CIVIL APPLICATION NO 88 17 OF 2023 FROMENTINE MKUMBI VS FROMENZI MTALO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANDAMBO. J.A.. MWAMPASHI, J.A. And FELESHI, J.A) CIVIL APPLICATION NO. 88/17 OF 2023 FROMENTINE MKUMBI................................................................APPLICANT VERSUS FROMENZI MTALO................ ..................................................RESPONDENT (Application to strike out Notice of Appeal arising from the Ruling and Order of the High Court of Tanzania (Land Division) at Dar es Salaam) (Mzuna. J.l dated the 11th day of August, 2017 in Miscellaneous Land Appeal No. 126 of 2016 RULING OF THE COURT 11th February & 14th March, 2025 FELESHI. J.A.: Before this Court, the applicant, on 15th February, 2023, instituted an application by way of a notice of motion under rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) moving the Court to strike out a notice of appeal lodged by the respondent on the ground that, ever since the notice of appeal was lodged on 23rd August, 2017, the respondent has failed to take necessary steps to institute an appeal. Per paragraphs 6, 7 and 8 of the founding affidavit sworn by Mr. Symphorian R. Kitare, counsel for the applicant, the steps allegedly not taken are: failure to seek leave to appeal to this Court; and, failure to write a letter to the Registrar requesting for copies of ruling, proceedings and drawn order for appeal purposes. In the founding affidavit in support of the application, Mr. Kitare further deposed that, the respondent aggrieved by the decision of the Kibaha District Land and Housing Tribunal, had appealed to the High Court (Land Division) in Miscellaneous Land Case Appeal No. 126 of 2016 which was dismissed on 11th August 2017 for being time barred. Further aggrieved by the High Court decision, he lodged the aforesaid notice of appeal to this Court on 25thAugust 2017. The contention by the applicant was disputed by the respondent through his affidavit in reply in which the respondent asserted that he left instructions to the legal aid lawyers to apply for leave and request for copies of proceedings. At the hearing of the application, Mr. Symphorian Kitare, learned advocate appeared for the applicant. On the respondent's side, though duly served, he did not enter appearance. Mr. Kitare therefore, with leave of the Court proceeded to argue the application in the respondent's absence as per rule 63 (2) of the Rules. He however, begun by dropping the first ground regarding the respondent's failure to seek leave of appeal to this Court which is not a legal prerequisite in appeals originating from the Ward Tribunals where the requirement is a certificate on a point of law. Mr. Kitare placed reliance on the applicant's prayer in the notice of motion and its founding affidavit which, as alluded to above, was deposed by him. Submitting on the remaining ground, Mr. Kitare argued that, the respondent did not take essential step, to wit, writing a letter to the Registrar requesting for the High Court ruling, proceedings and drawn order which were not requested within 30 days from the date of the impugned decision as required under rule 90 (1) of the Rules. The learned counsel argued that, since that was not done, the respondent was required to institute the appeal within 60 days from the date of lodging the notice of appeal without which, his notice of appeal has been rendered obsolete. In view of the applicant's counsel's submission above, and having paid due regard to the founding affidavit and reply affidavit, the issue before us is whether the respondent has not taken essential step to pursue his appeal. It is common knowledge that, a party intending to appeal to this Court must take necessary steps after lodging a notice of appeal including, requesting the Registrar to furnish him with requisite copies of documents for appeal purposes within 30 days of the decision sought to be appealed against and serving a copy of such letter on the respondent within the same period in terms of rule 90 (3) of the Rules. Rule 89 (2) of the Rules provides: "89 (2). Subject to the provisions o f sub-rule (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 o f the appeal, apply to the Court to strike out the notice of 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. " [Emphasis supplied] - It is a legal requirement that a civil appeal ought to be instituted >within sixty (60) days of the lodgement of the notice of appeal save where there is exclusion of a period as would be reflected in the certificate of delay issued by the Registrar of the High Court excluding the period of time the Registrar has spent in preparing the requested appeal documents. To benefit from the aforesaid certificate of delay, the intended appellant had to write a letter and serve it to the other party within 30 days from the date of the decision appealed against. Rule 90 (1) and (3) of the Rules, provides as follows: "(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 notice of appeal was lodged with- (a) a memorandum o f appeal in quintuplicate; (b) the record o f appeal in quintuplicate; (c) security for costs o f the appeal, Save that where an application for a copy of the proceedings in the High Court has been made within thirty 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 of the High Court as having been required for the preparation and deiivery o f that copy to the appellant (3) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and a copy of it was served on the Respondent within thirty days". (Emphasis added) The requirement of Rule 90 (1) and (3) about the letter requesting for copies and the same to be served to the other party have been emphasized by this Court in a litany of decisions, including D.P. Valambhia v. Transport Equipment Ltd [1992] TLR 246, Raymond Obed Kitilya v. The Commissioner for Lands Ministry of Lands, Housing & Settlement & Others [2022] T2CA 560 (15 September 2022) TANZLII and Mkombozi Center for Street Children & Others v. The Hon. Attorney General [2014] TZCA 175 (30 October 2014) TANZLII. In the matter before us, there is no controversy that the respondent lodged the notice of appeal on 25th August, 2017. Of common knowledge and more importantly also is that, even assuming that the respondent got the documents without writing a formal request, the fact remains that he is yet to institute the appeal. The respondent attributes his failure to write a letter to the Registrar requesting for copies of ruling, proceedings and drawn order to the legal aid lawyers. That is because, he claims to be an indigent litigant depending on the legal aid to pursue the intended appeal. In our settled view, indigency cannot be a shield of condoning inaction. In the case of Daudi Robert Mapuga & Others vs Tanzania Hotels Investment Ltd & Others (Civil Application No.462 of 2018) [2021] TZCA 11 (11 February 2021), TANZLII, we expressed our disapproval of parties who abandon their notices of appeal. But, unlike the situation obtained in Daudi Robert Mapuga & Others (supra) where the intending appellants (respondents) had requested for the appeal documents and relaxed and we found ourselves intolerable with their infinite inaction, the respondent in the instant application did not even request for the appeal documents and those he mentioned to be legal aid layers have no forum before the Court. This definitely offends the ends of justice and militates against timely justice which must be vexed through rule 89 (2) of the Rules. In view of the foregoing, with respect, we are inclined to agree with Mr. Kitare that the respondent as an intending appellant has not taken the requisite essential step towards instituting his intended appeal. We accordingly grant the application in terms of rule 89 (2) of the Rules. The respondent's notice of appeal lodged on 23rd August, 2017 is hereby struck out. Owing to the nature and background of this matter, we make no order as to costs. DATED at DAR ES SALAAM this 4th day of March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Ruling delivered this 14th day of March, 2025 in the presence of Mr. Aidan Kitare, learned counsel for Applicant and in absence of the Respondent, is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL