing short of that . . . . I 5 • S In this case there is no valid Notice of Appeal and the expired Notice of Appeal cannot be renewed, by implication.. For these •reasons we strike out the Notice of Appeal which was deemed withdrawn under Rule 84 of the Court: of Appeal • Rules, 1979 after the period of limitation 'expired. ' After, , striking out the Notice of Appeal, the appeal too has to be, and is hereby struck out for it is incompetent. S Since the ' i-espondent did not raise the objection relating to lack of a Notice of Appeal in the Notice of Preliminary Objection, we make no order for costs.' DATED at ZANZIBAR this 7th day of November 2003 . / J.A.MROSO / JUSTICE OF APPEAL S S E'.N.MUNU.'O 'JUSTICE OF 'APPEAL • S • • H.R'. NSEKELA S JUSTICE OF APPEAL I certifr that this is a true copy of the original. • • , • (F.L.K.'WAMBALI) DEPUTY REGISTRAR • •