CIVIL APPLICATION NO 522 16 OF 2022 DUNCAN BRUCE MACDONALD VS AMINI NDERINGO KIMARO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWARIJA. 3.A., MGEYEKWA. 3.A. And MLACHA. 3A> CIVIL APPLICATION NO. 522/16 OF 2022 DUNCAN BRUCE MACDONALD................................................... APPLICANT VERSUS AMINI NDERINGO KIMARO.......... .......................................RESPONDENT (Application for an order to strike out the notice of appeal from the Judgment of the High Court of Tanzania, Commercial Division at Dar es Salaam) f Nanqela, J) dated the 29th day of April, 2021 in Commercial Case No. 04 of 2020 RULING OF THE COURT 26th February & 3rd March, 2025 MGEYEKWA, J.A.: In this application by notice of motion taken under rule 89 (2) of the Tanzania Court of Appeal Rules (the Rules), the applicant Duncan Bruce Macdonald moves the Court to strike out a notice of appeal lodged by the respondent on 7th May, 2021. The application is supported by an affidavit deposed by Ernestilla John Bahati, the applicant's advocate. The thrust of the applicant’s prayer is that the respondent has failed to institute the intended appeal within the prescribed time. The application is not resisted, as the respondent has not filed an affidavit in reply. To understand the context in which this application has arisen, it is pertinent to briefly outline the material facts as derived from the record of the application. On 3rdApril, 2017 the parties executed a loan agreement under which the applicant advanced a sum of USD 100,000.00 to the respondent, with the condition that, the respondent would repay the amount within three months from the date of signing the agreement, which was formalized on 4th April, 2017, The parties further agreed that should the respondent fail to repay the principal sum within three days of the due date or fail to pay any other sum within five days of the due date, the respondent should be considered to have defaulted repayment of the loan. In such an event, the applicant would be entitled to take legal action against the respondent. When the loan became due on 3rd July, 2017 the respondent failed to repay the amount as stipulated in the agreement. Despite the applicant's repeated reminders, the respondent did not comply. Following the respondent’s refusal to repay the loaned amount, the applicant instituted a suit (Commercial Case No. 04 of 2020) before the High 2 Court of Tanzania, Commercial Division, against the respondent. After hearing the parties, the High Court (Nangela, J) decided in favour of the applicant. Aggrieved, the respondent expressed his intention to appeal by lodging a notice of appeal in this Court on 7th May, 2021. At the hearing of the application, the applicant was represented by Ms. Loveness Denis, learned advocate. The respondent was duly notified of the date of hearing but did not enter appearance. Ms. Denis beseeched us to invoke the provisions of rule 63 (2) of the Rules and order hearing of the application proceed in the absence of the respondent. We acceded to the prayer and allowed Ms. Denis to argue the application exparte against the respondent. Submitting in support of the application, Ms. Denis commenced her submission by fully adopting the contents of the notice of motion and the affidavit in support of the application. She valiantly contended that the respondent lodged the notice of appeal on 7th May, 2021, and since then, he has not taken any essential steps to lodge the intended appeal. She further submitted that, when computing the days of delay from 7th May, 2021 when the respondent filed the notice of appeal to 2nd September, 2022 when the applicant filed the instant application, a total of 397 days had elapsed. Yet, the respondent has not filed his memorandum of appeal. To buttress this proposition, the learned counsel cited the case of H.H. Hillal and Company Limited v. Medical Store Department and Another, Civil Application No.53/01 of 2019 (unreported). She further argued that the respondent could only be excused if he fell within the exception set out under Rule 90 (1) of the Rules. She added that there is no evidence to demonstrate that the respondent qualifies for the exception provided under that provision. In conclusion, Ms. Denis prayed that the notice of appeal lodged by the respondent on 7th May, 2021 be struck out with costs. We have considered the submission by the learned counsel for the applicant. Having so done, we think the main issue for determination is whether or not the respondent has failed to take essential steps to institute the intended appeal as alleged by the applicant. In addressing this issue, we think we should first appreciate what the law on an application for striking out the notice of appeal provides. Rule 89 (2) of the Rules states: "89 (2) Subject to the provisions ofsubruie (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 of 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. Guided by the above provision of the law, it is imperative to stress that, in an application for striking out the notice of appeal, the Court is required to consider, whether the respondent has taken any essential step in lodging the intended appeal before the Court. See, Elias Marwa v. Inspector General of Police and Another, Civil Application N o.ll of 2012 (unreported). In the matter before us, the respondent lodged the notice of appeal sought to be struck out on 7th May, 2020. Ever since he did not do anything. In terms of rule 90 (1) of the Rules, after the respondent has lodged the notice of appeal, the law requires him to lodge his appeal within sixty (60) days from the date on which the notice of appeal was lodged. The provision is phrased in mandatory terms, reads as follows: 5 "90 (1)- subject to the provisions o f Rule 128, an appeal shall be instituted by lodging in the appropriate Registry, within sixty days o f the date when the notice o f appeal was lodged with- (a) A memorandum o f appeal in quintuplicate: (b) The record o f appeal in quintuplicate: (c) Security o f the costs o f the appeal. Save that where an application for a copy of the proceedings in the High Court has been made within 30 days of the date o f the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar o f the High Court as having been required for the preparation and delivery o f that copy to the appellant" [Emphasis added] The provision quoted above clearly demonstrates that the respondent was obliged to institute the intended appeal in respect of the notice of appeal which he lodged, within sixty days from 7th May, 2021 which he has failed to do to date. As correctly submitted by Ms. Denis, the respondent could only be speared, if he fell within the exception provided under the proviso to the above quoted Rule that is, if he was waiting to be supplied with copy of proceedings to facilitate the lodgment of the appeal. Unfortunately, the respondent has failed to provide any evidence to establish that he can benefit from the exception provided under the proviso to rule 90 (1) of the Rules, in that there was no application to the High Court asking for such documents and a copy served to the applicant. In the circumstances, it is undoubtably clear that there is merit in the applicant's application that the respondent failed to take essential steps to institute his intended appeal. In a similar situation, this Court, in the case of Asmin Rashid v. Boko Omari [1997] TLR 146 held that: "Nothing essential had been done since 2$hApril, 1996 to prosecute the appeal for the whole year and the notice had to be struck o u t" The above stance was also emphasized in the decisions of this Court in Timothy Daniel Kilumile Co. Ltd v. Hillary Patrice Otaigo t/a Nyakanga Filling Station, Civil Application No.365/16 of 2017, Olivia Kisinja Ndete v. Hilda Mtunga, Civil Application No.4 of 2011 (unreported) and H.H Hillal and Company Limited (supra) cited by the learned counsel for the applicant. Conclusively, we find that the respondent has failed to take essential steps towards lodging his intended appeal. We, therefore, grant the application with costs and consequently, in terms of Rule 89 (2) of the Rules, we strike out the respondent's notice of appeal lodged on 7th May, 2021. It is so ordered. DATED at DAR ES SALAAM this 28th day of February, 2025. A. G. MWARDA JUSTICE OF APPEAL A. 2. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 03rd day of March, 2025 in the presence of Mr. Octavian Jovin Kamugisha, learned counsel for the Applicant and in the absence of Respondent, is hereby certified as a true copy of the original.