siri nassir hussein siri vs rashid musa mchomba 2017 tzca 308 7 august 2017

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: JUMA, Aa. CJ. MBAROUK, J.A., MWANGESI. J.A.) CIVIL APPLICATION NO. 24 OF 2016. SIRI NASSIR HUSSEIN SIRI............................................................... APPLICANT VERSUS RASHID MUSA MCHOMBA (Acting as~1 Administrator of the Estate of Musa L .......................................RESPONDENT Mchomba Massawe) (Application to strike out Notice of Appeal against the decision of the High Court of Tanzania at Arusha District Registry) (Sambo, J.) dated the 18th day of May, 2010 in Civil Appeal No. 15 of 2009 RULING OF THE COURT 01st & 7th August, 2017 MWANGESI. J.A.: The applicant herein was adjudged by the High Court of Tanzania at Arusha sub- registry (Sambo, J.) in Civil Appeal No. 15 of 2009, to be the legal owner of landed property on Plot No. 29 Block 1 Area "F" located within Arusha Municipality in a decision that was handed down on the 18th May 2010. The respondent felt aggrieved and as a result, did lodge a notice of appeal to challenge the decision on the 21st day of May 2010. In the application at hand, the applicant is moving the Court to strike out the notice of appeal that was lodged by the respondent on the reason that, ever since he lodged his notice of appeal the respondent has failed to take essential steps to prosecute his appeal. The application has been preferred under the provisions of Rule 89 (2) of the Court of Appeal Rules, 2009 (the Rules), and has been supported by an affidavit that was affirmed by the applicant. During the hearing of the application on the 01st day of August 2017, learned counsel Mr. Ezra Joshua Mwaluko, did enter appearance for the applicant whereas, the respondent had the services of learned counsel Mr. Innocent Mwanga. On taking the floor to expound the application, learned counsel Mr. Mwaluko did in the first instance, inquire from the Court records, if there was compliance by the applicant with the stipulation under Rule 32 (1) of the Court Rules by lodging with the Registrar, a notice of change of advocates. This was attributed by the fact that, on his part, he had not yet been served with a copy of notice to that effect. In response to the inquiry by his learned friend, learned counsel Mr. Mwanga on behalf of the respondent did inform the Court that, he was instructed by the respondent to represent him in this matter just yesterday. That being the case, he was not yet been in a position to comply with the requirement under Rule 32 (1) of the Court Rules. He did therefore ask for extension of time within which to comply with the requirement of law. When the learned counsel for the respondent was further prompted by the Court as to when his client was served with the notice regarding the hearing of the application today, he told the Court that, the counsel who had been representing the respondent before, informed him that, he was served with the notice since the 30th June 2017. He was however not in a position to tell the Court as to why, for the whole of that period, the previous counsel did fail to do any needful in so far as this application was concerned. On our part, on putting into consideration the period that has elapsed from when the previous advocate of the respondent was served with the notice of hearing this matter that is, more than a month ago and further that, the respondent himself was nowhere to be seen in Court so that he could be asked some questions regarding the fate of his application, it became evident to us that, the excuse being raised on his behalf by his recently engaged counsel was nothing other than mere delaying tactics of which, the Court was not prepared to accommodate. As a result, we did out rightly reject the prayer presented by the learned counsel for the respondent and ordered the hearing of the application to proceed as scheduled. If anything, the learned counsel for the respondent would be permitted to respond to the submission made by his learned friend wherever he could consider befitting so to do. In amplification of the application before us, learned counsel Mr. Mwaluko did adopt the contents of the affidavit that was affirmed by the applicant in support of the application, to form part of his submission. He did submit further to the effect that, the application has been made under the provisions of Rule 89 (1) of the Court Rules whereby, the Court is being asked to strike out the notice of appeal that was lodged by the respondent on the 21st May 2010 on the reason that, thenceforth, he has failed to take the essential steps to lodge his appeal to challenge the decision that was handed down by the High Court on the 18th May 2010 and thereby, letting the notice of appeal to remain in Court unattended for about seven (7) clear years or so. In the view of the learned counsel for the applicant, that was clear sign of lack of seriousness on the part of the respondent to pursue the intended the appeal. Relying on different previous decisions of this Court, that included Tanzania Harbours Authority Vs Gerald Parrick and Another Civil Application No. 05 of 2002, Dimon Tanzania Limited Vs Harry Henry Mboma and Two Others on Behalf of 445 Others, Civil Application No. 43 of 2002 and Ramadhani Maabadi and Another Vs Maka Serafini, Civil Application No. 12 of 2015 (all unreported), the learned counsel for the applicant has humbly implored us to issue an order for striking out of the notice of appeal with costs to the applicant. On his part, Mr. Mwanga learned counsel for the respondent, had nothing substantial in rebuttal to what was submitted by his learned friend basically on the obvious reason that, there was no any sworn/affirmed affidavit from the side of his client to establish otherwise. In the light of the foregoing, the issue which stands for deliberation and determination by the Court is whether the respondent has indeed failed to take essential steps to institute an appeal to challenge the decision of the High Court that was delivered on the 18th May 2010. In 5 terms of Rule 90 (1) of the Court Rules, the appeal in the instant matter ought to have been lodged within sixty days from the 21st May 2010 when the notice of appeal was lodged that is, latest, it ought to have been filed by the 17th July 2010. Nonetheless, to date that is, the 01st day of August 2017, there is no appeal which has been lodged. According to paragraph 4 of the affidavit that was affirmed by the applicant in support of the application, it has been deponed that, there was an application that was belatedly lodged by the respondent seeking for leave to lodge an appeal. Upon the same lingering in court for some time, it was ultimately dismissed on the 15th April 2013 after the Court did sustain the preliminary objection that was raised to the application, as per the deposition of the applicant in paragraph 8 of his affirmed affidavit. Such situation is what has moved the applicant to prefer the current application. Mr. Mwanga, learned counsel for the respondent, did confirm before us that, the erstwhile advocate of the respondent that is Mr. F. S. Kinabo learned counsel, did inform him that, he was served with the application at hand on the 30th June 2017. From then, there was no any effort that was made to counter the contention contained in the affidavit that was affirmed by the applicant. Such an act by the respondent has left the contents of the affidavit affirmed by the applicant to remain uncontroverted to the fact that, indeed the respondent has failed to take essential steps to lodge an appeal to challenge the decision of the High Court. With the foregoing position, it paves way for the invocation of the provision of Rule 91 (1) of the Court Rules which reads: "91. I f a party who has lodged a notice o f appeal fails to institute an appeal within the appointed time- (a) He shall be deemed to have withdrawn his notice o f appeal and shall, unless the Court orders otherwise, be liable to pay the costs o f any persons on whom the notice o f appeal was served arising from that failure to institute the appeal. " In the case of Mrs. Kamiz Abdulla M. D. Kermal Vs the Registrar of Buildings and Miss Hawa Bayona [1988] TLR 199, where the Court was faced with a similar situation as the one under discussion, it did hold that: 7 "An appeal to the Court o f Appeal m ust be instituted within 60 days o f the date when the notice o f appeal was lodged. The time required for the preparation and delivery o f copy o f proceedings in the High Court shall be excluded in computing the time within which an appeal to the Court o f Appeal is to be instituted if an application for that copy has been made within 30 days o f the decision to appeal; such time has been certified by the registrar o f the High Court as having been required for the preparation and delivery o f the copy o f proceedings and the application for that copy was in writing and a copy thereof was sent to the other party." Similar position to the above was taken in the cases of Tanzania Harbours Authority Vs Gerald Patrick and Another (supra) and Atlantic Electric Limited Vs Morogoro Region Co-operative Union [1993] TLR 12, just to mention but a few. In the same vein, since in the instant matter there has been inordinate delay in lodging the appeal with no explanation, the only probable implication is that, there is no interest on the part of the respondent to institute the appeal of which the only available course to be taken is the one asked for by the applicant of 8 striking out the appeal, which we hereby grant. The notice of appeal is therefore struck out with cost to the applicant. Order accordingly. DATED at ARUSHA this 4th day of August, 2017 I.H. JUMA Ad. CHIEF JUSTICE M.S. MBAROUK JUSTICE OF APPEAL S.S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 9