CIVIL APPEAL NO 196 OF 2021 JOSEPHINE SAMSON KIWIA VS BANK OF AFRICA TANZANIA LIMITED 2 OTHERS

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA CIVIL APPEAL NO. 196 OF 2021 fCORAM; MWANDAMBO. J.A.. MASHAKA. J.A And MDEMU, J.A.) JOSEPHINE SAMSON KIWIA...................................................... APPELLANT

VERSUS BANK OF AFRICA TANZANIA LIMITED.................................1st RESPONDENT MABUNDA AUCTIONEER MART CO. LTD .............................. 2nd RESPONDENT VINCI GROUP LIMITED...................................................... 3rd RESPONDENT MZALENDO AUCTION MART & COMPANY LIMITED............................................................ 4th RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Matupa. J.) dated the 22nd day of January, 2019 in Land Case No. 22 of 2017

RULING OF THE COURT 15th & 18th July, 2024 MASHAKA, J.A.: When the appeal was called on for hearing before us on 15th July, 2024, the appellant was present before us and had no representation. The 1st, 2nd and 4th respondents were represented by Dr. George Mwaisondola, learned counsel, whereas the 3rd respondent was represented by Mr. Deya Paul Outa, also learned counsel. i At the outset, Dr. Mwaisondola rose and informed the Court that he was only served with the notice of hearing on 19/06/2024 but had no documents concerning this appeal. He clarified that, his clients have not been served with the notice of appeal in compliance with rule 84 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and the Memorandum of Appeal has not been served to them in compliance with rule 97 (1) of the Rules. He further submitted that the letter by the appellant to the Registrar of the High Court requesting for certified copies of proceedings, judgment and decree in compliance with rule 90 (3) of the Rules was also not served to them. He concluded that the consequences are that the appeal is incompetent and deserves to be struck out. Mr. Outa on his part supported the submission of Dr. Mwaisondola. He further submitted that, they were not served with the stated documents more so, the letter to the Registrar requesting for the supply of the proceedings, judgment and decree. Thus, the

appellant could not enjoy the exclusion of days in the Certificate of Delay under rule 90(1) and (3) of the Rules. 2 It was his argument that the appellant was therefore, required to lodge her appeal within sixty days from the date of lodging the notice of appeal. He added that, Emmy Ephron Ngowi, was also likely to be affected by the decision of the Court hence she was supposed to be served with the notice of appeal and the record of appeal. He fortified his argument with the case of Khantibhai M. Patel v. Dahyabhai F. Mistry [2003] T.L.R.

437. The appellant being a lay person had nothing to counter. She asserted that her advocate, Herymick Chagula who prepared the record of appeal assured her that he had served the respondents but she could not provide any proof of it. According to the submissions for and against, and having examined the entire record of appeal, the issue for our determination is whether the appeal is competent before us. Before we proceed to determine the raised points of objection, we wish to remind the parties on the Rules which provide for the basic steps and conditions to be adhered to by an aggrieved party so as to access the Court. The respondents and the 1st appellant were not served with the notice of appeal, copy of the letter to the Registrar requesting to be supplied with the necessary documents for appeal purposes and the memorandum and record of appeal. « Rule 83 (1) and (2) of the Rules provides that, any person who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar of the High Court and such notice shall be lodged within thirty days of the date of the decision against which it is desired to appeal. Further in accordance with rule 84 (1) of the Rules, the intended appellant is required before or within fourteen days after lodging the notice of appeal to serve copies of the same to all persons who seems to be directly affected by the

appeal. In this appeal, the impugned decision was delivered on 22nd January, 2019. On 21st February, 2019 the appellant lodged the notice of appeal as gleaned from page 405 of the record of appeal well within the prescribed time. However, looking at the notice of appeal, there is no indication that a copy of it was served on the respondents or even Emma Ephron Ngowi who was the first plaintiff before the trial court. The consequence of non-compliance with rule 84(1) and (2) as stated in a number of cases, as fatal to the appeal. See for instance: Bank of India (Tanzania) Limited v. Y.P. Road Haulage Limited & Others, Civil Appeal 322 of 2017 [2021] TZCA 461 (3 September, 2021) TANZLII, National Microfinance Bank v. Muyodeso, Civil Appeal 289 of 2019 [2021] TZCA 533 (28 September, 2021) TANZLII and Grumeti Reserves Limited v. Morice Akiri, Civil Appeal No. 334 of 2019 [2021] TZCA 636 (3 November, 2021) TANZLII. The Court held in Bank of India (Tanzania) Limited (supra) that: "It is our considered view therefore that, the importance of serving the respondent with the notice o f appeal is to alert him that an appeal is being preferred thus enable him to prepare for it. Failure o f which is fatal to the appeal." The second point, is on failure to serve the respondents with a copy of the letter to the Registrar requesting for the copies of proceedings, judgment and decree appearing

at page 398 of the record. Indeed, as argued by the counsel for the respondents, the said letter was neither copied nor served on the respondents in accordance with rule 90 (3) of the Rules. As provided under rule 90 (1) of the Rules, the appellant is not entitled to rely on the exception under the said rule unless his request for the copies of requisite documents is served on the respondent. Therefore, failure to serve the respondents with the copy of the letter addressed to the Registrar is in contravention with rule 90(3) of the Rules and it renders the certificate of delay invalid. (See: Moshi Municipal Council v. J.S. Khambaita Limited & Another, Civil Appeal No. 193 of 2020 [2023] TZCA 17381 (10 July, 2023) TANZLII. Nevertheless, at page 407 of the record, the certificate of delay excludes days from 28th January, 2019 when the appellant requested for copies of proceedings, judgment and decree from Registrar to 20th December, 2021 when the appellant acknowledged through a letter dated 20th December, 2021 confirming to have received the said certified copies. The excluded period of 1062 days cannot benefit the appellant for her failure to serve the respondents the said letter to the respondents. In view of the omission, the Registrar was wrong to issue the certificate of delay. Thus, the appellant was required to lodge his appeal within sixty days of the date when the

notice of appeal was lodged as correctly argued by Mr. Outa. In calculating from the date, the 2nd appellant lodged her notice of appeal on 21st February, 2019 to 2nd February, 2021 when the appeal was filed, It Is clear that the appeal Is time barred and Incompetent, In view of the foregoing, we are constrained to sustain the points of preliminary objection raised by the counsel for the respondents, and find the appeal Is Incompetent. All said, we accordingly strike out the purported appeal with no order as to costs. DATED at MWANZA this 18th day of July, 2024. L. J. S. MWANDAMBO

JUSTICE OF APPEAL L. L. MASHAKA

JUSTICE OF APPEAL G. J. MDEMU

JUSTICE OF APPEAL Ruling delivered this 18th day of July, 2024 in the presence of the Appellant in person, Dr. George Mwaisondola, learned counsel for the 1st, 2nd and 4th Respondent and Mr. Deya Paul Outa, learned counsel for the 3rd Respondent isiiiefebv certified as a true copy of the original.