20081010 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 97 OF 2008 HASSAN JAM BIA ........................................................................... APPLICANT VERSUS TANZANIA ELECTRIC SUPPLY CO . ........................................... RESPONDENT (Application for Striking out Notice of Appeal from the Decision of the High Court of Tanzania At Dar es Salaam) (Mihayo, J) Dated the 6th day of Oct, 2005 in ·~~~---~-- c·•=~~~ . Civil Appeal No. 6 of 2004 RULING 23ro, September & 16th October, 2008 MlASIRI, J.A, By a Notice of Motion lodged on 11th July, 2008, the Applicant is asking the Court to strike out the Notice of Appeal filed by the Respondent under Rule 82 of the Court of Appeal Rules, 1979. The Notice of Motion is supported by the Affidavit of the Applicant, Hassan Jambia. 1 The Applicant is represented by Mr. Ukwong'a learned Advocate and the Respondent by Mr. Johnson learned Advocate. Mr. Ukwong'a submitted that the Respondent has not taken the essential steps in the proceedings. He was therefore inviting the court to strike out the Notice of Appeal. According to Mr. Ukwong'a, the Notice of Appeal is making ..reference to .a ruling of Mihayo, J.. and r1ot a judgment... Mr Ukwoflg'a further stated that a letter to the Registrar requesting for copies of the proceedings is making reference to a "civil application" and not a civil appeal. He further stated that the application seeking leave to appeal in the High Court is also referring to a "civil application" instead of a civil appeal. Mr. Ukwong'a submitted that it is not very clear what the Respondent is seeking from the Court. By making reference to an application instead of an appeal, it is very confusing and misleading to the court. It is difficult for the Court to prepare the required 2 documents amidst this confusion. The Respondent's Notice of Appeal in its present form is not valid and should be struck out. Mr. Ukwong'a further submitted that the Notice of Appeal is merely being used by the Respondent to halt proceedings in the lower courts. Mr. Johnson submitted that the application is misconceived. ==~-=--="---"~~~--AccQcding to.Mr. Johnson Rule 82.ofthe Court Rules can be invoked under two situations only; when no appeal lies, or when some essential steps in the proceedings have not been taken. Mr. Johnson further stated that the Respondent has taken all the necessary steps; the Notice of Appeal has been lodged, a letter requesting to be furnished with proceedings has been sent to the Registrar of the High Court, leave to appeal has been granted by the High Court. He further stated that he was just awaiting the necessary documents from the Court in order to institute the appeal. Mr. Johnson stated that the reference to the word "application" 3 ,. instead of appeal was a mere slip of the pen. The Notice of Appeal makes reference to a decision which all parties are aware of being the Judgment of Mihayo, J. in Civil Appeal No. 6 of 2004. The letter to the Registrar makes reference to the judgment save for the heading of the letter. Mr. Johnson further argued that the parties are the same, the case number is the same. The Respondent's intentions are clearly confusion. Mr. Johnson submitted that the purported irregularities are not fatal and have not occasioned any injustice. The issue to be determined is whether the Notice of Appeal filed by the Respondent referring to a "ruling" instead of judgment, and the reference to Civil Application No. 6 of 2004 instead of Civil Appeal No. 6 of 2004 in the application for leave to appeal and the letter to the Registrar warrants the striking out of the Notice of Appeal under Rule 82 of the Court of Appeal Rules, 1979. Rule 82 of the Court Rules provides as under. 4 "A person on whom a notice of appeal has been served may at any time, either before or after the institution of the appeal apply to the Court to strike out the notice of 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 within the rescribed time" In this case the Respondent, who was dissatisfied with the High Court decision, sought to appeal to this Court and duly lodged a Notice of Appeal in time. It also wrote in time to the Registrar of the High Court to be furnished with a copy of the proceedings, the letter was duly copied to the applicant. The said letter made reference to a judgment. The reference to the application was only in the caption. Leave to appeal to the High Court was also made. 5 It is my finding that the Applicant has not established that the Respondent had failed to take essential step in the proceedings. In Stanbic (TJ Limited v. Jayant Patel and Another, Civil application No. 78 of 2001 (unreported) the Court dismissed an application to strike out a notice of appeal on the ground that an essential step had not been taken because the Applicant failed to establish that the Respondents had failed to take an essential step to institute the intended appeal. ~=---- ~- ------- - · - ··..:::- .__ -- _____:_----'----'.-~~___;_-~· ~~ ~~~~~~In Edwar~___!!~~--'!.i_,~!!}!~ tla~Miii~Niaiiga&· -co: ... Advocates V. National Bank of Kenya Ltd [2006] eKLR Omolo J.A. defined failure to take an essential step in the process of an appeal as failure to file the notice of appeal within time or filing an appeal without an order. In Atlantic Electric Ltd v. Morogoro Region Cooperative Union 1993 TLR 12, it was stated that the necessary steps to institute an appeal are applying for and obtaining copies of proceedings from the High Court and applying for leave to appeal. 6 .. In CRDB Bank Limited V. G.M. Kilindu (Civil Application No. 81 of 2005 (unreported), it was stated that " essential steps are mainly those which are aimed at eventually meeting the requirements of Rule 89. Any step towards that end, like compliance with Rule 77 and 83, just to mention a few rules, would be essential step in the proceedings." It is my finding that making reference to a "ruling" instead of a -~~=-~".judg(1J~nt" in the -Notice of-Appea1~and~"application!L~instea0=~0f~--~-~~ ~- ---~- - - - .. - "appeal" in the caption of the letter to the Registrar when neither the number of the case nor the names of the parties were altered in itself does not warrant the striking out of the notice of appeal, given the position that the requirements of taking the necessary step in the proceedings were complied with. The essential steps envisaged by Rule 82 of the Court Rules are steps which advance the hearing of the appeal, Asumen Rashid V. Boko Omari 1997 TLR & 146. In the instant case no sufficient ground has been advanced to justify the exercise of this Court's power under Rule 82. The 7 l, • 4 application has no merit. It is hereby dismissed. I make no order as to costs. DATED at DAR ES SALAAM this 10th day of October, 2008. S. MJASIRI JUSTICE OF APPEAL I c-~rtifi that-this-is-a-true copy_ of ---- - - the-- original. ·-·-