songoye ole matata vs loondomon mallya 2023 tzca 114 15 march 2023

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LILA, J.A., MWANPAMBO. J.A. And FIKIRINI. J.A.^ t CIVIL APPLICATION N0.126/02 OF 2019 SONGOYO OLE MATATA ............................................... .............APPLICANT VERSUS LOONDOMON MALLYA........ ................................................ RESPONDENT (Application for striking out a notice of appeal in respect of the judgment and decree of the High Court of Tanzania, at Arusha) (Masengi, J.) Dated the 14th day of November, 2016 in Land Appeal No. 24 of 2016 RULING OF THE COURT 5* October,2022 & 15* March, 2023 LILA. J.A.: The applicant has, by a notice of motion, moved the Court to strike out the respondent's notice of appeal lodged on 17/11/2016 expressing an intention to appeal against the judgment and decree of the High Court (Massengi, J.) in Land Appeal No. 24 of 2016 delivered on 14/11/2016. The respondent lost in that appeal. The application is predicated under Rule 89(2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and Mr. Nelson Siokino Merinyo, learned advocate who represented the applicant i before us and before the High Court, swore an affidavit supporting the application. The substance of the application as would be discerned from the averments in the affidavit, written submission in support of the application and Mr. Merinyo's submission before us was that upon lodging the aforesaid notice of appeal, the respondent, alive of the requirements of leave to appeal to the Court before lodging an appeal, applied for it in Misc. Civii Application No. 121 of 2007 which he, however, withdrew after realizing that it was not in order. After that, Mr. Merinyo deposed that the respondent reposed without taking necessary actions or steps to further process and prosecute the appeal although he was given leave to re-file that application. It was his further assertion that until the present application was lodged, the respondent had not lodged a record of appeal or memorandum of appeal, which amounted to failure on his part to process the appeal. He, accordingly, beseeched the Court to strike out the notice of appeal earlier on lodged with the Court. The averments in the affidavit were not controverted by the respondent who did not lodge an affidavit in reply in terms of Rule 56(1) of the Rules. Mr. Stephano James, learned counsel who appeared for the respondent, readily conceded to that lapse on the part of the respondent. For this reason, the Court reminded the learned counsel the obtaining legal consequences of such failure that the respondent is precluded from challenging the facts as deposed by the applicant in the affidavit We had in mind our earlier decisions on the matter in particular the case of Fweda Mwanajoma and Another vs Republic, Criminal Appeal No. 174 of 2004 which was followed in the case of Irene Temu vs Ngasa M. Dindi and Two Others, Civil Application No. 278/17 of 2017 (both unreported). In that case, the Court underscored the position that where no affidavit in reply is filed to controvert the facts in the affidavit, save for legal matters, factual matters deposed in the affidavit are taken not to have been disputed. Taking cognizance of the above legal position, Mr. James urged the Court to be permitted to resist the application hinging his arguments on legal matters only which permission was granted. Addressing the Court and after conceding that the respondent was yet to seek and obtain leave to appeal which is a crucial step before lodging an appeal to the Court, Mr. James pointed out substantially one legal point which hinges on two related issues in his attempt to assail the application which he thought would move the Court to be inclined to dismiss the application. Mr. James contended that the application was prematurely filed for two reasons. First, that at the time the application was filed, the decree which was a subject of appeal was wanting of some material respects was yet to be rectified by the High Court. Secondly, he argued that, the respondent had already lodged an application for extension of time before the Court to apply for leave to appeal referred to as second bite after he had been refused extension of time by the High Court which application was still pending before the Court. However, he could not furnish the particulars of the application allegedly lodged in the main registry of the Court at Dar es Salaam. Just to remind Mr. James, we find ourselves compelled to state what now is the obvious. The Court's power to strike out notice of appeal for inaction is provided under Rule 89(2) of the Rules. That Rule provides as follows:- "Subject to the provisions of sub rule (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 essential step in the proceedings has not been taken or has not been taken within the prescribed time." The quoted provision is no doubt a rule against inaction by losing parties in the High Court. It compels them to ensure that they take steps that would advance the process of instituting and prosecuting their appeal after they had filed notices of appeal. It requires them to take steps that will ensure that appeals are instituted within the prescribed time by taking all the essential steps promptly. And to succeed in applications of this nature, the applicant is obligated to show that there was laxity or complete failure by the intended appellant to act in that manner. The phrase ''essential steps" has been a subject of the Court's interpretation and it is now settled that it means or entails steps which advances the lodgment and prosecution of the appeal (See Asmin Rashidi vs Boko Omari [1997] TLR 146), taking further action to keep live the pursuit of an intended appeal (See Martin Kumalija vs Iron and Steel Ltd, Civil Application No. 70/18 of 2018) and not to remain idle or inactive or do anything in furtherance of the intended appeal (see Rehema Msabaha vs Salehbhai Jafferjee Sheikh and Another, Civil Application No. 527/17 of 2019 (both unreported). There is no controversy that leave was a prerequisite requirement before the respondent could access the Court by way of an appeal. Section 5(l)(c) of the Appellate Jurisdiction Act and Rule 45(a)(b) of the Rules explicitly provide for that requirement. The respondent conceded too that no leave had not yet been sought and granted to them so that they could proceed to institute the appeal. The failure has been attributed to two reasons which they think would render the application prematurely lodged hence liable to be struck out. We have keenly considered the learned counsel's arguments and, without hesitation, we hold them baseless. To be sincere, there were no justifiable legal reasons advanced, let alone being convincing, explaining the efforts made or taken by the respondent to have the alleged rectification of the decree done by the High Court or the alleged pending application for extension of time (a second bite) registered. There was, even, no mention as to when the same was lodged 6 in the sub-registry. Was it for the Court to do a research and decide? We do not think. In the circumstances, how could the issue of premature filing of the application be determined or gauged? Such an allegation would only be valid had it been established that the present application was lodged after the application for a second bite was lodged. There is no such proof as we could not find an answer from the arguments advanced by Mr. James. In all, this depicts nothing but inaction by the respondent and the learned counsel. The Court can not engage itself in speculations, either. All said, it is our decided view that there is no valid legal issue advanced by the learned counsel to persuade the Court to hold that the present application was hastily lodged. Based on the uncontroverted facts deposed by Mr. Merinyo, we agree that no essential steps have been taken by the respondent to institute an appeal within time. As a by-the-way, we wish to reiterate our observation in MIC Tanzania Limited vs CXC Africa Limited, Civil Application No. 172/01 of 2019 (unreported) that intended appellants should always endeavor to ensure that they timely take necessary steps to process the intended appeals and thereafter timeously prosecute them so as not to turn the Court's Registry and sub­ registries into parking lanes. In fine, the application is hereby granted. The notice of appeal lodged by the respondent on 17/11/2016 in respect of the decree and judgment in Land Appeal No. 24 of 2016 of the High Court at Arusha is hereby struck out with costs. DATED at DAR ES SALAAM this 9th day of March, 2023. S. A. LILA JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL The ruling is delivered this 15th day of March, 2023 in the presence of Mr. Nelson S. Merinyo assisted by Mr. Leserean Merinyo, learned counsel for the applicant and Mr. Stephano James, learned counsel for the respondent is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 8