CIVIL APPLICATION NO 196 18 OF 2023 DANIEL KISOKA VS MANTRA TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CO RAM: NDIKA, 3.A.. MGEYEKWA, 3.A. And ISMAIL. J.A.^ CIVIL APPLICATION NO. 196/18 OF 2023 DANIEL KISOKA....... ................................... .................. ...... APPLICANT VERSUS MANTRA TANZANIA LIMITED...... ....... ......................................RESPONDENT (Application to strike out the Notice of Appeal in respect of an intended appeal against the judgment and decree of the High Court of Tanzania, (Labour Division) at Dar es Salaam) (Muruke, dated the 14th December 2020 in Revision No. 267 of 2019 RULING OF THE COURT 4th & 13th November, 2024 ISMAIL. J.A.: This application calls us to exercise the powers bestowed on us under rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), to strike out the notice of appeal. The notice of appeal under the cosh was instituted by the respondent on 17th December, 2020, and it signaled the respondents intention to challenge the decision of the High Court (Labour Division) in Revision No. 267 of 2019, by way of appeal. The impugned decision confirmed the finding of the Commission for Mediation and Arbitration (CMA) which held that the applicant's termination of employment by the respondent was substantively unfair. As it held so, the High Court partly varied the CMA award and ordered that compensation for unfair termination, awarded by the CMA, be adjusted downwards to the sum equivalent to 12 months of the applicants salaries. In the instant application, the contention by the applicant is that the respondent has failed to take necessary steps to institute the intended appeal within the prescribed time. The applicant's supporting affidavit has given a factual account that backs up his contention, and the relevant parts of the said depositions are found in paragraphs 5, 6,7, 8, 10 and 11 which aver that, while the notice of appeal was lodged on 17th December, 2020, and that the proceedings of the High Court were ready for collection on 28th July, 2021, no action was taken by the respondent's counsel who was duly informed of the availability of the said proceedings. As a result, the applicant averred, two years had elapsed since the notice of appeal was filed and no step was taken to prosecute the appeal. In his contention, this was a deliberate failure by the respondent. The respondent filed an affidavit in reply in which the contention by the applicant was discounted. The deponent of the affidavit, Evod Paul Mushi, averred that, despite the follow-up, the Registrar of the High Court was yet to furnish the respondent with copies of the proceedings. The respondent's letter dated 17th December, 2020 has been attached to cement the contention that essential steps were indeed taken. When the matter came up for hearing, the applicant was represented by Mr. Edward Chuwa, learned counsel, assisted by Ms. Anna Lugendo, also learned counsel. The respondent, who was served with the notice of hearing, did not enter appearance in Court. Mr. Chuwa beseeched us to invoke the provisions of rule 63 (2) of the Rules and order that the application proceeds in the absence of the respondent. We acceded to the prayer and the hearing got underway. In his brief submission on the substantive matter, Mr. Chuwa argued that, since the filing of the notice of appeal, no steps had been taken to institute the appeal. He contended that, while the respondent wrote a letter requesting to be supplied with proceedings of the High Court, it failed to invoke the provisions of rule 90 (5) of the Rules by fielding a reminder within 14 days after the expiry of 90 days set for the Registrar to deliver the said proceedings upon request. Mr. Chuwa reiterated what the applicant deposed in the affidavit that, the court notified the respondent of the availability of the copies of the proceedings on 28th July, 2021, but it took no action. He argued that the fate that would befall such notice of appeal is to have it struck out, in terms of rule 89 (2) of the Rules. He buttressed his argument by referring us to the decision of the Court in Monica Makungu v. Director of Education Department, Archdiocese of Mwanza, Civil Application No. 31/08 of 2021 [2021] TZCA 49. From the counsel's brief submission, the question for our determination is whether the respondent has taken essential steps as required by law. It is common knowledge that institution of appeals in this Court is governed by rule 90 of the Rules which dictates the manner in which such appeals should be filed and the time prescription for such filing. The starting point, however, is the lodging of the notice of appeal in terms of rule 83 of the Rules. As stated earlier on, the respondent filed its notice of appeal on 17th December, 2020. The filing of such notice was done simultaneous with submission of a letter (Annexure DK-4) that requested the Registrar of the High Court to furnish the respondent with copies of the proceedings for the purpose of preparing the record of appeal. Whilst there is no record that a reminder was sent out within 14 days after the expiry of the first 90 days after the first letter had been sent to the court, Annexure DK-4 (c) informs that the proceedings were ready for collection and the applicant's counsel was invited to collect his copies. We have taken a closer look at the respondent's denial in paragraph 6 of the affidavit in reply. Whereas the respondent took note of what the applicant averred in his supporting affidavit, without admitting liability, we note with some amazement that the respondent has not been generous with any factual account that would rebut the applicant's contention that the respondent took no steps subsequent to the Registrar's invitation to collect copies of the proceedings. In our humble view, the respondent's silence on the steps taken is, in effect, an admission that essential steps for the institution and prosecution of the appeal were not taken. What we gather is that, from the time the parties were invited to collect copies of the proceedings on 28th July, 2021, to 23rd March, 2023, when the instant application was filed, a whopping 20 months had elapsed. These were 20 months characterized by deafening silence, lethargy and abandonment by the respondent. This was, in our view, a display of the respondent's wanton failure to take essential steps in the institution and prosecution of the impending appeal, and we take the view that the respondent's prayer justifies the calling into action of rule 89 (2) of the Rules. It befits us to remark, as we draw to a close, that the significance of compliance with the procedural requirements, including rule 90 of the Rules, and consequences of such failure have been underscored by this Court many a time. Such consequence would also cover the remedy that a party can have under rule 89 (2) of the Rules. Thus, in Amina Aden Ally v. Gavita Mohamed, Civil Application No. 4 of 2009 (unreported) the Court held: "It is settled that Rules of the Court must be respected and adhered to lest it leads to miscarriage of justice. He who comes to Court to prosecute a case or an appeal must see to it that essential steps are taken within time as prescribed by the relevant law. Applying delaying tactics leads to nothing less than causing unnecessary harm to the adverse party." We are of the settled view, that the circumstances of this case demand that the respondent's notice of appeal should not be left unscathed. We, accordingly, accede to the prayer by the applicant and strike out the notice of appeal with costs. DATED at DAR ES SALAAM this 12th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Ruling delivered this 13th day of November, 2024 in the presence of Mr. Edward Chuwa, learned counsel for the Applicant and in the absence of the Respondent, is hereby certified as a true copy of the original.