edger maokola majogo vs hajat aidat said kilahama others 2019 tzca 431 22 november 2019

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MUSSA, J.A.. WAMBALI, 3.A., And LEVIRA. J.A.^ CIVIL APPLICATION NO. 212/17 OF 2019 EDGER MAOKOLA MAJOGO............................. ....................APPLICANT VERSUS 1. HAJAT AIDAT SAID KILAHAMA 2. JAMADA AZIMIO SAID KILAHAMA ! ..................RESPONDENTS 3. SUED SAID KILAHAMA (Joint i Administrators of the Estate of the Late Alhaj Said Rashid Kilahama) J [Application for an Order to strike out a Notice of Appeal lodged against the decision of the High Court of Tanzania (Land Division) at Dar es Salaam] ( Kalombola, 3.^ Dated the 28th day of August, 2015 in Land Case No. 125 of 2012 RULING OF THE COURT 29th October &. 22nd November, 2019 WAMBALI, J.A.: The High Court of Tanzania, Land Division entered judgment in favour of the applicant, Edger Maokola Majogo in Land Case No. 125 of 2012. The then defendant, the late Alhaji Said Rashid Kilahama was aggrieved by the judgment and decree; he therefore, on 31st August, 2015 lodged a notice of i intention to appeal to this Court. Subsequently, his advocate Mr. Mohamed Tibanyendera, from Star Chambers Advocates, on the same date wrote a letter to the Registrar of the High Court and applied to be supplied with the certified copies of proceedings, judgment and decree for the purpose of lodging an appeal. In response to that letter, the Registrar of the High Court on 7th December, 2016 through a letter with reference number Land Case No. 125/2012, informed the learned advocate that the requested documents were ready for collection upon payment of necessary fees. It is not out of place to point out that unfortunately, the then intended appellant, Alhaji Said Rashid Kilahama passed away on 28th April, 2016. As a result, through Probate and Administration Cause No. 605 of 2016, the High Court at Dar es Salaam appointed Hajjat Aidat Said Kilahama, Jamada Azimio Said Kilahama and Sued Said Kilahama as joint executors of the will of the deceased. Following their said appointment as executors, the Court on 28th August, 2018 through Civil Application No. 180 of 2015 granted leave to the present respondents to be joined in the place of the late Alhaji Said Rashid Kilahama as legal representatives. Be that as it may, it is not disputed that to date the respondents have not lodged an appeal. This state of affair prompted the applicant to lodge the present application under Rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking the order of the Court to strike out the notice of appeal dated 31st August, 2015. The prayer is based on the alleged failure of the respondents to take essential steps to lodge an appeal within the period of sixty days required by law. The application is supported by the affidavit of Edger Maokola Majogo, the applicant. On the other hand, the respondents through the services of Mr. Mohamed Tibanyendera learned advocate has resisted the application. In his affidavit in reply on behalf of the respondents, Mr. Tibanyendera has strongly emphasized that the respondents have taken essential steps as provided by law, but the only impediment is that, the Registrar of the High Court has not supplied his clients with the requisite documents to be able to lodge the appeal. At the hearing of the application Mr. Martin Rwehumbiza, learned advocate appeared for the applicant while Mr. Mohamed Tibanyendera also learned advocate entered appearance for the respondents. They both 3 adopted the affidavit and affidavit in reply respectively and elaborated briefly on the substance of their contention. In his brief submission in support of the application, Mr. Rwehumbiza explained that since the notice of appeal was lodged and after the respondents were made parties in the place of the deceased who was the intended appellant on 28th August, 2018, no action has been taken to ensure that the appeal is lodged in Court. He argued further that, even after the decree which was found to be defective by the Court was rectified by the Registrar of the High Court on 3rd April, 2019, the respondents have not taken any essential step to lodge the appeal and no sufficient explanation has been offered to explain the said failure. In the circumstances, Mr. Rwehumbiza, prayed to the Court to strike out the notice of appeal with costs. In response, Mr. Tibanyendera reiterated what he has stated in the affidavit in reply that, the respondents have taken essential steps, including obtaining leave to appeal, but the Registrar of the High Court has not supplied them with all the relevant documents to be able to lodge an appeal. He argued that even the existence of a rectified copy of a decree allegedly extracted on 3rd April, 2019 which was issued to the applicant, was brought to his attention when he was served with the present application. However, he contended that the Registrar of the High Court has not formally communicated to him or the respondents that the said decree and other documents are ready for collection. Mr. Tibanyendera therefore, emphasized that to date the respondents have not obtained all the documents which were requested by virtue of a letter dated 31st August, 2015. He strongly submitted that the letter of the Registrar of the High Court dated 7th December, 2016 informing him that the documents were ready for collection is of no effect as it was based on defective decree which was issued earlier. He therefore, maintained that the respondents still await to be informed by the Registrar of the High Court to collect the relevant copies of the proceedings, judgment and decree to be able to lodge an appeal. Even when he was asked by the Court as to whether he has ever written to the Registrar of the High Court to respond to the letter dated 7th December, 2016 or to know whether the said documents are ready for collection after the rectification of the decree, Mr. Tibanyendera stated that, he has many letters to that effect, but did not attach the same to his affidavit in reply. 5 In the end, the learned advocate prayed that the application be dismissed with costs for being misconceived as the respondents have taken essential steps towards lodging the appeal. Having heard learned counsel for the parties, the major question we have to resolve is whether the application has merit. From the record of the application, we have no doubt to state that since the notice of appeal was lodged by the late Alhaj Said Rashid Kilahama on 31st August, 2015 to date, it is almost more than four years and two months which have passed. Yet, in terms of Rule 90 (1) of the Rules, an appeal must be lodged within sixty days from the date of lodging the notice of appeal. The intended appellant is thus required to ensure that he takes essential steps to have the appeal lodged within the prescribed period. On the other hand, the intended appellant can only explain the delay in failing to institute the appeal within the prescribed period, if he has written to the Registrar of the High Court and copied the said letter to the intended respondent within thirty days from the date of lodging the notice of appeal, requesting to be supplied with certified copies of proceedings, judgment and decree as provided for under the proviso to Rule 90(1) and sub rule 2 of that Rule. In the present matter, according to the record of the application, the respondents through the deceased applied to the Registrar on 31st August 2015 to be supplied with the requisite documents stated above. That letter was replied by the Registrar of the High Court on 7th December, 2016, in which the then respondent (late Alhaji Said Rashid Kilahama) was informed through his advocate that the said documents were ready for collection. Unfortunately, according to the record of the application, that letter has never been replied to. The explanation of the counsel for the respondents is that, as the then respondent died on 28th June, 2016, the process of appointing the legal representatives to take the place of the deceased respondent was underway as it was until 30th December, 2016 when the High Court appointed the three respondents as executors of the will of the estate of the late Alhaji Said Rashid Kilahama. The other explanation offered by the counsel for the respondents is that it was until 27th August, 2018 when the application for stay of execution was called on for hearing before the Court when the order of joining the respondents as legal representatives in a place of the deceased respondent was made. 7 Moreover, Mr. Tibanyendera argued that on 28th August, 2018 the same Court raised suo /770 ft/the issue of a defective decree and as a result, the said application for stay of execution was marked withdrawn. He thus, stated that it was until the respondents were joined as legal representatives that they started to follow up with the Registrar of the High Court seeking to be supplied with a proper copy of a decree which is yet to be provided despite several reminders for the same. He however, submitted that it only came to his knowledge after being served with the present application that, the Registrar of the High Court has supplied the applicant with a rectified copy of a decree which was extracted on 3rd April, 2019 as stated by the counsel for the applicant. Nevertheless, he forcefully submitted that, to date the Registrar of the High Court has never made formal communication to the respondents on whether the decree and other documents are ready for collection. Indeed, he argued further that, even the letter dated 7th December, 2016 is of no effect as the respondents could not have collected a defective decree as was found by the Court in the course of hearing the application for stay of execution. Even when he was pressed to show as per the record of the application, if he has any evidence to show that he has ever communicated with the Registrar of the High Court to 8 remind him to supply the respondents with the requested documents, he stated that he has done so several times, but he had not attached a letter to his affidavit in reply to support his contention. He thus insisted that the respondents have taken essential steps towards lodging the appeal, but the only impediment is the delay of the Registrar of the High Court in supplying the relevant documents to facilitate the lodging of the appeal. We have to note that on the part of the counsel for the applicant, it was strongly argued that, even if the period from 31st August, 2015 up to 3rd April, 2019 is discounted due to what transpired concerning the death of the late Alhaji Said Rashid Kilahama, yet from that period to date, the respondents have not shown that, they have made any effort to lodge the appeal within sixty days since the decree was rectified as stated above. Mr. Rwehumbiza argued further that, since the current application was lodged on 13th June, 2019 to date, it is more than three months which have passed and there is no indication showing that efforts have been taken by the respondents to institute the appeal. It was thus prayed that the application be granted as the respondents have failed to take essential steps to have the appeal lodged in Court within the prescribed period. On our part, we are of the considered opinion that, the respondents have failed to take essential steps to institute the appeal due to the following reasons. Firstly, even if the period between 31st August, 2015 when the letter was written to the Registrar of the High Court requesting to be supplied with the requisite documents to 30th December, 2016 as the date when the respondents were appointed as executors of the will of the estate of the late Alhaji Said Rashid Kilahama will be discounted, still there is no indication that, they formally took the efforts to apply to the Court to be joined as legal representatives in the intended appeal, a notice of which had already been lodged. We say so because, it took the respondents almost one year and eight months to apply informally, to be joined as legal representatives on 27th August, 2018 in the course of hearing of Civil Application No. 180 of 2015 which was specifically for seeking orders for stay of execution. The said application was pending before the Court since 2015. Secondly, even if we are to discount the stated period prior to the Court's order granting leave for the respondents to be joined as legal representatives, still there is no indication as per the record of the application that, the respondents made any effort to contact the Registrar of the High 10 Court to respond to his letter dated 7th December, 2016 informing the learned counsel to collect the documents which were said to be ready for collection. Indeed, as conceded by Mr. Tibanyendera, no any letter to that effect has been attached to his affidavit in reply which was lodged in Court on 24th October, 2019 to show that there is any communication between the respondents and the Registrar of the High Court on the status of the requested documents. This is despite the fact that the learned advocate's affidavit in reply was lodged in the registry, just three days before this application was heard by the Court. Thirdly, it is further noted that, although the issue of a defective decree was raised by the Court on its own motion on 28th August, 2018, there is no documentary evidence from the respondents showing that, they immediately thereafter applied to the Registrar of the High Court to have the decree rectified for the purpose of including the same in the intended record of appeal. In this regard, we find that the argument by their learned advocate that the letter of the Registrar of the High Court dated 7th December, 2016 is of no effect as the intended decree which was to be collected was defective is unfounded. We say so because in the said letter, it was not indicated that it was only the decree which was ready for ii collection, but it was all the documents which were requested for by the respondents' counsel through his letter dated 31st August, 2015. Indeed, even if the learned advocate could have collected a defective decree, as it happened to the one which was used to support the application for stay of execution, yet it was his duty to notice it and ask the Registrar of the High Court to have it rectified by the trial judge. Nevertheless, we are alive to the fact that even that defect was discovered by the Court and not the respondents or their counsel who simply prayed to withdraw Civil Application No. 180 of 2015 after that discovery. Thus, up to that time the respondents through their advocate had not noted that the decree was defective. This indicates that no sufficient efforts were made to follow up the matter with the Registrar of the High Court who supplied the same. Fourthly, we also note that after the respondents were served with the present application which was lodged on 13th June, 2019, in which it was indicated that, the said defective decree had been rectified since 3rd April, 2019, there is no indication shown in the affidavit in reply of the learned advocate of any serious efforts which have been taken by the respondents to follow up with the Registrar of the High Court to be supplied with not only a rectified decree, but also other documents, including the proceedings, 12 judgment and exhibits if any. To this end, we think, with respect, that the submission of the learned advocate for the respondents that he has written several letters to the Registrar of the High Court to demand the said copies is from the bar and of no weight, as he had ample time to attach those letters to his affidavit in reply which was lodged just three days before the hearing of the application as intimated above. Besides, if those letters exist, he would have copied the same to the applicant, but this is not the case. The allegation is thus unfounded. Fifthly, we are alive to the statement of Mr. Tibanyendera in paragraph 7 of his affidavit in reply that, leave to appeal to this Court has been granted to the respondents. However, the contention is not supported by evidence. We hold this opinion, since he has not stated or attached a letter to show that, he has applied to be supplied with a certified copy of the proceedings, ruling and drawn order concerning leave to appeal or mention the number of the application. Indeed, if the same has been supplied, he could have attached a copy of the ruling to his affidavit in reply. Since leave is one of the essential steps in lodging the appeal, sufficient explanation supported by evidence could have helped to explain that some essential steps have been taken by the respondents towards lodging the appeal. 13 In the event, based on our deliberation above, we respectfully agree with the counsel for the applicant that, the respondents have not taken some essential steps to lodge an appeal within the prescribed period. In the result, we allow the application with costs. In the end, we strike out the notice of appeal. DATED at DAR ES SALAAM this 19th day of November, 2019. K. M. MUSSA JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL The Ruling delivered this 22nd day of November, 2019 in the presence of the Mr. Martin Rwehumbiza counsel for the applicant and Respondents who are present in person is hereby certified as a true copy of the original. H.P. Ndesamburo DEPUTY REGISTRAR COURT OF APPEAL 14