20061117 TZCA Zanzibar

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR ZNZ CIVIL APPLICATION NO. 4 OF 2006 EXECUTIVE SECRETARY, TRUST WAKF AND COMMISSION, ZANZIBAR (Administrator of Mtendeni Mosque} ........................... APPLICANT VERSUS MUSSA SALEH ABDALLA ....................................... RESPONDENT {An application for an order to strike Notice of Appeal from the Ruling of the High Court of Zanzibar atVuga} (Mshibe, J.} dated the 18th day of December, 2002 in Civil Case No. 31 of 2002 RULING 1 & 17 November 2006 NSEKELA, J.A.: By a Notice of Motion filed on the 31.7.2006, the applicant, Executive · Secretary, Trust ·wakf and Commission Zanzibar (Administrator of Mtendeni Mosque) in terms of Rule 82 of the Court of Appeal Rules (Court Rules), 1979, sought an order that the respondent's notice of appeal dated the 31.12.2002 against the ruling of the High Court of Zanzibar in Civil Case No. 31 of 2002 dated the 2 18.12.2002, be struck out. The application was supported by an affidavit of Khamis Abdulhamid, the applicant's Executive Secretary. When the application was called on for hearing, Mr. Mnkonje, learned advocate for the respondent, raised a preliminary objection based on three grounds - 1. That the Notice of Motion is incompetent for non-compliance with Rule 45 (1) & (2). 2. That the Notice of Motion is misconceived as there is Notice of Appeal to strike out. 3. That the affidavit in support of the application defective for being argumentative, conclusive and having prayers. Since the purpose of a preliminary objection is to prevent the application in the Notice of Motion before the Court from being heard on its merit, I therefore have to dispose of the preliminary objection first. In the course of arguing the grounds of the preliminary 3 objection, Mr. Mnkonje abandoned the third ground of complaint. The first ground of complaint related to the applicant's alleged non- compliance with Rule 45 (1) and (2) in the Notice of Motion that it did not substantially comply with Form A in the First Schedule to the Court Rules. He submitted that the applicant did not state the grounds but only stated the orders that the applicant sought from the Court. He added that the failure to state the grounds was fatal to the application. As regards the second ground, Mr. Mnkonje submitted that there is no Notice of Appeal before the Court to be struck out. The Notice of Appeal - Annexure A2 - to the Notice of Motion was filed on the 31.12.2002 and since the appellant has not instituted an appeal in terms of Rule 83 ( 1) of the Court Rules, the appeal is deemed to have been withdrawn under Rule 84 (a). On his part, Mr. Uhuru H. Khalifan, learned advocate for the applicant, submitted that three grounds were mentioned in the Notice of Motion in full compliance with Rule 45 (l) and (2) of the Court Rules. Upon reflection he stated that the core ground was the first one in the Notice of Motion. .j 4 I propose to commence with Mr. Mnkonje's submission that there is no Notice of Appeal to be struck out. ·In accordance with Rule 83 (1) of the Court Rules, the respondent should have instituted the appeal within sixty (60) days reckoned from the 31.12.2002 when the Notice of Appeal was filed in the registry. Rule 83 (1) of the Court of Appeal Rules provides as follows - "83 (1) Subject to the provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged - (a) a memorandum of appeal, in quintuplicate; (b) the record of appeal,. in quintuplicate; (c) the prescribed fee; and ( d) security for the costs of the appeal, ' ' 5 save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision 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 of the High Court as having been required for the preparation and delivery of that copy to the appellant. (2) An appellant shall not be entitled to rely on the exception to sub-rule ( 1) unless his application for a copy was in writing and a copy of it was sent to the respondent." The respondent filed the Notice of Appeal on the 31.12.2002. Apart from this, the respondent has failed to take essential steps to prosecute the appeal to date. The learned advocate for the applicant has conceded that much. The respondent has no desire to pursue the appeal and so in terms of Rule 84 (a) of the Court Rules, he is deemed to have withdrawn the Notice of Appeal. There is therefore no Notice of Appeal to be struck out. I therefore uphold the preliminary objection with costs. Having reached this conclusion, 6 there is no need to consider and determine the first ground of complaint. It is accordingly ordered. DATED at ZANZIBAR this 17th day of November, 2006. H.R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original.