CIVIL APPLICATION NO 776 01 OF 2022 SEBASTIAN RAPHAEL VS AIRTEL TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL, J.A., KIHWELO, J.A. And MDEMU. J.A.^t CIVIL APPLICATION NO. 776/01 OF 2022 SEBASTIAN RAPHAEL............................................................................ APPLICANT VERSUS AIRTEL TANZANIA LIMITED...................... .......................................RESPONDENT (Application to strike out notice of appeal filed against the decision of the High Court of Tanzania at Dar es Salaam) (Mlvambina, J.) dated 2nd day of July, 2021 in Civil Appeal No. 251 of 2019 RULING OF THE COURT 11th & 28th June, 2024 SEHEL. J.A.: The applicant through the legal services of B & E Ako Law Firm is seeking an order that the notice of appeal filed by the respondent on 23rd July, 2021 be struck out on ground that the respondent failed to take essential steps in lodging its intended appeal to the Court. The notice of motion is predicated on rule 89 (2) and 48 (1) of the Tanzania Court of Appeal Rules (henceforth "the Rules") and it is supported by an affidavit of the applicant himself. The respondent, on the other hand, resisted the application by filing an affidavit in reply. A brief background leading to this application as could be gathered from the record is that; the respondent sued the applicant before the District Court of Kinondoni at Kinondoni (the trial court) claiming, among other things, for payment of TZS. 51,000,000.00 as costs incurred for creating a jingle for a contest advertised by the respondent. Having heard both parties, the trial court was convinced with the applicant's claim that the respondent invited contestants to submit proposal on marketing strategy styled as "Hakatw i MW Remix" and promised the winner to be advertised as a star and later be given an opportunity to record. However, the applicant who won the contest was neither given an opportunity to record nor was he advertised as a star. It accordingly awarded him the entire claimed amount, that is, TZS. 51,000,000.00 being costs incurred for creating the jingle and condemned the respondent to pay costs of the suit. The respondent was aggrieved with the said decision. It lodged its appeal to the High Court of Tanzania Dar es Salaam (the High Court) which was later on dismissed with costs on 2nd July, 2021 on account that it was lodged out of time. Feeling aggrieved with the dismissal of its appeal, on 13th July, 2021, the respondent wrote a fetter requesting to be supplied with the copies of proceedings, judgment and decree for appeal purposes and on 23rd July, 2021, it lodged a notice of appeal. Almost a year later, the respondent wrote a reminder letter to the High Court following up on its request to be supplied with the necessary documents for lodging the appeal. Five months later, that is, on 28th December, the applicant lodged the present application. On 11th June, 2024, when the application was called on for hearing, Mr. Phillip Lincoln Irungu, learned advocate, appeared for the applicant, whereas, Mr. Gaspar Nyika, learned advocate appeared to represent the respondent. Having taken the floor and adopted the notice of motion, affidavit in support of the application and the list of authorities, Mr. Irungu argued that after the respondent had lodged its notice of appeal and made an application to be supplied with certified copies of ruling, drawn order and proceedings, it took five months to make a follow up. He elaborated that rule 90 (5) of the Rules imposes a duty not only to the Deputy Registrar of the High Court (the Deputy Registrar) but also to the intended appellant. That, while the Deputy Registrar is required to supply the requested documents to the intended appellant within ninety days from the date of the request, the intended appellant is required to take steps to collect the same upon being informed or within fourteen days after the expiry of ninety days. It was his submission that ninety days lapsed on 12th October, 2021 but the respondent did not take any steps within the prescribed period of fourteen days. He argued that, with the introduction of sub-rule 5 to rule 90 of the Rules through the Tanzania Court of Appeal (Amendment) Rules 2019, Government Notice Number 344 of 2019 (G.N. No. 344 of 2019) , 'the home and dry raid is no longer applicable, as such, he argued, the inaction of the respondent is a proof that it is no longer interested in its appeal. Mr. Irungu went on to assail the respondent's reminder letter dated 25th July, 2022 that it is worthless as it was written after the lapse of fourteen days prescribed under rule 90 (5) of the Rules. He added that since the respondent did not write a reminder letter within fourteen days, the Court should find that the respondent failed to take essential steps in prosecuting its appeal. To bolster his point, he cited the Courts decisions in Monica Makungu v. Director of Education Department, Archdiocese of Mwanza (Civil Application No. 31 of 2021) [2022] TZCA 49 (21 February, 2022; TANZUI); Beatrice Mbilinyi v. Ahmed Mabkhut Shabiby (Civil Application No. 475 of 2020) [2021] TZCA 79 (12 March 2021; TANZLII) and Tanga City Council & 4 Others v. Tanga General Industries Limited (Civil Application No. 162/12 of 2023) [2024] TZCA 346 (9 May 2024; TANZLII). He therefore prayed that the notice of appeal be struck out with costs. In reply, Mr. Nyika adopted the affidavit in reply and strongly opposed to the application. He submitted that the respondent had complied with the legal requirement provided under Rule 90 (1) of the Rules as it lodged notice of appeal and wrote letters as evidenced by SB3 and SB4 attached to the affidavit in support of the application. He argued further that the respondent also took steps by writing a reminder letter dated 25th July, 2022 and made physical follow ups of the requested documents which are yet to be supplied. It was his submission that the law imposes a duty on part of the Deputy Registrar to supply and notify the intended appellant that documents are ready for collection, and that, the intended appellant is required to go and collect them within fourteen days. He further argued that the law does not impose any obligation to the intended appellant, that is, it does not require it to write a reminder letter within fourteen days after the expiration of ninety days within which the Deputy Registrar was obligated to supply the requested documents. It was the submission of Mr. Nyika that since the respondent complied with the law and it had not been notified that the requested documents are ready for collection, the Court should find that the respondent had taken all essential steps required by the law. He fortified his submission by referring the Court to its earlier decision in the cases of Kaemba Katundu v. Shule ya Sekondari Mwilamvya, (Civil Application No. 523 of 2020) [2021] TZCA 312 (16 July 2021; TANZLII) and Tanga City Council & 4 Others v. Tanga General Industries Limited (supra). At the end, Mr. Nyika urged the Court to dismiss the application with costs. In rejoinder, Mr. Irungu reiterated his earlier submission that since the reminder letter was written five months after the expiration of ninety days, the letter dated 25th July, 2022 is insignificant to the respondent. Having heard the submissions from the counsel for the parties, the issue for our determination is whether the applicant has made out his case that the respondent failed to take essential steps in terms of rule 89 (2) of the Rules. The rule provides: "Subject to the provisions o f subrule (1), any other person on whom a notice o f appeal was served or ought to have been served may a t any time, either before or after the institution o f the appeal, apply 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 lie s or that some essential step in the proceedings has not been taken or has not been taken within the prescribed tim e." The import of the above Rule, is that any person on whom a notice of appeal has been served, may apply to the Court to have such notice struck out on any of the three grounds, that, one, no appeal lies, two, some essential steps had not been taken and three, some essential steps had not been taken within the prescribed time. We have stated earlier that, after the ruling of the High Court which was delivered on 2nd July, 2021, the respondent wrote a letter requesting to be supplied with the copies of ruling, drawn order and proceedings on 13th July, 2021 which was also served on the applicant through his counsel. This fact is further depicted in paragraph 6 of the supporting affidavit. Later on, before the expiry of thirty days prescribed under rule 83 (2) of the Rules, that is, on 23rd July, 2021, the respondent lodged a notice of appeal. According to paragraph 12 of the supporting affidavit, the applicant listed the essential steps which need to be taken by the respondent towards lodging its intended appeal after filing the notice of appeal. These are: 1) That, within thirty days o f the date o f decision in respect o f C ivii Appeai No. 251 o f 2019\ the respondent was to write to the Registrar o f High Court to be supplied with certified copies o f ruling, drawn order and proceedings for purpose o f preparing the record o f appeai. ii) That, after the lapse o f ninety days w ithout being supplied with the requested documents, the respondent was to write a rem inder letter to the Registrar o f High Court within fourteen days thereafter to be supplied with the requested documents. Hi) That, the respondent did not write a rem inder letter within the prescribed tim e to be supplied with the certified copies o f ruling, drawn order and proceedings fo r purpose o f preparing the record o f appeal. 8 iv) That, from the said 2$h July, 2022, when the respondent file d the purported rem inder letter to the Registrar, it is now five months which have lapsed, and I have not been served with any other letter or memorandum o f appeal." Mr. Irungu forcefully argued that, pursuant to rule 90 (5) of the Rules, the respondent ought to have written a reminder letter after expiry of the ninety days. He pointed out that, the ninety days expired on 12th October, 2021, and the respondent had up to 26th October, 2021 to write the said reminder letter but it wrote five months after. Rule 90 (5) of the Rules which has been heavily relied upon by Mr. Irungu reads: 11Subject to the provisions o f subrule (1), the Registrar sh all ensure a copy o f the proceedings is ready fo r delivery within ninety (90) days from the date the appellant requested for such copy and the appellant sh all take steps to collect copy upon being inform ed by the Registrar to do so, o r w ith in fo u rte e n (1 4 ) d ays a fte r th e e x p iry o f th e n in e ty (9 0 ) days . " [Emphasis added] Although we entirely agree with Mr. Irungu that home and dry rule is no longer at the luxury of the intended appellant, with respect, we do not subscribe to his argument that the respondent ought to have written a reminder letter. Our reading of the above provision of the law, imposes an obligation on the part of the Deputy Registrar to ensure that the requested documents are ready for collection within ninety days from when the application for the same was made, and for the intended appellant to go and collect the same after being notified by the Deputy Registrar that they are ready for collection. The bolded part, though it is not specifically stated what needs to be done within fourteen days after expiry of ninety days due to the disjunctive "com m d' and the use of the word " o f, reading wholistically the entire provision of the law, we have repeatedly interpreted it to mean that the intended appellant has a duty to make follow up within fourteen days after the expiry of ninety days. For instance, in the case of Edmund Msangi v. The Guardian Limited (Civil Application 337 of 2021) [2022] TZCA 743 (24 November 2022; TANZLII), we stated: "... we gather that one, the provision is subjected to sub-rule (1). It is not a stand-alone provision. Two, the Registrar is required to ensure that the copy o f proceedings is ready for delivery within ninety days from when the application for the same was made and that the appellant is to collect the said copy after being inform ed by the Registrar to do so. Three, in case th e a p p e lla n t h a s n o t re ce iv e d a n y n o tific a tio n from th e R e g is tra r to c o lle c t th e s a id docum ents, th en he is re q u ire d to fo llo w up w ith in fo u rte e n d ays a fte r th e n in e ty d ays from h is a p p lic a tio n h a s exp ired . "[Emphasis added] See also: Arthur Kirimi Rimberia & Another v. Kagera Tea Company Ltd. & 3 Others, Civil Application No. 364/01 of 2018 (unreported) and Monica Makungu v. Director of Education Department, Archdiocese of Mwanza (supra). According to SB-4 which is attached to the affidavit in support of the application, the respondent had been making a physical follow up of the requested documents to the court through IMMA's desk officer, one, Ms. Frida Mtunzi. Given that the letter was attached by the applicant himself, we take that he acknowledges the respondent's action of making physical follow ups. Besides, the reminder letter was written prior to the filing of the present application which suggests that the respondent did not sit back, as argued by Mr. Irungu. It took actions by first making physical follows up, on several occasions, on its request to the office of the Deputy Registrar, and later on, in writing through a letter dated 25th July, 2022. Nonetheless, all its efforts were turned out to be in vain. In the case of Tanzania Bureau of Standards & Another v. Charles Nyato (Civil Application 315 of 2021) [2022] TZCA 601 (29 September 2022; TANZLII), we were perturbed by the behaviour of the Deputy Registrar despite several follows up made by the respondent. Here, we wish to echo the same regarding the inaction of the Deputy Registrar High Court, Dar es Salaam District Registry, that: "It is very unfortunate that a ii that tim e o f the respondent's foiiow upsf as it stands on record, not oniy the Registrar did not notify him to coiiect the requested documents, but aiso, he did not even in w riting ask the respondent to continue waiting. This was unusuai. In the absence o f it a ii therefore, we give the respondent the benefit o f doubt and do not expect this kind o f casuai running o f the courts' registries to happen again." Given the circumstances of the present application where the respondent had applied in writing, that is, had written a letter to the High 12 Court requesting to be supplied with the copies of ruling, drawn order and proceedings and made several follows up, physically and in writing, we find that the respondent has taken all steps which are essential in filing its appeal as required by the law. Consequently, we find that the applicant's application is devoid of merit. We therefore dismiss it with costs. DATED at DAR ES SALAAM this 24th day of June, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 28th day of June, 2024 in the presence of Mr. Phillip Lincoln Irungu, learned counsel for the applicant and Mr. Gaspar Nyika, learned counsel for the respondent, is hereby certified as a true copy of the original.