CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. J.A.. KEREFU. J.A.. And NGWEMBE, 3.A.) CIVIL APPLICATION NO. 26/18 OF 2023 ASMART AHMAD MNYAMATU.............................................................. APPLICANT VERSUS TONGDA VENTURE LIMITED........................................................... RESPONDENT (Application for an Order to Strike out the Notice of Appeal from the Decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mganga, JJi dated the 27th day of October, 2022 in Labour Revision No. 252 of 2022 RULING OF THE COURT 17th & 24th July, 2024 NGWEMBE. J.A.: This is an application to strike out the notice of appeal lodged by the respondent on 3rd November, 2022 intending to appeal against the judgment and decree of the High Court of Tanzania (Labour Division) in Labour Revision No. 252 of 2022. The respondent was dissatisfied with that decision, hence the intended appeal to the Court. The instant application is premised on grounds displayed in the notice of motion brought under Rule 89 (2) of Tanzania Court of Appeal Rules (the i Rules). The application is supported by an affidavit affirmed by the applicant. Mainly, the applicant alleges that the respondent after lodging the notice of appeal, failed to take essential steps toward actualization of her appeal. At the hearing of the application, the applicant entered appearance in person and the respondent did not appear. As such the applicant prayed to proceed with the hearing of the application in the absence of the respondent. The Court being satisfied that the respondent was duly served with the notice of hearing through her advocate Abraham John Mkenda from Joabrah and Company Advocates on 9th July, 2024, granted the prayer made by the applicant. Consequently, in terms of Rule 63 (2) of the Rules, the hearing of the application proceeded in the absence of the respondent. Upon being invited to address the Court, the applicant adopted his notice of motion, affidavit in support of the application and his written submission to form part of his oral submission with a prayer to strike out the notice of appeal. The applicant's written submission is summarized briefly that the impugned judgment was delivered on 27th October, 2022 and the 2 respondent timely lodged her notice of appeal on 3rd November, 2022. At the same time, she wrote a letter to the Registrar of the High Court requesting to be supplied with certified copies of the High Court's proceedings on 9th November, 2022. Meanwhile, the Registrar of the High Court responded to the request through a letter dated 7th November, 2022, informing the respondent that the requested documents are ready for collection. He further argued that, since then, more than sixty days passed but the respondent has failed to take essential steps to lodge the intended appeal contrary to Rule 90 (1) of the Rules. He bolstered his submission with our decisions in Amin Adeni Ally v. Garta Mohamed, Civil Application No. 4 of 2009 and Paul Mushi v. Ally Mohamed, Civil Application No. 69/17 of 2017 (both unreported). Following the failure of the respondent to take essential steps, the applicant prayed the Court to strike out with costs the notice of appeal filed by the respondent on 3rd November, 2022. Considering the contents of the applicant's affidavit as amplified in his written submission, and upon perusal of the record of this application, we 3 are satisfied that, the respondent has failed to take essential steps towards instituting her intended appeal. It is settled law in our jurisdiction that rules of the court must be respected and adhered to lest it leads to miscarriage of justice. Whoever comes to court either to prosecute an appeal or an application must observe the rules and take essential steps timeously as prescribed by the rules or relevant law. In terms of Rule 83 (1) of the Rules, the respondent after lodging the notice of appeal, was under obligation to comply with Rule 90 (1) of the Rules to institute her appeal within sixty days from the date of filing the notice of appeal. The Rule is clear that the time spent on waiting for the certified documents from the High Court is excluded. In this application the exclusion of time is not applicable because the record indicates that, the Registrar of the High Court notified the respondent on availability of those documents on 7th November, 2022, two days prior to her requesting letter dated 9th November, 2022. Therefore, the respondent had no excuse not to comply with the requirement of Rule 90 (1) of the Rules. The Court has, in many decisions repeated the common position of the law that compliance to the laid down rules are mandatory to the ends of justice. See: Amina Aden Ally (supra) Mrs. Kamiz A.M. D Kermal v. The registrar of Buildings and Another (1988) TLR 199; Mawazo Abed Rija v. Joel Jelili & others, Civil Application No. 248/11 of 2017 [2018] TZCA 605 (19 February 2018). In the instant application, it is, indeed clear that the respondent herein has failed to comply with the provision of Rule 90 (1) of the Rules. Since the date of filing the notice of appeal to date is more than five hundred days without lodging the intended appeal. Unless the applicant had strong reasons in the contrary, otherwise the intended appeal cannot be actualized. Following the discussion above, the fate of the respondent's notice of appeal, in terms of Rule 89 (2) of the Rules, is to strike out for failure to take essential steps towards actualization of appealing to the Court. In totality, we find the respondent as the intended appellant failed to take essential steps after lodging the notice of appeal. For her default in instituting the appeal timeously, in terms of Rule 89 (2) of the Rules, the notice of appeal is hereby struck out with costs. DATED at DAR ES SALAAM this 23rd day of July, 2024. G. A. M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 24th day of July, 2024 in the presence of Applicant appeared in person and absence of the Respondent, is hereby certified as a true copy of the original.