CIVIL APPLICATION NO 36 OF 2023 DENIS KALUA ANOTHER VS MS FLAMINGO CAFETERIA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANDAMBO J.A., MWAMPASHI. 3.A.. And FELESHI. J.A.^ CIVIL APPLICATION NO. 36 OF 2023 DENIS KALUA................................................... ................... ist APPLICANT SAIDI MNG'OMBE................................................................. 2nd APPLICANT VERSUS M/S FLAMINGO CAFETERIA...................................................RESPONDENT [Application to strike out a Notice of Appeal from the Decision of the High Court of Tanzania (Labour Division) at Dar es Salaam] fMoshi. J/> dated the 27th day of May, 2011 in Revision No. 210 of 2010 RULING OF THE COURT 25th February & 04th March, 2025 MWAMPASHI. 3.A.: The applicants herein, Denis Kalua and Saidi Mng'ombe, were employees of the respondent, M/s Flamingo Cafeteria, until on 21.05.2009 when they were terminated from employment. Aggrieved, they preferred a labour dispute; No. CMA/DSM/ILAL/406/09/646 before the Commission for Mediation and Arbitration for Dar es Salaam (the CMA). However, on 10.02.2010, their claims were dismissed mainly on the ground that their i engagement with the respondent was on fixed term contracts which had come to an end. Dissatisfied with the CMA decision, the applicants successfully applied for a revision of the said decision before the High Court of Tanzania (Labour Division) at Dar es Salaam vide Labour Revision No. 210 of 2010. In its decision which was rendered on 27.05.2011, the High Court found that the termination was unfair and it thus, upset the CMA decision. Among other reliefs, the High Court ordered for the reinstatement of the applicants. Displeased and desirous of appealing against the decision, the respondent wrote a letter to the Registrar of the High Court requesting for certified copies of the proceedings, judgment and decree for appeal purposes on 02.06.2011 and on the following day, that is, 03.06.2011, a notice of appeal for that purpose was duly lodged. Despite the respondent's intention to appeal against the High Court decision, as alluded to above, about 12 years elapsed without the respondent preferring its intended appeal. The delay by the respondent in instituting the intended appeal prompted the applicants to file the instant application on 05.04.2023 under rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), for an order to strike out the notice of appeal. The application is supported by an affidavit sworn by the 2 applicant's advocate, Mr. Evans R. Nzowa and in resistance, there is an affidavit in reply sworn by Mr. Thomas Joseph Massawe, learned advocate for the respondent. Initially, two grounds were raised in support of the application. However, in the course of the hearing, the first ground was dropped. That being the case, the sole ground upon which the application is predicated is the second ground which is to the effect that, some essential steps in the proceedings have not been taken. At the hearing of the application, whilst the applicants had the services of Mr. Evans R. Nzowa, learned advocate, the respondent was represented by Mr. Thomas X Massawe, also leaned advocate. In his brief submissions and having adopted the contents of the supporting affidavit, Mr. Nzowa argued that for over 14 years after the respondent had lodged the notice of appeal and applied for a copy of the proceedings, judgment and decree for appeal purposes, no action has been taken by the respondent in furtherance of the intended appeal. He contended that the respondent has even failed to make a follow-up on the documents it had requested from the Registrar. He thus urged us to strike out the notice of appeal as sought in the notice of motion. The respondent's defence, based on the affidavit in reply and from the submissions by Mr. Massawe, was that the respondent duly lodged the notice of appeal and requested for a copy of the requisite documents for appeal purposes. It was also contended that since the Registrar has not notified the respondent on the readiness of the requested documents for collection and as the said requisite documents are yet to be supplied to the respondent, no competent appeal can be instituted. Mr. Massawe, further argued that, on 02.07.2019, a reminder fetter was sent to the Registrar with no response. He added that, apart from the reminder letter, physical follow-ups have been made but all in vain. Placing reliance on the decision of the Court in Msae Investment Co. Limited v. National Bank of Commerce Limited (Civil Application No.427/17 of 2021), Mr. Massawe implored us to dismiss the application because it is not the respondent who is to blame. Having examined the notice of motion, the supporting affidavit and the affidavit in reply and in consideration of the submissions made for and against the application, what pops out is an alarming fact that about 14 years have elapsed since June, 2011 when the respondent applied for requisite documents for appeal purposes and lodged the notice of appeal. For 14 years the respondent has failed to institute its intended appeal. The applicants' complaint is that such a delay in filing the intended appeal is inordinate and that the respondent's inaction by not taking essential steps in furtherance of its intended appeal is unjustifiable. On the other side, the respondent's defence is that having duly requested for the requisite documents in writing and after sending to the Registrar the reminder letter on 02.07.2019 with no response coupled with fruitless physical follow-ups on the said documents, it cannot be said that the respondent has been indolent or that it has failed to take essential steps. It is maintained that the respondent has discharged its obligation in line with our decision in Msae Investment Co. Limited (supra), where it was held that where the respondent duly requested for necessary documents and wrote follow-up reminder letters and in the absence of evidence showing that the Registrar had informed the respondent of the readiness of the requested documents, the Court has to give the respondent a benefit of doubt We understand that the respondent's defence is being raised in consideration of the fact that the delivery of the impugned decision, lodgement of the notice of appeal and the request for requisite documents was effected in 2011 before the amendments to rule 90 of the Rules, in 2017 by the Tanzania Court of Appeal (Amendment) Rules, 2017 (G.N. 5 No. 362 of 2017) and again in 2019 by the Tanzania Court of Appeal (Amendment) Rules, 2019 (G.N. No. 344 of 2019). It is by the said amendments that, the obligation to take steps within 14 days to collect the requested requisite documents where the Registrar fails to notify the intended appellant of the readiness of the documents for collection within 90 days of the day of the request, was legally placed to the intended appellant. Before the said amendments, the position was to the effect that once an intended appellant had applied in writing for the requisite documents for appeal purposes and duly served a copy of the said letter on the other party, he had no further obligation to discharge. He was home and dry. While we appreciate the above position, we are however, of the considered view that, the delay in filing the intended appeal for the period of about 12 years from the date the notice of appeal was lodged and the application for requisite documents was made, that is, June, 2011 to 05.04.2023 when the instant application was filed, is inordinate. Under the circumstances of this case, we do not think the respondent's acts of applying for the requisite documents on 02.06.2011 and sending a reminder letter on 02.07.2019, after expiry of 6 years, and then lying idle without taking any further affirmative action to ensure that the requested 6 documents are collected and the intended appeal is filed, can be construed to mean anything than that there was a failure on its part in taking essential steps for furtherance of the intended appeal. To say the least, the respondent's diligence in the pursuit of its intended appeal is seriously questionable. In our view, the respondent's claim that there have been several physical follow-ups on the requested documents is nothing but a statement from the bar which cannot be taken seriously. Such a claim ought to have been supported by an affidavit of a High Court Registry officer the respondent has allegedly been communicating with. See- Samwel Mgonja v. Total (T) Limited (Civil Application No.400/16 of 2017) [2018] TZCA 383 (19 February 2018;TanzLII). Admittedly, under the circumstances of this case where there is a delay of 14 years to institute the intended appeal just because of the unavailability of the requisite documents for appeal purposes, the Registrar cannot be spared from the blame. That notwithstanding, the respondent's conduct in failing to diligently follow-up on the requested documents amounts to failing to take essential steps in furtherance of its intended appeal. In the case of Daudi Robert Mapuga & 417 Others v. Tanzania Hotels Investment Ltd & 4 Others (Civil Application No. 462/18 of 2018) where the respondents having lodged their notice of appeal and applied for a copy of the proceedings on 10.12.2015, they had, for over 27 months remained idle and failed to take any further action in furtherance of their intended appeal, it was stated by the Court that: "As we held in Arthur Kirimi Rimberia (supra), we are o f the firm view that the stance in Mohsin Mohamed Taki AbdaHah (supra) would be fully applicable where, as in this matter, the respondents, having lodged their notice o f appeal and applied for a copy o f the proceedings, took no further action thereafter for an inordinate period o f time. In the instant matter, the respondents simply sat back believing that they were "home and dry". Both in the affidavit in reply and oral argument before the Court, the respondents stated fearlessly and unblushingly that they had no obligation to follow up on their outstanding request for a record o f proceedings. ...Should we allow them to keep waiting infinitely without any action on their part? We think the law should not be interpreted and applied in a manner that protects parties whose diligence is seriously in question. Their enduring inaction only implies an inexcusable lack o f diligence in pursuing the intended appeal warranting the Court to strike out 8 the notice o f appeal under Rule 89 (2) o f the Rules." The Court thus, concluded that: " While we acknowledge that the Registrar is plainly blameworthy for his inaction in supplying the requested documents, we think the respondent's diligence is seriously in question. We are unprepared to let the respondents' claim that they were home and dry. It would be most illogical and injudicious, we think, to accept the respondents' wait infinitely for a copy o f the proceedings while they take no action on their part to follow up on their request to the Registrar. To say the least, this infinite inaction, in our respectful view, offends the ends o fjustice." Guided by the above stance the Court took in Daudi Robert Mapuga & 417 Others (supra), we find that the respondent's inaction in following up on the requested documents, firstly for 8 years from June, 2011 when the request for the same was made to 02.07.2019 when the reminder letter was written and secondly, for about 4 years from the date the reminder was made to 05.04.2023 when the instant application was filed, leaves a lot to be desired. As we have alluded to earlier, we are of 9 a settled view that the respondent failed to take essential steps towards institution of its intended appeal. In the event, we find the application meritorious and grant it. Consequently, in terms of rule 89 (2) of the Rules, the notice of appeal lodged by the respondent on 03.06.2011 against the High Court decision dated 27.05.2011 in Revision No. 210 of 2010, is hereby struck out. Order accordingly. DATED at DAR ES SALAAM this 03rd day of March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Ruling delivered this 04th day of March, 2025 in the presence of the 2nd Appellant in person and Mr. Henry Mboya legal officer from Advocate Thomas Massawe for the Respondent, is hereby certified as a