CIVIL APPLICATION NO 37 01 OF 2023 MONICA NYAMAKARE JIGABHA VS MUGETA BWIRE BHAKOME

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL, J.A.. MASOUD, 3.A And MDEMU. J.A.^ t CIVIL APPLICATION NO. 37/01 OF 2023 MONICA NYAMAKARE JIGABHA........ ............................ ........... APPLICANT VERSUS MUGETA BWIRE BHAKOME (Administrator of the Estate of the Late MUSIBA RENI JIGABHA........... .............RESPONDENT (Application to strike out the Notice of Appeal from the order and ruling of the High Court of Tanzania, at Dar es Salaam) (Mugeta, J.) dated the 7th day of February, 2022 in Probate and Administration Cause No. 41 of 2016 RULING OF THE COURT 21st & 30thAugust, 2024 MDEMU, J.A.: The application before us is for the striking out of the notice of appeal which was filed by the respondent on 28th February, 2022. The notice intends to challenge the decision of the High Court (Mugeta J.) which rejected the move of the applicant to bequeath part of the deceased estate to a person not in the list of heirs. According to the record of the application, the respondent did that in the course of filing a statement of accounts in the execution of his duties as the administrator of the estate of the deceased. i The application is premised under rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is deposed in the supporting affidavit that, the decision which the respondent intends to challenge in the intended appeal was delivered on 7th February, 2022. Twenty-one days after, that is, on 28th February, 2022, the respondent lodged the notice of appeal intimating to challenge the said decision. Along with the filing of that notice, the respondent, by his letter dated 25th February, 2022 applied to the Deputy Registrar to be supplied with copies of the proceedings, ruling and drawn order for appeal purposes. It is deposed in the supporting affidavit further that, the respondent did not take any essential steps in pursuing the intended appeal, hence the instant application inviting us to strike out the notice of appeal. The respondent on the other hand filed an affidavit in reply resisting the granting of the application alleging to have made a close follow up of the requested documents but have not received any. Given the revelling position, we had to hear the parties on 21st August, 2024 in which the applicant had the services of Ms. Banana F. Kalema, learned advocate, whereas, the respondent was ably represented by Mr. Novatus M. Muhangwa, also learned counsel. The brief oral submission in support of the application by Ms. Kalema hinged on the fact that, after the filing of the notice of appeal on 2 28th February, 2022, the respondent did one job only, that is, he wrote a letter to the Deputy Registrar requesting to be supplied with the proceedings, the impugned ruling and drawn order. That letter, as deposed in paragraph 4 of the supporting affidavit, was filed in the triai court on 1st March, 2022. Besides the filing of that letter, the learned counsel submitted that, the respondent never made any further follow up of the requested documents within the dictates of rule 90 (5) of the Rules. In her argument, subrule (5) of that rule obliges the intended appellant to follow up the requested documents to the Registrar within fourteen (14) days after the lapse of ninety (90) days. On that account, the learned counsel beseeched us to strike out the notice of appeal for want of essential steps on the side of the respondent. In response thereof, Mr. Muhangwa was also very brief. Elaborating on the contents of an affidavit in reply which he stood by it, the learned counsel's argument was that, as the respondent was not informed by the Deputy Registrar that the documents were ready for collection, there was nothing the respondent could have done in terms of rule 90 (5) of the Rules. He thus referred us to the decision of the Court in Power One Africa Limited v. Zanzibar Telecom Limited, (Civil Application No. 342/16 of 2020) [2021] TZCA 576 (8 October, 2021) TANZLII persuasively that, it is only upon notification from the Deputy Registrar to collect the 3 requested document, is when the respondent was required to follow up such documents after the expiry of ninety (90) days. He also drew our attention that, strangely, in the instant application, the applicant was notified by the Deputy Registrar that the requested documents were ready for collection, but the respondent, who requested the documents, was not notified. Elsewhere in that affidavit in reply, particularly in paragraph 8, the learned counsel added that, the respondent closely followed up to the Deputy Registrar to be supplied with the requested documents without success. He thus summed up that, the respondent took essential steps sufficiently enough to satisfy the dismissal of the instant application for want of merits by the Court. Rejoining briefly, Ms. Kalema first distinguished the case of Power One Africa Limited (supra) and hurriedly condemned the respondent for failure to collect documents which, to date, he remains complaining to have not been supplied. Having heard from the submission of the counsel and upon our dose examination of the notice of motion and affidavits, the question for our determination is whether the respondent took essential steps after the filing of the notice of appeal in pursuance of the intended appeal. What we have essentially gathered from the argument by the counsel for the parties is the contentious position regarding the application of rule 90 (5) 4 of the Rules. Whereas the applicant's counsel states that the respondent was legally obliged to follow up the documents within fourteen (14) days after the lapse of the ninety (90) days, Mr. Muhangwa's view was that, the respondent could only do that upon the requisite notification from the Deputy Registrar that the requested documents are ready for collection. We first reproduce subrule (5) of rule 90 of the Rules for ease of reference as follows: "(5) Subject to the provision o f subruie (1), the Registrar shaii ensure a copy o f the proceedings is ready for deiivery within ninety (90) days from the date the appeiiant requested for such copy and the appellant shaii take steps to collect copy upon being informed by the Registrar to do so , or within fourteen (14) days after the expiry of the ninety (90) days." In the above quoted subrule, there are two legal obligations. One, is the obligation of the Registrar to ensure the requested documents are ready within ninety (90) days and inform the intended appellant to collect them and two, is the responsibility of the intended appellant to collect the requested documents. Now to the revelling argument of the parties as to when the intended appellant should perform that responsibility, we begin our deliberation with the position we took in Rehema Idd Msabaha v. Salehbhai Jafferjee Sheikh & Another, (Civil Application No. 527/17 of 2019) [2022] TZCA 105 (8 March, 2022) TANZLII. We stated in that case at page 13 of the decision that: "It is our settled view that, the current rule 90 (5) of the Rules, expressly places an obligation to the appellant who requested for the relevant documents for appeal purpose and who on expiry o f ninety (90) days, has not been 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 imperative that he should do so within fourteen days alter the expiry o f the ninety days. It should also be emphasized that when the appellant takes such step, there must be a proof to that effect." [emphasis supplied] Sitting at Kigoma, the Court also took a similar view in the case of Kagozi Aman Kagozi (Administrator of the Estate of the Late Juma Selemani v. Ibrahim Selemani & Six Others, (Civil Application No. 290/11 of 2021) [2022] TZCA 559 (16 June, 2022) TANZLII at page 14 through 15; there we stated: "It is apparent from the above reproduced provision that though the Registrar o f the High Court is required to ensure that the requested copy o f proceedings is ready for delivery within 90 days, equally important the appellant must take steps to collect the same within the reasonable time after 6 being so informed. Besides, the appellant is also enjoined to follow up on the availability o f the requested proceedings after 90 days and there is no information from the Registrar of the High Court. Therefore, in terms o f Rule 90 (5) o f the Rules, it is not expected that the intended appellant would remain silent without reminding the Registrar o f the High Court on the status o f the requested copy o f proceedings after the expiry o f 9 0 days." [emphasis supplied] Reverting to the matter at hand and having considered the foregoing legal position, the respondent deposed in paragraph 8 of the affidavit in reply to have regularly followed up the requested documents, specific on 13th June, 2022; 29th June, 2022 and 13th February, 2023. As seen, the first follow up was initiated in the fourteenth day after the lapse of the ninety (90) days. The applicant however did not substantiate how the said follow-ups were made because he did not even annex any letter to the affidavit in reply nor did he provide any further and better particulars on the manner how he followed up the requested proceedings, ruling and drawn order. The respondent ought to have deposed in an affidavit in reply the person to whom he made a physical follow-up and attach thereto an affidavit of the said person. We think the requirement of proof of such follow ups in the circumstances of this matter is essential 7 as we stated in Rehema Idd Msabaha (supra). We therefore decline to side with Mr. Muhangwa that there was proof of such follow ups merely because it is deposed in an affidavit in reply. It is our view that, the making of depositions in an affidavit alone without supplying evidence in such depositions on proof of facts deposed thereto, make the deposed facts in that affidavit unproven. We equally take note and distinguish our stance in Power One Africa Limited (supra) which Mr. Muhangwa sought reliance and beseeched us to hold that the respondent took necessary steps. We have taken that stance because, unlike in Power One Africa Limited's case (supra), the applicant in the application at hand has failed to demonstrate through documentations on the alleged follow ups which he deposed in paragraph 8 of the affidavit in reply. We said, and worthy repeating that, for proof of such follow-ups, it was relevant for the respondent to demonstrate in the affidavit in reply on how the said follow-ups were made. In absence of such evidence, we have no hesitation to hold that there is no evidence to prove that the respondent followed up the requested proceedings, ruling and drawn order within fourteen (14) days after the expiry of ninety (90) days. In the event, and for the foregoing, we are satisfied that the application at hand is meritorious. Accordingly, we are constrained to 8 allow it. Consequently, in terms of rule 89 (2) of the Rules, the notice of appeal filed by the respondent on 28th February, 2022 is hereby struck out. In the circumstances of the present application, we do not make an order as to costs. It is so ordered. DATED at DAR ES SALAAM this 27th day of August, 2024. B. M. A. SEHEL JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 30th day of August, 2024 in the presence of the Applicant in person, Respondent in person and in the absence of Ms. Banana Kalema and Mr. Novatus M. Muhangwa, both learned counsel for the Applicant and the Respondent respectively though duly notified, is hereby certified as a true copy of the original. U \\ A. L. KALEGEYA ISl] DEPUTY REGISTRAR COURT OF APPEAL 9