CIVIL APPLICATION NO 307 OF 01 OF 2023 SALUM JUMA HAJI V NATIONAL INSURANCE CORPORATION OF TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANDAMBO. 3.A.. MWAMPASHI. 3.A. And FELESHI, 3,A.) CIVIL APPLICATION NO. 307/01 OF 2023 SALUM JUMA HAJI....................... ................................................... APPLICANT VERSUS NATIONAL INSURANCE CORPORATION OF TANZANIA LIMITED ........... ............................................... ..RESPONDENT (Application for an order to strike out notice of the appeal originating from the decision of High Court of Tanzania at Dar es Salaam) (De Mello, 3.^ dated 20th day of February, 2020 in Civil Appeal No. 202 of 2018 RULING OF THE COURT 25th & 27th February 2025 MWANDAMBO, J.A.: The respondent, National Insurance Corporation of Tanzania Limited lost twice to the applicant Salum Juma Haji before the trial Resident Magistrate's Court of Dar es Salaam at Kisutu and the High Court at Dar es Salaam on appeal. The High Court dismissed its appeal on 20 February 2020. Aggrieved, on 3 March 2020, it lodged a notice of appeal i against that decision. Before lodging the notice of appeal, on 24 February 2020, it applied to the Registrar, High court for certified copies of proceedings, judgment and decree for appeal purposes to this Court and served a coy thereof on the applicant on 30 April 2020. In terms of rule 90 (5) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the Registrar was enjoined to supply such documents within 90 days. In case of failure by the Registrar to avail such copies within the prescribed period, the respondent was bound to remind him within 14 days of the expiry of 90 days. It is common cause that, neither did the Registrar furnish the respondent with the requested copies nor did the respondent remind him within the prescribed time or at all. That prompted the applicant acting through Mrs. Joyce Sojo, learned advocate of Legal Assistance to Victims Accidents, to move the Court under rule 89 (2) of the Rules for an order striking out the notice of appeal allegedly for failure to take essential steps in instituting her appeal. The applicant did so by way of notice of motion to which he annexed an affidavit deposed to by his advocate. The application was resisted through an affidavit in reply taken out by Paul Geoffrey Shaidi, Director of Legal Services details of which are irrelevant as it shall become apparent shortly. At the hearing of the application Mrs. Sojo who teamed up with Ms. Anna Amon, learned advocate. Mrs. Sojo addressed us orally in support of the application on the ground set out in the founding affidavit in addition to the written submissions lodged earlier on urging us to find it meritorious and grant it as prayed. Ms. Neema Mwaipyana and Mr. Christopher Bulendu, both learned Senior State Attorneys, appeared for the respondent armed with ammunition to resist the application. It was Ms. Mwaipyana who addressed us first before enlisting assistance from her colleague in response to a specific question from the Court. By that question, the Court wanted to satisfy itself whether, apart from the ground set out in the notice of motion, the respondent had complied with rule 90 (3) of the Rules. That rule enjoins the intended appellant to serve the respondent with a copy of the letter sent to the Registrar requesting certified copies of requisite documents for appeal purposes within 30 days from the date of the decision sought to be appealed against. It is common ground that 3 a copy of the said letter was served on the respondent on 30 April 2020. However, the learned Senior State Attorneys prevaricated a lot at different times in response to the question posed by the Court. In the aftermath, Mr. Bulendu summoned courage by throwing in the towel. He conceded that, since the respondent had delayed to serve the copy of the said letter contrary to the dictates of rule 90 (3) of the Rules, it cannot benefit from the exemption from time limitation for institution of the intended appeal under rule 90 (1) of the Rules. That rule prescribes 60 days for the institution of an appeal reckoned from the date of lodging a notice of appeal. It is remarkable that, the Registrar has power to exclude the period requisite for the preparation of copies of the documents necessary for the intended appeal. But that power is exercisable subject to the intended appellant having made a written request for the supply of such documents within 30 days from the date of the impugned decision and a copy thereof sent to the respondent within the same period. It is not in dispute anymore that, although the respondent made a written request to the Registrar on 24th February 2020 well within 30 days of the impugned decision it was not until 30 April 2020 when a copy of that letter was served on the applicant's advocate. That was way beyond the period prescribed by rule 90 (3) of the Rules. Indeed, it was after 60 days prescribed for the institution of the intended appeal. Differently put, the letter annexed to the affidavit marked NIC-3 was rendered worthless and incapable of benefitting the respondent of the intended exclusion of the period necessary for the preparation and supply of the requested copies of documents for appeal purposes. Mr. Bulendu conceded as such that the letter could not save any useful purpose and thus, even if we were to find the application untenable on the ground set out in the notice of motion and the Registrar avails the necessary documents, that will be of no use since the time for instituting the intended appeal expired long ago. From our simple arithmetic calculation, 60 days prescribed under rule 90 (1) of the Rules expired well before the respondent served the copy of her letter to the Registrar on the applicant's advocates. Consequently, although the applicant predicated his application upon rule 90 (5) of the Rules on the belief, albeit mistaken, that the respondent had complied with Rule 90 (3) of the Rules, the application must in any event succeed by reason of the respondent's failure to take essential steps in the intended appeal as conceded by Mr. Bulendu. 5 In the event, we grant the application albeit on a ground other than the sole ground set out in the notice of motion with the net effect that, the respondent's notice of appeal lodged on 13 March 2020, is hereby struck out. The applicant shall have his costs. Order accordingly. DATED at DAR ES SALAAM this 27th of February, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2025 in the presence of Ms. Anna Amon, learned counsel for the Applicant and Mr. Pantaleo Urassa, learned State Attorney for the Respondent is hereby certified as a true copy of the original. E. < SENIOR DEPUTY REGISTRAR COURT OF APPEAL