CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KOROSSO. 3.A. RUMANYIKA. J.A. And ISSA. CIVIL APPLICATION NO. 663/3 OF 2024 M/S BIOSUSTAIN TANZANIA LIMITED.................................. APPLICANT VERSUS AMOSI MANYAMA............................................................1™ RESPONDENT GODSON S. URIO............................................................ 2nd RESPONDENT YUSUPHU SAIDI..............................................................3rd RESPONDENT MOSHI YUSUPHU............................................................ 4th RESPONDENT FARIDA OMARI............................................................... 5th RESPONDENT PETER FRANK..................................................................6™ RESPONDENT ASHA OMARI...................................................................7™ RESPONDENT OMARY ATHUMANI......................................................... 8™ RESPONDENT ISSA YUSUPHU............................................................... 9™ RESPONDENT JUMANNE SALUM MKINDA............................................ 10th RESPONDENT JUMANNE JUMA............................................................ 11™ RESPONDENT HAMISI HANGO............................................................. 12™ RESPONDENT MOHAMEDI RAMADHANI...............................................13™ RESPONDENT SARA ISSA.................................................................... 14™ RESPONDENT JUMA KIBERITI.............................................................15™ RESPONDENT MOHAMEDI IBADA........................................................ 16™ RESPONDENT (Application to strike out Notice of Appeal arising from the Judgment of the High Court of Tanzania at Dodoma) fMansoor. J.1 dated 14th day of August, 2017 in Land Case No. 28 of 2016 RULING OF THE COURT 21st & 26th March, 2025 RUMANYIKA. 3.A.: By way of notice of motion predicated under Rule 89(2) of the Tanzania Court of Appeal Rules, 2009 ("the Rules") the applicant is 1 seeking to strike out notice of appeal against the decision of the High Court of Tanzania dated 14th August, 2017 in Land Appeal No 28 of 2016. The application is supported by an affidavit sworn by Mr. Cheapson Luponelo Kidumage, learned counsel for the applicant. He averred that, since the respondents filed the said notice and were granted leave to appeal on 12th September, 2022 and 24th November, 2023 respectively, they did not take any further essential steps towards intended appeal. The respondents did not file an affidavit in reply to oppose the application. The background to this application, briefly, is stated as follows; that the applicant successfully instituted Land Application No. 52 of 2014 against the respondents at the District Land and Housing Tribunal for Singida at Singida ("the DLHT"). In that case she sought for, among other reliefs, a declaratory order that she is the lawful owner of Plot No. 179 Block DD located at Unyankhae area within Singida Municipality ("the suit property"). Dissatisfied, the respondents appealed to the High Court, challenging the DLHT's decision vainly. As indicated earlier on, they lodged a notice of appeal and later successfully sought leave to appeal to this Court vide Misc. Land Application No. 32 of 2020. Despite the respondent's manifested quest to appeal from there, they took no further essential steps in pursuit of the intended appeal. It is in view of the above account of the respondents' inaction that the applicant was prompted and filed the instant application on 25th June 2024. On the date that the application was placed before us for hearing, Messrs. Cheapson Luponelo Kidumage and Armando E. Swenya, learned Counsels appeared for the applicant. The respondents did not enter appearance despite being served through Advocate Sosthenes Peter Mselingwa as is exhibited by copy of the returned notice of hearing. Therefore, in the circumstances, the hearing of the application proceeded in the absence of the respondents in terms of rule 63(2) of the Rules. On set, Mr. Swenya adopted the grounds presented in the notice of motion and in the supporting affidavit. Expounding on the said grounds of the application, Mr. Swenya contended that, about two hundred and ten days of their inaction had passed from 12th September, 2022 when the respondents lodged the notice of appeal and obtained leave to appeal. He reckoned those days from 25th June, 2024 when the instant application was filed. Therefore, relying on rule 89(2) of the Rules, Mr. Swenya implored the Court to strike out the said notice of appeal. He bolstered his point citing the Court's decision in NBC Limited v. Rose E Shirima (Civil Application No 16918 of 2022) [2024] TZCA 51 (12 February 2024; TanzLII). In that case, we stressed that, the respondent's failure to take other essential steps after the filing of a notice of appeal, to strike it out is quite inevitable in terms of rule 89(2) of the Rules. Therefore, the learned counsel beseeched the Court to strike out the abandoned notice of appeal. Considering the grounds presented in the notice of motion, the supporting affidavit and Mr. Swenya's submission, the issue is whether the notice of appeal is liable to be struck out as requested. It is common ground that, the institution of the instant application is regulated under rule 89(2) of the Rules. That provision reads; "Subject to the provisions o f subrule (1), any other person on whom a notice of appeal was served or ought to have been served may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice of appeal or the appeal\ as the case may be, on the ground that no appeal lies or that some essentiai step in the 4 proceedings has not been taken or has not been taken within the prescribed time" (Emphasis added) The Court has amplified the provision above on several occasions including in The Registered Trustees of Kagera Farmers Trust Fund v. CRDB Bank Limited (Civil Application No. 58 of 2015) [2016] TZCA 724 (1 September 2016; TanzLII) that: "According to Rule 89 (2) the application can be brought in Court on two major grounds. Firstly, it can be brought on a question o f law, that is when no appeal lies. Secondly, when there is failure to take essential steps." In view of the excerpt above, we are mindful of rule 90 of the rules which prescribes the essentials of instituting an appeal to the Court. As such, the notice of appeal was duly lodged on 12/09/2022 as hinted earlier on. However, until when the instant application was lodged, about eighteen months later on 27/06/2024 until the date it was called on for hearing the respondents were inactive as follows: one, no appeal was filed despite the lapse of about 18 months of the filing of notice of appeal. That delay was about four hundred and eighty days far beyond sixty days as required under rule 90(1) of the Rules. Three, the respondents did not 5 serve the applicant with the respective memorandum and records of appeal and three, nothing showed that, the respondents wrote a letter to the Registrar requesting for copy of the proceedings and, if any, that they copied it to the applicant pursuant to rule 90(3) of the Rules. As such, due to such a state of affairs, we entertain no doubt that, the respondents have lost interest in pursuing the intended appeal. Therefore, the Court has no option but resort to the remedy provided for under rule 89(2) of the Rules which is to strike out the notice of appeal. See- Dr. Fortunatus Lwanyantika Masha v. Dr. William Shija and Another (Civil Appeal No. 43 of 1996) [1997] 15 (10 January 1997) and Mije Traders Limited v. Omary Ibrahim (Civil Application 536 of 2021) [2023] TZCA 177 (5 April 2023; TanzLII). From the observations above, we want to increasingly stress that, any infinitum abandoned notice of appeal poses three main threats which the Court should not condone: one, it constitutes breeding grounds for endless litigation. Two, it puts the Decree Holder on cross road such that he cannot anticipate what would happen in the Court this time tomorrow and three, chances of the Decree Holder to enjoy the decretal fruits become a nightmare. 6 All said, accordingly, we grant the application with costs. In the upshot, the notice of appeal lodged in the Court on 12th September, 2022 against Judgment in Land Appeal No. 28 of 2016 of the High Court of Tanzania at Dodoma is hereby struck out. Order accordingly. DATED at DODOMA this 25th day of March, 2025. W. B. KOROSSO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Ruling delivered this 26th day of March, 2025 in the presence of Mr. Cheapson Luponela Kidumage, learned counsel for the applicant and at the absence of the respondents, is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 7