20180326 TZCA Dar es Salaam 1

· ·' ·· ..,- .1.: • •. i: IN THE COURT Of APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUSSA, J.A., MWARIJA, J.A., And MWANGESI) CIVIL APPLICATION NO .. i07 /17 OF 2017 JACOB KIBWANA suing through his administratix VERONICA KIBWANA ............................ : ........... APPLICANT . VERSUS KHAMIS ALLY KHAMIS ......................... ~ ............................... RESPONDENT [Appeal from the Judgment and decree of the High Court of Tanzania {Land Division) at Dar es Salaam] (Mwaimu, J.) Dated 11 th day of June, 2014 In land Case No. 67 of 2004 RULING OF THE COURT 14th f=ebruary & 3 rd April, 2018 MWARIJA, l.A.: By a notice of motion filed on 5/5/2017; the applicant has moved . the Court to grant him an order striking out the notice of appeal lodged in this Court on 23/7/2014. The ground upon which the prayer is based, is the failure by the respondent to institute the intended appeal within the prescribed period of sixty days from the date of filing the notice of appeal. The application which has been brought under Rules 91 (a) and 89 (2) of the .. Tanzania Court of . Appeal . _Rules, . .. 2009 (th~ Rules), is supported 1 l ' by arr· affidavit sworn by the applicant, Veronica Kibwana who '.is th;e ; ---~' 1 ,_- . .,,, administratrix of Jacob Kibwana. In the nc • ce of appeal sought to be struck out, t~e. respondent, Khamis Ally Khamis intends to appeal against the decision of the High Court (Mwaimu, J., as he then was) in Land Case No; 67 of 2004 _handed down 9n 11/6/2014. · · ,, .....At the hearing of the application~· the applicant was repres~hted· by Ms Ritha Chihoma, learned counsel while the respondent had the services ~ of Mr. Juma · Mtatiro, learned counsel. Ms Chihoma who had fired her written submission in compliance with Rule 106 (1) of the Rules did not have much to state in her· oral submission. That was particularly so because, the respondent did neither file an affidavit in· reply nor written . . . . submission _in reply to the applicant's submission in ~Kcordance with Rule ,. . _In her written submission, Ms Chihoma states that, from the letter of the Registrar of the High Court dated 10/2/2017, addressed to the ,' respondent's counsel and copied t9. the applicant, ·:~he responde~t was informed to. collect the copies of documents nec~ssary ,,. . for. appeal ' '". purposes as had been requested for·: by him. Actordi~g to the learned 2 ·· couhsel/from that letter, the copies were applied for by .the respondent.· .. through a letter dated 17/6/2016. Despite that notification howe_ver, Ms Chihoma submitted, the respondent has not yet institute~ the intended appeal as r~quired under Rules 90 (1) of the Rules. She argued further that, according to the Registrar's letter, the copies were applied for o'utside the prescribed period of 30 days provided under the proviso to Rule 90 (1) of the Rules and therefo~e, the respondent cannot rely on the letter of his application for e?(:clusion of . I'- . ,_,': time. The learned counsel added however that, even if the period of filing •. the intended appeal was to be computed from the date of the Registrar's letter, the prescribed period of sixty days had long expired hence a contravention of Rule 90 ( 1) of the Rules. In support of her submission, the learned counsel cited the decisions of the Court in inter alia, the cases of Itengeja v. Kar:np~n.hya,,~,- Kusindika Mbegu_ za Mafuta ltd [1997] TLR 148 and Greven Ngomuo v. Isaya Swai, Civil Application No. 149 of 2016. ·she prayed . that the notice of appeal be struck out for the respondent's failure to comply with Rule_ 90_ (1) of the Rules . . . ·. .. 3 · ·.· ·-in his oral submissidn,·l"llr. Mtatiro ventured to submit on matters of· facts intending to ~how that the documents which the respondent had applied to be suppl'ied with, for the purpose of instituting the intended appeal, are not yet ready for collection and that if they are ready,.. the respondent has not been notified to, that effect. The learned counsel contended that he has not received the· Registrar's letter although the same is addressed in the counsel's own name. From the submissions made by the learned counsel for the parties, · the issue is whether or not the respondent has failed to take necessary • steps to institute the intended appeai. The fact that the respondent applied for copies of the documents necessary for appeal purpose and the contention that the respondent has been notified to collect them, .is . contained in paragraph 4 of the affidavit filed in support of the application. That paragraph states as follows:- "That the High Court of Tanzania/ Land Division at Dar es Salaam vide their letter dated 10.02.2017 which was copied to us informed the respondents that the copies of proceedings/ Judgment and,.. decree ate ready for;- .- ! ~ .;\ ~ ' ., • • collection. A copy of the letter is hereto ·an.nexed 111arked,.'JK2r and leave of the court is craved to form · part of this affidavit. rr ·f As stated above, the respondent did not file an affidavit in reply. Mr. Mtatiro cannot therefore, seriously counter from the bar, the affidavital evidence of the applicant, more so, where the applicant has produced the Registrar's letter showing that the respondent, through his counsel was informed that the documents were ready for collection. Notwithstanding the above stated position, even if we were·to ·agree · with Mr. Mtatiro that he did not receive the Registrar's letter, since from that letter, the copies were applied for on 17/6/2016 while the decision intended to be appeaied against is dated 11/6/2014, the respondent's letter of application would still be invalid for exclusion of the period spent in the preparation of the documents. This is by operation of the proviso to Rule 90 (1) of the Rules which state as follows:- "90 (1) Subject to the provisions of Rule 128/ an appeal shall be · instituted by· lodging in the appropriate registry, within sixty days of the date when the notice ·.. .of appeal was lodged with- j (a) ... . (b} ... . (c) ... . 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 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 delivery of that copy to the appellant. " [Emphasis added]. In view of the 9 bove stated reasons, we disagree with the contentions made by the learned counsel for the respondent. Having found firstly, that the respondent had failed to institute the ' . intended appeal within sixty days from the date of the.decision as required under Rule 90 (1) of the Rules and secondly; that he did not apply, for the necessary documents within the period_. of .thirty. days prescribed under ~ ' ' the proviso to that Rule; there is. no gainsaying· . ,· tha'.t the application . . is '. meritorious. , .... . . . • Ih the event; we grant the prayer and hereby strike out the notice of appeal under Rule 89 (2) of the Rules with costs. DATED at DAR ES SALAAM this 26th day of March, 2018. K. M. MUSSA JUSTICE Of APPEAL A. G. MWARIJA JUSTICE OF APPEAL S.S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ ' A.H. MS, MI DEPUTY REGISTRAR COURT OIF APPEAl ··.: : . 7 . .· . .