HIPATEC RULING

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWANPAMBO, J.A.. KIHWELO. 3.A. And MGEYEKWA, J.A.^ CIVIL APPEAL NO. 474 OF 2023 HIPATEC COMPANY LIMITED.................................................APPELLANT VERSUS THE REGISTERED TRUSTEES OF THE SISTERS OF ST JOSEPH, HIMO, MOSHI, KILIMANJARO........................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mwenempazi, J.) dated the 11th day of October, 2022 in Civil Appeal No. 03 of 2022 RULING OF THE COURT 24th & March, 2025 MGEYEKWA, 3A: The appellant, HIPATEC Company Limited, was aggrieved by the decision of the High Court sitting at Moshi in Civil Appeal No. 3 of 2022, delivered on 11th October 2022. This matter originated from the District Court of Rombo which had decided in favour of the appellant. It ordered the respondent to pay TZS. 40,403,9382.00 and TZS. 15,000,000.00 as specific and general damages respectively, for breach of contract. Aggrieved, the appellant filed a notice of appeal in this Court on 24th October 2022 and later instituted her appeal on 24th May 2023. At the hearing of the appeal on 20th March 2025, Mr. Henry Lema, the Managing Director appeared representing the appellant and the respondent was represented by Mr. Aristides Ngawiliau. Before addressing the appeal on its merit, Mr. Ngawiliau with leave of the Court addressed the Court on a preliminary objection pursuant to Rule 113 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Upon taking the floor, Mr. Ngawiliau contended that the instant appeal was incompetent for being filed out of time. The learned counsel premised his argument on the proviso to rule 90 (1) of the Rules and contended that, in the absence of proof of written application for the supply of copies of proceedings, judgment and decree addressed to the Registrar, the appeal ought to have been instituted within sixty (60) days from 11th October, 2022 after lodging the notice of appeal. He argued that on the contrary the appeal was lodged 212 days contrary to rule 90 (1) of the Rules. He further argued that the proviso to rule 90 (1) of the Rules allows the Registrar of the High Court to exclude the time taken for the appellant to request and collect certified copies of documents for appeal purposes but since there was no evidence that the request was made and the date the documents were supplied the appeal was instituted out of time. Mr. Ngawiliau pointed out also that the appellant did not serve a copy of the letter requesting for documents on the respondent in contravention of rule 90 (3) of the Rules which made matters worse for the appellant. Relying on our decision in Filon Felician Kwesiga vs Board of Trustees of NSSF [2021] TZCA 424 (27 August 2021) TanzLII, Mr. Ngawiliau argued that the absence of a certificate of delay precludes the appellant from relying on any evidence to save the appeal from being time-barred. Therefore, he invited the Court to strike out the appeal with costs. As the appellant was not legally represented on 20th March, 2025, we adjourned the hearing to enable him prepare for the reply or engage an advocate in that behalf. At the resumed hearing on 24th March, 2025, Mr. Lema yet again appeared without an advocate. However, he rose and conceded the objection. Due to that fact that he was a layman, instead of conceding to the prayer for striking out the appeal, he prayed for withdrawal of the appeal which was not appropriate. Four our part, as the appellant has conceded that the appeal is incompetent for being instituted beyond sixty (60) days from the date of the notice of appeal, we uphold the preliminary objection. As urged by Mr. Ngawiliau, since the appeal is incompetent, it has to be struck out. It cannot be withdrawn as prayed by Mr. Lema. The incompetent appeal is accordingly struck out with costs. Order accordingly. DATED at MOSHI this 25th March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 26th day of March, 2025 in the presence of Mr. Henry Erasto Lema, Managing Director for the Appelant and Mr. Aristides Ngawilian, learned counsel for the