CIVIL APPLICATION NO 107 01 OF 2023 M M INDUSTRIES LTD VS MAGINGA BUSINESS HOLDING COMPANY LTD

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: MWANDAMBO. J.A.. MAIGE. J.A. And KHAMIS. J.A/1 CIVIL APPLICATION NO. 107/01 OF 2023 M.M INDUSTRIES L T D .................................................................APPLICANT VERSUS MAGINGA BUSINESS HOLDING COMPANY L T D ......... ............ RESPONDENT (Application for Striking out Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) ( Hon.Mruma 3.^ Dated 24th October ,2022 In Misc. Civil Case No. 235 of 2019 RULING OF THE COURT 21st & 23rd August, 2024 MAIGE J.A: We have been, in this application, moved, in terms of rule 89 (2) of the Tanzania Court of Appeal Rules (the Rules) to strike out the notice of appeal lodged by the respondent on 4th November,2022 against the decision of the High Court in Civil Application No. 235 of 2019 on the ground that, the respondent has failed to take essential steps in pursuing the intended appeal. i It is common ground that the respondent applied for a copy of proceedings for the purpose of appeal on 24th October, 2022 and a copy thereof served on the applicant. Besides, it is common ground that, under rule 90 (5) of the Rules, the intended appellant is obliged, within 14 days after expiry of 90 days if the requested copy of a proceedings is not supplied by the Registrar, to take necessary steps to collect the documents. More so, it is not in dispute, according to the affidavit in support of the application deposed on the applicant's behalf by Mussa Rashid Lilombo and the affidavit in reply deposed on the respondent's behalf by her principal officer, one Pascal Kinemo that, though the requested documents were not yet supplied to the respondent on 22nd January 2023 when the 90 days period lapsed, it was not until on 8th March, 2023 that the respondent took steps by reminding the Registrar on the documents. That was, the parties are not in dispute, hopelessly out of the prescribed period of 14 days after expiry of 90 days from the date of the request. In his submissions, Mr. Msemwa contended that, the respondent's failure to remind the Registrar on the requested documents within the period stipulated in rule 90 (5) of the Rules, amounts to failure to take essential steps in terms of rule 90(5) of the Rules. Relying on the case of 2 Enifa Kajumba v. Kilimanjaro Truck Co. Ltd (Civil Application No. 47 of 2011) [2013] TZCA 291 (21 February 2013; TANZLII), he urged us to strike out the notice of appeal with costs. In response, Mr, Ludovick while in agreement that rule 90(5) of the Rules was not complied with, he argued that, in as much as the omission arose from the inaction of the Registrar and did not occasion any failure of justice, it can, for the interest of justice, be tolerated under the overriding objective principle. To that effect, he referred us the case of Yakobo Magoiga Gichere v. Penina Yusuph (Civil Application No. 55 of 2017) [2018] TZCA 222 (10 October 2018; TANZLII) where omission to reflect the name of the chairperson who presided over the proceedings of the ward tribunal was tolerated under the overriding objective because it did not occasion injustice on the appellant. Having considered the rival submissions in line with the affidavit and the affidavit in reply, the issue for determination is whether failure to remind the Registrar on the requested documents under rule 90(5) of the Rules is curable under the overriding objective principle. This is not the first time the Court is facing an issue like this. In different occasions, we have held that such requirement is mandatory, failure of which, renders the respective notice of appeal liable to be struck out. For instance, in 3 Daudi Robert Mapuga & 417 Others v. Tanzania Hotels Investment Ltd & Others (Civil Application No. 462 of 2018) [2021] TZCA 12 (11 February 2021; TANZLII), it was held; "White we acknowledge that the Registrar is plainly blameworthy for his inaction in supplying the requested documentswe think the respondent's diligence is seriously in question. We are unprepared to let the respondents claim they were home and dry. It would be most illogical and injudicious we think, to accept the respondent's wait infinitely for a copy o f the proceedings while they take no action on their part to follow up on their request to the Registrar. To say the least, this infinite inaction in our respectful view, offends the end o fjustice. " A similar position was taken in Rehema Idd Msabaha v. Salehbhai Jafferjee Sheikh and Another (Civil Application No. 527/17 of 2019) [2022] TZCA 105 (8 March 2022; TANZLII) and Msae Investment Co. Limited v. National Bank of Commerce Limited (Civil Application No. 427 of 2021 [2023] TZCA 17278 (26 May 2023; TANZLII). In view of the foregoing, we find merit in the application and we grant it. Accordingly, the notice of appeal lodged on 24th October, 2022 is struck out with costs. Ordered accordingly. DATED at DAR ES SALAAM this 22nd day of August, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered this 23rd day of August, 2024 via teleconferencing in the presence of Mr. Jerome Msemwa, learned counsel for the Applicant and Mr. Nickson Ludovick, learned counsel for the Respondent, is hereby certified as a true copy of the original. 5