20131022 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: LUANDA, l.A., MJASIRI, J.A., And MUSSA, l.A.) CIVIL APPLICATION NO. 58 OF 2010 ::~~~ss~::::~ 0 } ........................................................ APPLICANTS VERSUS STEPHEN H. MWAMKOA ........................................................ RESPONDENT {Application to strike notice of appeal from the decision of High Court at Dar es Salaam) {Mwaikugile, J.) Dated the 28 th day of July, 2009 In Civil Case No. 19 of 2009 RULING OF THE COURT th 23 rd September & 24 October, 2013 MUSSA, l.A.: The applicants seek an order of the Court striking out a Notice of Appeal filed by the respondent on account of failure to take some essential steps. The application is by a Notice of Motion taken out under the provisions of Rule 89(2) of the Tanzania Court of Appeal Rules (the Rules). The same is accompanied by an affidavit sworn by the second applicant, as well as written submissions in support drawn and filed by TJM Law Offices. 1 J et.. As it turns out, the application is resisted by the respondent in his affidavit in reply and, additionally, the respondent has just as well enjoined written submissions in opposition. To facilitate a quick appreciation of the points of contention, a concise summary of the background would suffice. In the High Court sitting at Dar es Salaam (Mwaikugile, J.), the applicants instituted a suit against the respondent over a sale agreement involving a plot of land. In an exparte judgment handed down on the 19th November, 2007, the applicants won the claim in the sum of shs. 17,000,000/= plus a quantified sum of Shs. 8,000,000/= as general damages. Apparently, the respondent set off in quest for setting aside the exparte verdict whilst he contemporaneously sought an order of the trial court for stay of execution of its decree. In a Ruling delivered on the 28th July, ·2009 the trial court was disinclined and dismissed the application. Soon after, on the 30th July, 2009 the respondent penned a letter to the Registrar, as it were, to express his desire to prosecute an appeal and to request to be furnished with certified copies of the trial court proceedings, Ruling and a drawn order. The letter which was acknowledged by the registry of the Court on the 4th August, 2009 was copied to TJM law offices, that is, the applicants' Advocates. In the meantime, on the 30th July, 2009 2 the respondent had, actually, duly lodged a Notice of Appeal. Henceforth, nothing happened, whereupon the applicants were prompted into the present course of action. When the matter was called on for hearing, the applicants had the services of Mr. Thomas Massawe, learned Advocate. The respondent who was duly served defaulted appearance, following which we allowed learned counsel for the applicants to proceed exparte on the authority of Rule 63(2). In response, Mr. Massawe fully adopted the Notice of Motion, the accompanying affidavit, as well as the written submissions in support of the application. The gist of complaint is that in the aftermath of mounting the Notice of Appeal, the respondent has not taken any essential step towards the prosecution of the appeal. As hinted upon, the respondent defaulted appearance but, if we may cull from his affidavit in reply, this is what he stated on oath:- ... that to date no formal letter has been written to me from the Registrar informing me that the requested documents for appeal purposes are ready for collection. Even my efforts to make a follow up 3 have proved futile as the file is untraceable at the High Court. Before us, Mr. Massawe conceded that the respondent's letter of request for proceedings dated the 30 th July, 2009 was, indeed, duly served upon them and; counsel did not quite go so far as to refute the respondent's contention that, to date, the Registrar has neither supplied the requested certified copies of proceedings nor issued a certificate under Rule 90(1). Thus, in essence, the issue before us is whether or not the respondent can be held responsible for the delay in obtaining the requisite documents.· In this regard, we should do no more that reiterate what was categorically stated with respect to the defunct Court of Appeal Rules, 1979 in the case of Transcontinental Fowarders Ltd v. Tanganyika Motors Ltd and Others [1997] TLR 328:- ... the present respondent who had applied to the Registry for a copy of the proceedings sought to be appealed against and had not been furnished with anr✓ had complied with the Rules by copying his letter to the relevant parties... There was no legal provision requiring him to keep reminding the 4 Registry to forward the proceedings and once Rule 83 was complied with, the intending party was home and dry. A similar stance was taken in the unreported Civil Application No. 53 of 2012 - Dowans Tanzania Limited and Another v. TANESCO. In the circumstances, since the applicants have not raised any substantial cause suggestive that the respondent failed to comply with the Rules, it automatically follows that theirs is a premature quest. Accordingly, this application fails and is dismissed with costs. DATED at DAR ES SALAAM this 22 nd day of October, 2013. B.M. LUANDA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ F. J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 5