CIVIL APPEAL NO

AT DODOMA (CORAM: KEREFU. J.A.. FIKIRINI. J.A. And MASOUP. J.A.l CIVIL APPEAL NO. 114 OF 2022 CITIBANK TANZANIA LIMITED 1st APPELLANT GEOFREY DANIEL MCHANGILA 2nd APPELLANT VERSUS GAPCO TANZANIA LIMITED 1st RESPONDENT ALCHEMIST ENERGY TRADING DMCC 2nd RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania (Commercial Division), at Dar es Salaam. (Nanqela, J.^ dated the 13th day of December, 2021 in Miscellaneous Commercial Application No. 126 of 2021 RULING OF THE COURT 12th &18th February, 2025 FIKIRINI, J.A,: The appellants, Citibank Tanzania Lin ked and Geofrey Daniel Mchangila are dissatisfied with the ruling and order of the High Court of Tanzania (Commercial Division) dated 13th December, 2021. As a result, she has approached this Court with nine grounds of appeal. l Messrs. Gaspar Nyika and Audax Kahendaguza Vedasto, learned counsel, appeared before the Court representing their respective parties on the date scheduled for the hearing. Before the hearing could proceed, Mr. Vedasto sought the Court's indulgence that he be allowed to raise preliminary points of objection. Mr. Nyika did not oppose this application and the Court granted it. The first point of objection was that the appeal was incompetent as it contravened rules 83 (1) and 84 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The complaint was that the notice of appeal found on page 319 of the record of appeal was incompatible with the memorandum of appeal found on page 8, rendering the appeal incompetent. Mr. Vedasto also referred the Court to rule 84 (1) of the Rules, which dictates that parties who participated in the proceedings before the High Court (the decision of which is subject to this appeal) must be served with a notice of appeal. Alternatively, upon an ex parte application, a party may seek permission not to serve the other party. In this case, the 2nd respondent, Alchemist Energy Trading DMCC, was mentioned in the impugned ruling but was neither copied nor served. 2 Mr. Vedasto referred the Court to the cases of Dr. Salum Ali Chambuso v. Paulo Elias Maro, Civil Appeal No. 116 of 2021 (unreported), and Andrew Mseul & Others v. The National Ranching Company Ltd & Another, (Civil Appeal No. 205 of 2016) [2017] 145 (5th December, 2017; TANZLII), which both considered the omission of a party's name fatal, rendering the notice of appeal incompetent. Mr. Vedasto, furthered his submission on service of the notice by referring the Court to the case of Wilfred Muganyizi Lwakatare v. Hamis Sued Kagasheki & Another, (Civil Appeal No. 107 of 2008) [2009] T7CA 62 (6th March, 2009; TANZLII). The second point was that the appeal was time-barred, considering the ruling was delivered on 13th December, 2021 as indicated on page 285 of the record. The notice of appeal was lodged on 17th January, 2022 and the appeal itself on 5th April 2022. Pursuant to rule 90(1), the appeal should be lodged within 60 days. An exception to this requirement is obtained under rules 90(1) and (3) of the Rules. This exception can only apply under rule 90 (3) of the Rules, once a letter to the Registrar of the High Court requesting to be supplied with necessary documents within 30 days of the ruling has been served to the other party. In the present appeal, the 2nd respondent was neither copied nor served with the notice of appeal or the letter requesting to be furnished with the necessary documents. Mr. Vedasto urged the Court to strike out the appeal. Referring to the case of Raymond Obed Kitilya v. The Commissioner For Lands Ministry of Lands, Housing and Human Settlement & Others, (Civil Appeal No. 85 of 2016) [2022] T7CA 560 (15th September, 2022; TANZLII), where the Court ruled that the appeal was incompetent and the Overriding Objective Principle could not remedy the omission. Third, Mr. Vedasto also contended that the High Court had already ruled that the appellant either pays or faces imprisonment as a civil prisoner. Therefore, the Court of Appeal could not alter this decision under rule 115 of the Rules. Any order by the Court on appeal would be merely an academic exercise since the appeal has been overtaken by events. In reply, Mr. Nyika commenced by admitting that the 2nd respondent was not served as required under rule 84 (1) of the Rules. However, this was deliberate, as the 2nd respondent was not affected by the decision, so he argued that there was no need to serve them. He further submitted that the appellant would have sought leave from the Court to exclude the 2nd respondent if necessary. In addition, Mr. Nyika distinguished the case of Dr. Salum Chambuso (supra) from the present appeal, arguing that in that case, the party omitted from the appeal had participated in the proceedings below, whereas the 2nd respondent in this case, had participated only in the High Court proceedings. Regarding the appeal being time-barred, Mr. Nyika argued that the notice of appeal and letter to the Registrar were timely lodged and duly served on the 1st respondent, with no need to serve the 2nd respondent, as the appeal did not affect them. He also acknowledged that, the 2nd respondent's name was omitted in the notice of appeal but featured in the memorandum of appeal, thus requesting the Court to allow the striking out of the 2nd respondent's name, emphasizing that the primary concern was clearing the name of the CEO of the bank, who was found to have violated the court order. In rejoinder, Mr. Vedasto maintained that the 2nd respondent, who had not been served, appeared to be affected by the decision, as evidenced by the inclusion of the name in Civil Appeal No. 114 of 2022. 5 Also, Mr. Vedasto rejected the argument on the Overriding Objective Principle, asserting that the principle could not apply to time limitations. He further submitted that, Mr. Nyika had admitted that no changes could be made to the High Court decree other than clearing the appellant's CEO's actions. This exercise, however, was based on the reasoning behind the original decision, which could not be overturned on appeal. After listening to the counsel for the parties' submissions, we are now invited to determine whether the preliminary points of objection raised are maintainable. We would outrightly wish to remark that, the notice of appeal found on page 316 and the memorandum of appeal on page 8 of the record of appeal are incompatible. In the notice of appeal, which is essential to institute an appeal, only the 1st respondent is listed. In contrast, in the memorandum of appeal, the names of the 1st and 2nd respondents are both listed. This inconsistency renders the appeal incompetent. After lodging a notice of appeal as governed by Rule 83(1) of the Rules, thereafter follows service of the lodged notice of appeal. Rule 84(1) regulates service. According to rule 84(1), which provides as follows: "84. (1) An intended appellant shall\ before, or within fourteen days after lodging a notice o f appeal\ serve copies of it on aii persons who seem to him to be directly affected by the appeal; but the Court may, on an ex parte application, direct that service need not be effected on any person who took no part in the proceedings in the High Court." [Emphasis added] According to the rule, the intended appellant must serve copies of the notice of appeal to all persons directly affected by the appeal within 14 days of lodging the notice. Alternatively, the appellant may apply ex parte to the Court for permission to exclude certain parties from service. It is clear that the 2nd respondent participated in the proceedings before the High Court and, as such, should have been served with the notice of appeal. Mr. Nyika's decision to exclude the 2nd respondent without obtaining leave from the Court was improper. The Court's role is to ensure that no unjustified omission occurs or confusion arises in managing records. This is the rationale behind an ex parte application seeking leave to omit to serve a party seemingly unaffected by the intended appeal's outcome. We think the case of Dr. Salum Ali Chambuso (supra), distinguished by Mr. Nyika, is relevant. In that case, the appellant omitted a party who had taken part before the two lower court proceedings in the appeal before the Court. Mr. Nyika's argument that the facts in the two cases are different is not disputed. However, we find that the issue in both cases is not on the number of proceedings a party took part in, but simply that the parties who took part in the proceedings subject of the appeal before the Court, their names, did not feature in the notice of appeal. In Dr. Salum Ali Chambuso (supra), a party's name was omitted; likewise, in the present appeal, the name of the 2nd respondent was omitted. Omitting the party's name means no service of the notice of appeal or a letter to the Registrar High Court was made. That contravenes rule 84 (1) of the Rules, which rendered the appeal before the Court incompetent. In the TPB Bank Pic (Successor in Title of Tanzania Postal Bank) v. Rehema Alatunyamadza & Two Others, (Civil Appeal No. 155 of 2017) TZCA 46 (1st March, 2021; TANZLii) case, we underscored that the mere fact the case was decided ex parte against the other parties does not extinguish their involvement or liability as a party in a suit. Likewise, the fact that the 2nd respondent could seemingly not be affected by the outcome of the appeal is not sufficient reason not to effect service. A valid Court order under rule 84 (1) of the Rules is what can preclude service to the party who took part in the proceedings subject of the appeal. We also perused Andrew Mseul's case (supra). Although the facts are slightly different, we associate ourselves with the decision on the competence of the appeal. In that decision, the Court ruled out that the appeal was incompetent since a notice of appeal was defective for failure to illustrate who those "others" are. In the appeal before us, the notice of appeal is defective for omitting the name of the 2nd respondent who took part in the proceedings before the High Court, rendering it incompetent. We noted a good gesture by Mr. Nyika of coming clean, admitting that the 2nd respondent was not served deliberately. He argued that the outcome of the appeal would not have affected the 2nd respondent. With due respect to the learned counsel, omitting a party who took part in the proceedings requires a Court order as stipulated under rule 84 (1) of the Rules. Since no such order was sought and granted, the choice made was detrimental, rendering the notice of appeal defective. Furthermore, failure to serve the 2nd respondent with a notice of appeal and a letter to the Registrar requesting the necessary documents automatically prevented the appellant from enjoying the benefit of the exclusion of time spent waiting for the requested documents from the Registrar. According to rule 90(1), the notice of appeal should be lodged within 30 days from the ruling date. If all the documents are ready, an appeal should be lodged within 60 days of the ruling date unless there is compliance with rule 90 (1), which could benefit the party under rule 90 (3) of the Rules by being issued with a certificate of delay. By any stretch of imagination, an appeal lodged on 5th April 2022, was well past the 60 days and without a certificate of delay, there is no excuse. Mr. Nyika's assertion that the 2nd respondent did not need to be served, as alluded to earlier on, was misguided. This is because the question of leaving out the 2nd respondent from being served in terms of rules 83 and 84 (1) of the Rules is not upon the party to determine. Leave of the Court is required to do so. Equally, his prayer that he be allowed to strike out the 2nd respondent's name from the memorandum of appeal, though appropriate prayer, we consider, has been overtaken by the preliminary points of objection raised by the respondent. The failure to comply with mandatory provisions of rules 84 (1), 90 (1), and (3) of the Rules, leading to the appeal being time-barred and hence deemed incompetent, touches on the jurisdiction of the Court. The Court can in no way act on the time-barred appeal. We, thus, agree with Mr. Vedasto and the decision in Raymond Obed Kitilya (supra). This decision was cited with approval from Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited and 4 Others (Civil Appeal No. 66 of 2017) [2018] TZCA 303 (14th December, 2018; TANZLII), stating that the omission could not be saved with the application of the Overriding Objective Principle. li We have not determined the issue of the validity of the appeal in the light of rule 115 of the Rules, as raised by Mr. Vedasto, having in mind that it would entail going through the evidence which exercise does not fall within the purview of the preliminary objection. Accordingly, we sustain the preliminary objections raised by Mr. Vedasto, and struck out the appeal for being incompetent with costs. It is so ordered. DATED at DODOMA this 18th day of February, 2025. R. J. KEREFU JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Ruling delivered this 18th day of February, 2025, in the presence of Mr. Gasper Nyika, learned counsel for the Appellant also holding brief for Mr. Audax Kahendaguza Vedasto for the 1st Respondent and in the Absence of 2nd Respondent, is hereby certified as a true copy of the original.