mohamed enterprises tanzania limited vs kassim s athuman others 2023 tzca 17864 14 november 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. 3.A.. KAIRO. J.A.. And MURUKE, J.A.) CIVIL APPLICATION NO. 763/18 OF 2022 MOHAMMED ENTERPRISES (TANZANIA) LIMITED ....... ........... APPLICANT VERSUS KASSIM S. ATHUMAN.................... .............................FIRST RESPONDENT DAUDI LUCAS KAHEMA.................... .................. SECOND RESPONDENT MSHAM ABDALLAH KILINDO.....................................THIRD RESPONDENT JABIR RASHIDI MPITA.................................. ...... FOURTH RESPONDENT JUMA SAID NGAPU.................................................... FIFTH RESPONDENT DEODATUS SIMON WISIKO...................................................................... .. SIXTH RESP CHUMA ABDUL NGOMOLA................................... SEVENTH RESPONDENT SAID JUMA ALLY................................ .................... EIGHTH RESPONDENT SALEHE OMARY SALEHE...................................... NINTH RESPONDENT (Application for striking out notice of appeal from of the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) ( Mteule. J.l Dated the 26th day of July, 2022 in Labour Revision No. 112 of 2021 RULING OF THE COURT 8th & 14th November, 2023 NDIKA. J.A.: The respondents, who were previously employed by the applicant as loaders, were aggrieved by the decision of the High Court of Tanzania, Labour Division at Dar es Salaam ("the High Court") dated 26th July, 2022 i in Labour Revision No. 112 of 2021. By that decision, the High Court vacated the award made in their favour by the Commission for Mediation and Arbitration, which had upheld their joint claim of unfair termination of employment. In effect, the High Court held that the respondents were rightly retrenched from their employment as the applicant fully complied with the dictates of the law, which included payment of terminal benefits and issuance of certificates of service. As an initial step in pursuit of justice, the respondents jointly lodged a notice of appeal on 22nd August, 2022 to manifest their intention to appeal to this Court. Inversely, the applicant now moves us to strike out the aforesaid notice of appeal claiming that the respondents have failed to take essential steps in furtherance of the intended appeal within the prescribed time. In support of the application, Mr. Hassan Dewji, a principal officer of the applicant, deposed to an affidavit. The respondents, it seems, were particularly unresponsive to this motion. Apart from electing to lodge no affidavit in reply, none of them attended the hearing before us on 8th November, 2023. According to the affidavit of the court process server, Mambalu Idd, dated 3rd November, 2023, the respondents were served with the notice of hearing on 3rd November, 2023 through their legal counsel, Mr. Godlove Godwin of Blue Ice Attorneys, at Apartment 01, 2nd Floor, NBC Building, Dar es Salaam. Having been satisfied that the respondents defaulted appearance as they were duly served with the notice of hearing on 3rd November, 2023 as alluded to above, we granted a prayer by Mr. Adam A.E. Mwambene, learned counsel for the applicant, for the hearing to proceed in the absence of the respondents pursuant to rule 63 (2) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). In essence, it is contended on behalf of the applicant that after the respondents had lodged their joint notice of appeal, they took no further steps in pursuit of their intended appeal and that by the time this matter was lodged, that is 21st December, 2022, ninety-two days had elapsed without the intended appeal being filed. We must interpose here to note that by 21st December, 2022, one hundred and twenty-one days had expired, not ninety-two days claimed by the learned counsel. Concluding, Mr. Mwambene urged us to grant the application and proceed to strike out the impugned notice of appeal. At first, we wish to state that it is settled that the Court is empowered under rule 89 (2) of the Rules, upon application by any person 3 on whom a notice of appeal was served or ought to have been served, to strike out any notice of appeal or any appeal on the ground that "no appeal ties or that some essentiaI step in the proceedings has not been taken or has not been taken within the prescribed time. "For clarity, we extract the said provision as follows: "(2) Subject to the provisions o f subruie (1), any other person on whom a notice o f appeai was served or ought to have been served may at any time; either before or after the institution o f the appeal\ appiy 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 essentia! step in the proceedings has not been taken or has not been taken within the prescribed time. " [Emphasis added] In the instant matter, the sticking question is whether the respondents failed to take essential steps within the prescribed time rendering the impugned notice of appeal liable to be struck out. In resolving this issue, we have scrutinized the notice of motion and the supporting affidavit while heedful of Mr. Mwambene's unopposed submissions. At first, we wish to observe that since the respondents filed no affidavit in reply to contest the depositions in support of the application, the factual setting of this matter as explained by Mr. Mwambene is uncontroverted. As hinted earlier, the respondents duly lodged the questioned notice of appeal on 22nd August, 2022 to register their intention to appeal against the decision of the High Court dated 26th July, 2022, but they took no further steps thereafter. Rather ruinously, they did not apply in writing for a copy of the proceedings from the Registrar of the High Court for them to be entitled to exemption of the period necessary for preparation and delivery of such copy in terms of rule 90 (1) and (3) of the Rules. In the premises, they ought to have instituted their intended appeal by presenting their memorandum and record of appeal within sixty days after filing the assailed notice of appeal. Reckoned from 22nd August, 2022, the sixty days limitation period expired on or about 21st October, 2022. By the time this application was filed, one hundred and twenty-days had elapsed. Given these facts, we agree with Mr. Mwambene that the respondents failed to institute their intended appeal within the prescribed time. In the upshot, we grant the application, and, consequently, strike out the respondents' notice of appeal dated 22nd August, 2022 against the decision of the High Court in Labour Revision No. 112 of 2021 dated 26th July, 2022. This matter being a labour dispute usually not amenable to awards of costs, we make no order as to costs. DATED at DAR ES SALAAM this 10th day of November, 2023. G. A. M. NDIKA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 14th day of November, 2023 in the presence of Mr. Adam Mwambene, learned advocate for the applicant and in the absence of the respondents, dully served is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 6