20091016 TZCA Dodoma 2

IN THE COURT OF APPEAL I OF TANZAN:IA ! AT DODOMA : I CIVIL APPLICATION NO. 4 2009 AMINA ADEN ALLy ...................... II.................... ..l .APPLICANT VERSUS : I , GARTA MOHAMED ........................................... R SPONDENT l ~ (An Application for striking out Notice of Appeal from the t I Decision of the Resident Magistrate with Extended Juris~iction) · I (Per S.B. Lukelelwa, PRM - Extended Jurisdiction) I .I . th Dated the 25 day of February, 1999 In I Civil Appeal No. !2 of 1999 BWANA, J.A. This is an application by Amina .A:den Ally, to stri :e out a Notice of Appeal pursuant to the provisionJ of Rule 82 of, the Court of Appeal Rules (The Rules). It is the !applicant's averinent that the Respondent, Garta Mohamed, has failJ to take essentill steps within I a prescribed period. The applicant's averment is supp,orted by her affidavit. I I I ! According to the applicant's affid:avit, the Resider,t Magistrate with Extended Jurisdiction delivered his judgment on :25 February, . I ·, I 1999. The Respondent herein lost. Aggrieved by that: decision, she I I lodged a Notice of Appeal to this Courton 1 March, 19~9. Since that I I I i time to date, she has not taken any fyrther steps in t~e prosecution ' I I of her appeal. She did not lodge her appeal in the appropriate I I . i registry within sixty days as required under Rule 83 (1) of the Rules. I I There is no evidence that she did invoke the provisioms of Rule 83 ! I I (2) by writing to the Registry of this: Court applying; for a copy of ! i I I proceedings, judgment, decree or order and serving a copy of such letter to the now applicant. Each time the applicant attempted to execute th~ award by the I I Resident Magistrate - Extended Jurisdiction, the respondent claimed I I that her appeal is still pending before this Court, henc~ frustrating all ! I I efforts to have this matter concluded once and for all. 1 It is Mr. 2 I I I I Nyangarikas's (learned Counsel for the Applicant) su8mission that this application be granted with costs of the basis that i~ is now over ten years without any action being taken by the respondent to I I prosecute her appeal. The respondent was served to attend today's hearing but did not enter appearance; He submitted. It is not in dispute that it is now over ten years simce the Notice I I . of Appeal was lodged by the Respondent herein. It lis also not in I I dispute that through out this period of ten years, the Respondent has I I not taken further steps in the prosecution of her appeal or to do so within the prescribed time. There is t proof that in/deed she has taken such steps. It is settled that Rules of court must be respectetJ and adhered I I to least it leads to miscarriage of justice. He who comes to court to prosecute a case or an appeal must s~e to it that esslntial steps are taken within the time as prescribed Jy the relevant l~w. Applying I : delaying tactics leads to nothing less than causing Lmmecessary harm I i to the adverse party. 3 I I The above views are very relevant to this matter. According to 1 Rule 83 (1) the respondent was undlr obligation to: institute her appeal by lodging relevant documeJ within sixty d~ys from the date she filed her Notice of Appeal. Thik has not been domplied with. It is now over ten years without her iking such esse~ti.al steps. If there were causes for her delay, she should have written to the registry with a copy to the applicanJ, requesting fo~ extension of time. There is no proof that she did taJe such essential! steps. I I I This Court had an opportunity to/ consider a situ:tion similar to the present application. In the case ofi Mrs. Kamiz A.M;.o. Kermal vs. The Registrar of Buildings and Anotht (1988) TLR i99, I the Court ' stated: 'f'.ln appeal to the Court of Appeal must~ be I : instituted within 60 days of the date when the I notice of appeal was lddged.. ; The ttme I : required for the preparation and deliverx of proceedings.... shall be exlluded in computng 4 i I I I I I the time within which an aJpeal to the coJ(1 of Appeal is to be institutet if an applicatiJn for that copy had been iade within Jo days of the decision to aJeal ... '7emphalis i ! provided). I As noted earlier, the respondent did not compl'y with all the foregoing requirements as stated in t~e Kamiz case. it was further held (in the same Kamiz case) thus:- Ii I I I . I "Under rule 8 of the Cour of Appeal Ru~es, failure to institute an appeal within the prescribed 60 days ren1er.s the appial . I I incompetent and furthermore, the appellant is deemed to hJve withdraw)his appeal "(emphasis providJ). i I I I The above finding of the Courtj is further fortif1,ed by Rule 84 ! I which provides: - : I I ! 5 I 'Tf a party who has lodged( notice of app~a/ fails to institute an appeal within appointkd I I ! I time- I I I I (a) he shall be deemed to have withdrawn his I I notice of appeal and shall unless the co&rt orders otherwise/ be liable to pay the costs 1of l I any persons on whom thi notice of appta/ was served arising from that failure I to '/ I J I institute the appeal. Ij /bt l j ''/, h . l j ' / · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · l emp as1s l I provided). ; j I I The present applicant came before this Court', invoking the I I provisions of Rule 82 which state:- j I '/ I "a person on whom a njtice of appeal has I I been served may, at any time/ either be(ore or after the institutiof of the app1al, apply to the court to strikd out the noticJ or I I the appeal, as the case may be, on the I 6 " . ground that no appeal lies or that some essential step in the procledings has 'nJ been taken or has not beln taken wit'hii the prescribed time." (embhasis provider) In the instant matter, it is evident that the respondent herein has not complied with the provisions Jr rule 83 (l} a~d (2) by not I ' ' instituting her appeal within the preslribed time. ~er Notice of Appeal, therefore, is deemed to havJ been withdr~wn. Further .I . ' and pursuant to Rule 84 (a), the said respondent 1s to pay for costs I of this appeal and this application. It i) ordered accord·hgly. Dated at Dodoma, this 16th day of October 2009 S. J. BWA~A 7 , I