CIVIL APPLICATION NO 227 OF 17 OF 2023 KASSIM ABDALLAH VS APOLINARY S TARIMO 2

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA. 3.A., FIKIRINI, 3.A. And MLACHA, J.A.^ CIVIL APPLICATION NO. 227/17 OF 2023 KASSIM ABDALLAH APPLICANT VERSUS APOLINARY S. TARIMO 1st RESPONDENT HAN QUING G E ........... 2nd RESPONDENT RAMADHANI SHAURI .. 3rd RESPONDENT (Application to strike out the Notice of Appeal against the Judgment and Decree of the High Court (Land Division) at Dar es Salaam) (Maqhimbi, J.) dated the 12th day of March, 2021 in Land Appeal No. 31 of 2020 RULING OF THE COURT 8th November, 2024 &. 6th February, 2025 LILA. J.A.: From the scanty information availed by the notice of motion and the supporting affidavit affirmed by the applicant and a copy of the High Court judgment, it seems clear that after losing before the District Land and Housing Tribunal for Temeke (the Tribunal) in a dispute over trespass on his land, the applicant successfully lodged an appeal to the High Court, Dar es Salaam Registry in Land Appeal No. 31 of 2020. That decision aggrieved the respondent hence he preferred an appeal to the Court by lodging a notice of appeal on 29/3/2021. l Before this Court now is an application by the applicant made by way of a notice of motion under rule 89(2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) moving the Court to strike out the notice of appeal on the ground that, ever since the notice of appeal was lodged, the respondents have failed to take necessary steps to lodge an appeal. The contention by the applicant was disputed by the respondents through a joint affidavit in reply. In the joint reply affidavit, the respondents asserted that they wrote two letters to the High Court requesting for appeal documents and later made follow-up by writing several correspondences the copies of which were annexed to the reply affidavit. In response, they averred, they were informed that the proceedings by the Tribunal were not typed and later proof-read to which they made a follow-up but were told the chairman who presided over the land dispute had been transferred with the result that they were not yet to be supplied with the requisite appeal documents. Copies of the relevant correspondences were annexed to the joint reply affidavit. In their further averments, they stated that even the applicant's advocate is aware of the efforts made by the respondents which caused the respondent to pray for stay of proceedings in Taxation No. 75 of 2021. Mr. Nyaronyo Mwita Kichere, learned counsel represented the applicant at the hearing of the application while. Mr. Innocent Mwelelwa, also learned counsel, appeared for the respondents. Neither of the parties lodged written submissions as a result we heard them orally argue their respective sides of the application. Much was said by Mr. Kichere but the substance of it all was directed to a single serious contention that the respondent did not take necessary steps within fourteen days after the lapse of ninety (90) days without the Registrar of the High Court supplying the respondents with the requested appeal documents. He had no quarrel with the correspondences made by the respondents to the Registrar of the High Court as explained in the reply affidavit, but he insisted that neither of the letters was written within fourteen days after the Registrar had failed to supply them with the requested appeal documents within ninety (90) days prescribed by the law and that there was no indication that the respondent made any efforts within such fourteen (14) days after the lapse of ninety (90) days. His reliance was on rule 90(5) of the Rules. It was his firm view that whatever was done by the respondents outside the fourteen (14) days after lapse of ninety (90) days designated for the registrar to avail the appeal documents could not rescue the notice of appeal. According to him, the notice of appeal was lodged on 29/3/2021 and the letter to the Registrar requesting to be supplied with appeal documents was written on 19/3/2021 well within the prescribed period of thirty (30) days under the proviso to Rule 90(1) of the Rules. But, he proceeded arguing, as ninety days for the Registrar to prepare and serve them to the respondents lapsed without compliance. The respondent ought to have had made follow-up within fourteen (14) afterwards, something which is not revealed by the various documents annexed to the reply affidavit. To him, that was an inaction on the part of the respondents and such failure warranted the Court to deem the notice of appeal withdrawn in terms of rule 91(a) of the Rules. In fortifying his position, he referred the Court to the guidance it gave in the cases of Daudi Robert Makinga vs Tanzania Holtels and Others, Civil Appeal No. 462 of 2018, Beatus Mbilinyi vs Ahmed Shabiby, Civil Appeal No. 475 of 2020, Rehema Idd Msabaha vs Salehbhai Jafferjee Sheikh and Another, Civil Appeal No. 527 of 2019 (all unreported). On the basis of the arguments and authorities cited, he beseeched the Court to strike out the notice of appeal lodge by the respondent on 29/3/2021. In response, after adopting the averments in the affidavit in reply to be treated as part of his submission, Mr. Mwetelwa then urged the Court to find the applicant's prayer in the application baseless and dismiss it for having been prematurely filed arguing that the respondents took necessary steps as evidenced by various letters written to the Registrar of the High Court asking him and later reminding him to supply them with the requested appeal documents. He referred the Court to paragraphs 4, 5 and 6 of the affidavit in reply. Despite such follow-ups by way of letters, he argued that the Registrar was, until the date of hearing, yet to inform them readiness for collection of the documents. Regarding making follow- up within fourteen days after lapse of ninety (90) days, he referred the Court to the letter dated 12/4/2023 and the reminder letter dated 23/3/23 and insisted that follow-up was made within time. Submitting further, he said the respondents went as far as writing a letter to the Chairman of the Tribunal to no success. Concluding his submission, he argued that service of the requested document is the duty of the High Court and the respondents are not to blame. Acknowledging the position of the law that the intended appellants are duty bound to take necessary steps to process the appeal after lodging the notice of appeal, he referred the Court to the unreported decision in Civil Application No. 315/01 of 2021 between Tanzania Bureau of Standards and Another vs Charles Nyato. Mr. Kichere seized the rejoinder opportunity to further elaborate the basis of the applicant's application stating that the various letters by the respondents as annexed in the reply affidavit have nothing to do with taking steps within fourteen (14) days after the lapse of ninety (90) days without the Registrar supplying the respondents with the requested documents. He argued further that the letter dated 23/3/2023 shows various letters which evidence steps which were taken after fourteen (14) days of the lapse of ninety (90) days the Registrar had failed to supply the respondents with the requested documents. He said the letter relied on was written a month after lapse of ninety days. In the circumstances, he maintained his prayer that the notice of appeal should be struck out following the respondents' failure to take necessary steps to pursue their intended appeal. From the supporting affidavit, reply affidavit and both counsel's arguments before us, it is common knowledge that an intending appellant must take necessary steps after lodging a notice of appeal. Rule 89(2) of the Rules is to that effect as its purpose is to flush out those notices of appeal lodged in Court without the intending appellant taking further steps to pursue the appeal process [See Tanzania Bureau of Standards and Another vs Charles Nyato (supra)]. That Rule provides: - "89(2). Subject to the provisions ofsub-ruie (1), any otherperson on whom a notice o fappeal 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 essentiaI step in the proceedings has not been taken or has not been taken within the prescribed time." It is a legal requirement that a civil appeal ought to be lodged within sixty (60) days of the lodgement of the notice of appeal save where there is exclusion of a period as would be reflected in the certificate of delay issued by the Registrar of the High Court excluding the period of time the Registrar has spent in preparing the requested appeal documents. As opposed to the old position where after writing a letter to the Registrar requesting for appeal documents the intending appellant relaxed or became home and dry waiting to be supplied with the same by the Registrar, to ensure that appeals are lodged timeously, Rule 90(5) of the Rules has not only set out the responsibilities of the intending appellant and the Registrar of the High Court, but also has set the time frame within which to act. The Rule provides: - "90(5). subject to the provisions o f sub-rule (1), the Registrar shaii ensure a copy o f the proceedings is ready for delivery within ninety (90) days from the date the appellant requested for such cop and the appellant shall take steps to collect copy upon being informed by the Registrar to do so, or within fourteen (14) days after the expiry o f the ninety (90) days. The essence and import of this provision has been tested in a number of cases, those cited by the parties being some of them. However, relevant to our case is the case of Cable & Satelite Consultancy Limited vs Mwananchi Group Limited, Civil Application No. 631/01 of 2022 (unreported), in which the Court, after quoting the rule in extensor, lucidly interpreted it thus: - 'it is our settled view that, the cited provision places an obligation to the intending appellant who has requested for the relevant documents for appeal purposes and who, upon expiry o f ninety days after the request was made without being informed by the Registrar that the requested documents are ready for collection; to approach the Registrar asking to be supplied with the documents. It is noteworthy that the intending appellantshould do so within fourteen days after the expiry o f ninety days. In other words, there are two steps to be taken and, in our view, both obligate the intending appellant to approach the Registrar requesting to be supplied by the documents; First step; where the appellant receives the readiness notification within 90 days, he has to approach the Registrar to immediately collect the requested documents, second step; where the appellant receives no notification, he has to approach the Registrar within 14 days after the lapse o f the 90 days so as to be supplied with the requested documents '(Emphasis added) We have bolded a portion of the excerpt with a purpose to demonstrate beyond question, that it is imperative for intended appellant to make a physical follow-up to the Registrar to collect the requested appeal documents after expiry of ninety (90) days without the Registrar supplying the requested documents. The applicant's application to strike out the respondents' notice of appeal is grounded on the failure by the respondents to appreciate and abide by the "second step" The applicant's contention is that upon failure by the Registrar to notify the respondents of the readiness for collection of the requested appeal documents, the respondents, after expiry of ninety days, did not take steps within fourteen days, to approach the Registrar so as to collect the requested documents. Mr. Mwelelwa relied on the copies of various letters to show that the respondents took action. From the record and learned counsel's arguments before us, there is no controversy that the respondents lodged the notice of appeal on 29/3/2021 and they requested for appeal documents on 29/3/2021. Of common knowledge is also that the respondents are yet to lodge an appeal. The threshold issue for us to resoive is whether the letters relied on by the respondents reveals any step being taken within fourteen days after lapse of ninety days without receiving any notice from the Registrar to collect the documents. We have seriously examined the documents forming the record of this application. Since the letter on record requesting for appeal documents was written on 29/7/2021, ninety days to wait for a notification from the Registrar to collect them obviously lapsed on 29/9/2021. In terms of rule 90(5) of the Rules, the respondents were obligated to approach the Registrar to collect the documents within fourteen days reckoned from 30/9/2021 which period ended on 13/10/2021. Neither in the reply affidavit, nor Mr. Mwelelwa's arguments before us, which would however be arguments from the bar hence worthless, suggested that the respondents physically went to the Registrar to collect the documents as required by the law between 30/9/2021 and 13/10/2021. Mr. Mwelelwa strongly relied on the letters written by the respondents to the Registrar particularly that written on 23/3/2023 to remind him to supply them with appeal documents. Apart from a reminder letter not being a requirement under Rule 90(5) of the Rules, no letter was written between 30/9/2021 and 13/10/2021, instead the letter to the Registrar was written on 23/3/2023 and was received by the High Court on 12/4/2023 which is over one and a half years since the fourteen days lapsed. It is plainly obvious that the respondents took no necessary steps to go and collect the applied appeal documents within fourteen days after lapse of ninety days without receiving a notification on the readiness of such documents for collection. We are therefore constrained to agree with Mr. Kichere that the notice of appeal lodged by the respondents should, in terms of Rule 89(2) of the Rules, be struck out. We accordingly grant the application and hereby proceed to strike out the notice of appeal dated 29/3/2021 in respect of the decision in Land Appeal No. 31 of 2020. The applicant to be paid costs of this application by the respondents. DATED at DAR ES SALAAM this 30th day of February, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The judgment delivered this 6th day of February, 2025 in the presence of Ms. Nyaronyo Mwita Kichere, learned counsel for the appellant and the respondent appeared in person, is hereby certified as a true copy of the original. C/M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL