CHRISTINA MORIS VS RASHIDI SHABAN CIVIL APPLICATION NO 822 OF 2023

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (C.ORAM: MUGASHA. J.A., MWAMPASHI. J.A.. And NGWEMBE. J.A/l CIVIL APPLICATION NO. 822 OF 2023 CHRISTINA MORIS...................................................................APPLICANT VERSUS RASHIDI SHABAN................................................................. RESPONDENT (Application to strike out a Notice of Appeal from the Decision of the High Court of Tanzania (Bukoba District Registry) at Bukoba) (Mwipppo, 3 dated the 26th day of August, 2022 in Civil Appeal No. 31 of 2022 RULING OF THE COURT 19th & 21st March, 2025 MWAMPASHI. J.A.: Civil Appeal No. 31 of 2022 which was preferred before the High Court of Tanzania at Bukoba by the respondent herein, Rashid Shaban, to challenge the decision of the District Court of Muleba in Civil Appeal No. 04 of 2022, was dismissed on 26.08.2022. Displeased and desirous of appealing against the dismissal of his appeal, the respondent applied to the Registrar of the High Court for certified copies of proceedings, judgment and decree for appeal purposes on 29.08.2022. He also duly lodged a notice of appeal on 30.08.2022. To date, no appeal has been instituted by the respondent. This has triggered the institution of the instant application by the applicant, Christina Moris, for an order to strike out the notice of appeal. The application is brought by way of a notice of motion predicated on rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is supported by an affidavit sworn by the applicant. In resistance, there is an affidavit in reply sworn by Mr. Frank Kalory John, learned advocate for the respondent. According to the notice of motion, the application is premised on a single ground that, essential steps have not been taken within the prescribed time to prosecute the intended appeal. When the application was called on for hearing before us, the applicant appeared in person unrepresented whereas, the respondent had the services of Mr. Frank Kalory John, learned advocate of Kabunga & Associates Advocates. Having adopted her affidavit, the applicant prayed for the notice of appeal to be struck out. She argued that, despite both parties being supplied with all necessary documents for appeal purposes, since September, 2022, the respondent has failed to prefer his intended appeal. After the applicant had intimated that the documents for appeal purposes were supplied to both parties since September, 2022, Mr. John denied to have ever been supplied with the said documents. The denial by Mr. John and the persistence by the applicant that both parties have already been supplied with the documents in question since September, 2022, prompted us, for interest of justice, to call for relevant evidence proving whether the parties were supplied with the said documents or not. Brought to us by the Registrar, was an extract from the Register for issuance of copies of judgments, proceedings, decrees and other related documents (the Register), in which it was indicated and revealed that the respondent through one Mr. William Vedasto was supplied with the certified copy of the relevant judgment on 20.09.2022 and further that on 23.09.2022, he was supplied with the certified copy of proceedings and decree. Although Mr. John acknowledged that Mr. William Vedasto is his law clerk from Kabunga & Associates Advocates, he adamantly contended that the documents in question had never been supplied to the respondent. He further argued that the respondent duly applied for the documents on 29.08.2022 and that as 90 days expired without being supplied with the requested documents, several reminder letters were written and sent to the Registrar who did not respond. It was contended that, to date, the Registrar has not notified the respondent that the requested documents are ready for collection. Mr. John also wondered why, if the documents were really supplied to the respondent, the Registrar has not responded to the reminder letters by informing the respondent that the requested documents had already been supplied to him through Mr. William Vedasto. Mr. John insisted that since the Registrar is yet to notify the respondent that the requested documents are ready for collection then, the respondent is not to blame. He argued that the respondent has not failed to take essential steps in furtherance of his intended appeal and further that, there is no good cause shown for the notice of appeal to be struck out. He thus, prayed for the application to be refused. In her brief rejoinder, the applicant reiterated her contention that the relevant documents were supplied to both parties since September, 2022 and that for more than two years the respondent has failed to file his intended appeal while all the relevant documents for appeal purposes are in his possession. She thus, prayed for the application to be granted by striking out the notice of appeal in question. Having heard the arguments for and against the application, the issue for our determination is simply whether the respondent has failed to take essential steps in furtherance of his intended appeal warranting the notice of appeal to be struck out. Our starting point is rule 89 (2) of the Rules which provides that: "Subject to the provisions o f subrule (1), any other person on whom a notice o f appeal was served or ought to have been served may at any time, either before or after the institution o f the appeal, apply to the Court to strike out the notice o f appeal or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time." Under rule 89 (2) of the Rules, a notice of appeal can be struck out on either of the following three grounds; One, that no appeal lies, two, that some essential step in the proceedings has not been taken and three, that an essential step has been taken but not within the prescribed time. As we have alluded to earlier, the ground raised in support of the application is that essential steps have not been taken within the prescribed period of time in filing the intended appeal. According to rule 90 (1) of the Rules, an appeal must be instituted within sixty days of the date when the notice of appeal was lodged. However, where an application for a copy of the proceedings has been made within thirty 5 days of the date of the impugned decision, the time spent for the preparation and delivery of the requested copy of the proceedings, as may be certified by the Registrar of the High Court, is excluded from the period of sixty days within which the appeal is to be instituted. In the instant case, the impugned decision having been rendered on 26.08.2022, the respondent duly applied for the copy of the proceedings for appeal purposes on 29.08.2022. As exhibited by the extract from the Register, the requested certified documents were supplied to the respondent's advocates through Mr. William Vedesto, who as acknowledged by Mr. John is a law clerk to Kabunga & Associates Advocates on 20.09.2022 and 23.09.2022. Because there is proof to our satisfaction that by 23.09.2022, all the requested documents for appeal purposes, had been supplied to the respondent then all what the respondent was supposed to do was to institute his appeal. By that time, that is, 23.09.2022, the respondent was still within the prescribed period of sixty days from 30.08.2022 when the notice of appeal was lodged. If the period of time remaining after being supplied with the requested copy was short, the respondent might have approached the Registrar for a certificate of delay in which the period of time spent for preparation and delivery of the requested copy, that is, from 29.09.2022 when the said copy of the proceedings was requested, to 23.09.2022 when complete record was supplied to him, could have been excluded. Under the circumstances of this case where the copy of the proceedings for appeal purposes was supplied to the respondent before the expiry of sixty days which is the prescribed period within which a competent appeal has to be instituted, the letter by the Registrar notifying the respondent of the readiness of the copy for collection was inconsequential. It was of no use whatsoever. The reminder letters purportedly sent to the Registrar requesting to be supplied with the documents were redundant because the documents had already been supplied. In saying so we are however, not condoning the Registrar's failure to respond to the respondent's reminder letters. As complained by Mr. John, the Registrar was duty bound to respond to the reminder letters by informing the respondent that the documents had already been supplied to him since 23.09.2022. In that regard, since the requested copy of the proceedings had already been supplied to the respondent since September, 20202, the argument by Mr. John that the respondent has not instituted his intended appeal because he is waiting to be supplied with the requested copy, is baseless. Thus, the respondent has failed to institute his intended appeal within the prescribed period of time and the notice of appeal is liable for being struck out as sought in the notice of motion. Consequently, in terms of Rule 89 (2) of the Rules, the notice of appeal lodged by the respondent on 30.08.2022 against the decision of the High Court of Tanzania at Bukoba, in Civil Appeal No. 31 of 2022, is hereby struck out. Order accordingly. DATED at BUKOBA this 20th day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 21st day of March, 2025 in presence of Applicant in person and Mr. Frank Kalory John, learned counsel for the Respondent, is hereby certified as a true copy of the original.