CIVIL APPLICATION NO 36 OF 2023 IRENE MALANGA VS PATRICK CHRISTOPHER ODWER

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM (CORAM: MWANDAMBO 3.A.. MWAMPASHI, 3.A., And FELESHI, 3.A.1 CIVIL APPLICATION NO. 36 OF 2023 IRENE MALANGA......................................................................... APPLICANT

VERSUS PATRICK CHRISTOPHER O'DWER............................................RESPONDENT [Application to strike out a Notice of Appeal from the Decision of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam] (Mruma, 3.) dated the 01th day of August, 2022 in Civil Appeal No. 90 of 2021

RULING OF THE COURT 24th February & 03rd March, 2025 MWAMPASHI, 3.A.: On 01.08.2022, the High Court of Tanzania at Dar es Salaam, in Civil Appeal No. 90 of 2021, quashed the order of the Resident Magistrate's Court of Dar es Salaam at Kisutu, in Matrimonial Case No. 24 of 2020. After the dissolution of the marriage between the parties herein, it was ordered that a piece of land situated at Goba Kulangwa area in Dar es Salaam, be equally divided between the parties, that is, between Irene Malanga and Patrick Christopher O'dwer who, in this application, are the applicant and respondent respectively. Displeased with the High Court decision and desirous of appealing against it, the respondent duly lodged a notice of appeal and applied to the Registrar of the High Court for certified copies of proceedings, judgment and decree for appeal purposes, on 30.08.2022. Despite the said intention to appeal, to date, no appeal has been instituted by the respondent triggering the institution of the instant application for an order to strike out the notice of appeal. The application is brought by way of a notice of motion predicated on rules 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit sworn by the applicant's advocate Mr. Audax Kahendaguza Vedasto and strongly resisted by an affidavit in reply sworn by Ms. Mary Brown Francis, learned advocate

for the respondent. According to the notice of motion, the application was premised on two grounds. However, in the course of hearing, the first ground was abandoned. Remaining, was the second ground which is to the effect that, some essential step in the proceedings has not been taken or has not been taken within the prescribed time. When the application was called on for hearing, the applicant was represented by Mr. Audax Kahendaguza Vedasto, learned advocate, whereas the respondent who was in London UK appeared virtually via video conference and was unrepresented. In terms of rule 106 (1) and 2 (7) of the Rules, the parties had filed written submissions for and against the application. At the hearing, Mr. Vedasto and the respondent sought leave for their respective written submissions as well as the contents of the respective affidavits, to be taken as part of their oral submissions for and against the application. Upon taking the floor, Mr. Vedasto who, as we have alluded to earlier, abandoned the first ground of the application, pointed out that, as averred under paragraph 6 of the supporting affidavit, a copy of the respondent's letter to the Registrar requesting for necessary documents for appeal purposes was not served on the applicant within the prescribed period of 30 days of the delivery of the impugned decision as required by the law. It was expounded that the copy

of the said letter was served on the applicant on 07.09.2022 which was a period of 39 days of the delivery of the impugned High Court decision. It was then insisted that failure to serve the copy of the said letter within the prescribed period of time amounts to failing to take an essential step in furtherance of an intended appeal as envisaged by rule 89 (2) of the Rules. In support of the above submissions, Mr. Vedasto placed reliance on the previous decisions of the Court in The Principal Secretary, Ministry of Defence and National Service v. Duram P. Valambhia [1992] T.L.R 401, Tanzania Communications Regulatory Authority v. Cats-net Limited (Civil Application No. 342/01 of 2018) [2020] TZCA 1857 (13 November 2020;TanzLII)/ Paul Francis Kilasara v. Stanbic Bank Tanzania Ltd (Civil Application No. 80/01 of 2019) [2021] TZCA 582 (12 October 2021;TanzLII) and Raymond Obed Kitilya v. The Commissioner for lands, Ministry of Lands, Housing and Human Settlements and 2 Others (Civil Appeal No. 85 of 2016) [2022] TZCA 560 (15 September 2022;TanzLII). Based on the above, Mr. Vedasto implored us to strike out the notice of appeal in question. He pointed out that, by failing to serve the copy of the letter in question on the applicant within the prescribed period of 30 days as required by rule 90 (3) of the Rules, the respondent cannot benefit from the exclusion of the period of time

spent in preparation and delivery of the requested documents for appeal purposes as provided under rule 90 (1) of the Rules. The fact that the copy of the letter requesting for certified copies of requisite documents for appeal purposes was served on the applicant beyond 30 days was not disputed by the respondent in paragraph 5 of the affidavit in reply. The respondent only threw a blame for the delay to serve the applicant within time on the respondent's advocates office clerk. As such, even the respondent, in his oral submissions blamed his advocates arguing that the advocates let him down and further that for a reason that he is living abroad there was nothing he could have done to rescue the situation. Further, in the written submissions against the application, it was argued that serving the applicant with the copy of the letter in question within 30 days of the delivery of the impugned decision is not a legal requirement. It was submitted that the request for the certified copies of requisite documents was duly made by the respondent within 30 days of the delivery of the impugned decision and no law required him to serve the copy of the letter on the applicant within 30 days. It was further contended that the applicant was not prejudiced by the delay in serving her with the copy of the letter in question. At this point, the Court was invited to invoke the overriding

objective principle and dismiss the application. In his brief rejoinder, Mr. Vedasto reiterated his submissions in chief arguing that, since the respondent conceded to have delayed in serving the copy of the letter in question on the applicant, the notice of appeal has to be struck out. He also contended that the argument by the respondent that the delay was caused by the negligence of his advocates cannot be raised in the instant application but would have been a ground in an application for extension of time within which to serve the copy on the applicant. Our starting point is rule 89 (2) of the Rules which provides that: "Subject to the provisions o f subrule (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 o f 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." It is instructive to recapitulate that under rule 89 (2) of the Rules, a notice of appeal can be struck out on either of the following three grounds; One, that no appeal lies, two, that some essential step in the proceedings has not been taken and three, that an essential step has been taken but not within the prescribed

time. In the instant case, the ground raised is that an essential step was taken but not within the prescribed period of time. As also conceded by the respondent, it is glaring that, after the delivery of the impugned judgment on 01.08.2022, the respondent's letter requesting for copies of certified requisite documents for appeal purposes dated 30.08.2022, was not served on the applicant until on 07.09.2022. While it is the applicant's argument that the law required the copy of the said letter to be served on the applicant within 30 days of the delivery of the impugned decision, that is, by 31.08.2022 and not 07.09.2022, the stance by the respondent is that there is no law which is to that effect and further that serving the copy of the letter on the applicant beyond 30 days did not prejudice the applicant. With due respect to the respondent, the argument that there is no law requiring the copy of the letter requesting for certified copies of requisite documents for appeal purposes, to be served on the other party within 30 days of the delivery of the impugned decision is fallacious. The law is settled that a copy of such a tetter must be served on the other party within 30 days of the date of the impugned decision. That law was underscored by the Court in The Principal Secretary, Ministry of Defence and National Service v. Duram P. Valambhia [1992] T.L.R. 387 where it was

stated that: "There must be a time limit within which the appellant is to serve the respondent with a copy o f the letter to the Registrar, We think that the period of 30 days within which the appellant is required under rule 83 (1) [now rule 90(1)] to apply to the registrar for a copy of the proceedings should be construed to be co­ extensive with the period within which the appellant has to send a copy of that letter to the respondent" [Emphasis added] The position of the law has been re-stated by the Court in various decisions including in Novatus Williams Nkwama v. TUGHE (Civil Appeal No. 354 of 2020) [2022] TZCA 40 (21 February 2022;TanzLII) and Wood Menders Company Limited v. Xu Li Jun (Civil Appeal No. 233 of 2020 (unreported). In the latter case, the Court emphatically stated that: "...it is thus a settled position o f the taw that for purposes o f rule 90 (1) and (3) o f the Rules, a copy o f the letter by the appellant to the Registrar applying for the copy o f proceedings for appeal purposes, must be served on the respondent within thirty (30) days o f the date when the impugned decision is delivered," We also note that the position of the law regarding the requirement for a copy of a letter to the Registrar requesting for certified copies of requisite documents for appeal purposes to be served on the other party within 30 days of the delivery of the impugned

decision, has now been codified. Following the amendment made to rule 90 of the Rules by the Tanzania Court of Appeal (Amendment) Rules, 2024 (GN No. 188 of 2024), rule 90 (3) of the Rules, now reads: "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 o f it was served on the respondent within thirty days unless the respondent acknowledges receipt or the Court orders otherwise. '' [Emphasis added] The respondent did also argue that the omission to serve the applicant with the copy of the letter in question within the prescribed period of time did not prejudice the applicant. He thus, invited us to invoke the overriding objective principle and dismiss the application. With due respect, we decline the invitation because as we observed in the case of Paul Francis Kilasara (supra), failure by an appellant to serve a copy of the letter requesting for certified copies of requisite documents for appeal purposes on the respondent within the prescribed period of time, is a fatal irregularity entitling the other party to move the Court to strike out the notice of appeal under rule 89 (2) of the Rules. In that regard, we wish to restate that the overriding objective principle cannot be applied blindly against mandatory provisions of the law. See- Mondorosi Village Council and Others v. Tanzania

Breweries Limited and Others (Civil Appeal No. 66 of 2017) [2018] TZCA 303 (14 December 2018;TanzLII). In view of the foregoing, it is our conclusion that, the application is meritorious. The respondent's failure to serve the copy of the letter requesting for certified copies of requisite documents for appeal purposes on the applicant within the prescribed period of 30 days of the delivery of the impugned decision vitiated not only the notice of appeal but also the 9 intended appeal. An essential step to serve the copy of the letter in question on the applicant was not taken within the prescribed period of time warranting the notice of appeal to be struck out. Consequently, in terms of Rule 89 (2) of the Rules, the notice of appeal lodged by the respondent on 30.08.2022 against the decision of the High Court of Tanzania at Dar es salaam in Civil Appeal No. 90 of 2021, is hereby struck out. Order accordingly. DATED at DAR ES SALAAM this 28th day of February, 2025. L. J. S. MWANDAMBO

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL E. M. FELESHI

JUSTICE OF APPEAL Ruling delivered this 03rd day of March, 2025 in the presence of Mr. Joseph Rugambwa, learned counsel for the Applicant and in the presence of the Respondent in person via video conference from UK, is hereby cer