Tanzania Postal Bank vs Muywanga General Enterprises Civil Application No

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SA L A A M CIVIL APPLICATION NO. 154 OF 2005 TA N Z A N I A POSTAL B A N K .................................................................... APPL ICA NT VERSUS M U Y W A N G A G E N E R A L EN TE R P R IS E S ......................................RE S P O N D E N T (Application to strike out notice of a p p e a l from the Ruling and Order of the High Court of Tanzania, C o m m e r c ia l Division, at Dar es Sa la a m ) (Dr. Bwana,J.) Dated the 27th day of May, 2005 In C o m m e rc ia l Case NO. 8 of 2003 fLLLL I NjG 19 September, & 5th October, 2006 MSOFFE, J. A . : This is an application to strike out “a notice of a p p e a l" lodged by the resp ondent on 1/6/2005 against the ruling of the High Court (Com m ercial Division) dated 27/5/2005. The application is supported by an affidavit de p one d by Mr. Walter Buxton Chipeta in which it is averred that the resp ondent has not taken essential steps to institute the intended appeal. The application is m ade under Rule 82 of the Court Rules, 1979. Mr. Baravuga, learned advocate, a ppeared for the applicant. The respondent was served by publication in both Nipashe and Daily News new sp a pers but did not a p pear. On 19/9/2006 when the application was called on for hearing I directed the application to proceed under Rule 58(2) in the ab sence of the respondent. The crucial point here is w hether or not there is a valid notice of appeal capable of being struck out. In the affidavit in support of the application it is evident und er paragraph 3.0 thereof that the “notice of a p p e a l" referred to is ap parently a letter dated 1/6/2005 written by Mr. M gare, a learned advocate who was at the time representing the applicant, in which he was requesting for docum ents from the Registrar of the High Court (Com m ercial Division) for appeal purposes. In the letter Mr. M gare stated, inter- alio, as follows:- “By this letter the Decree holder is hereby notified that the Judgm ent debtor is intending to appeal to the Court of Appeal of Ta n za n ia ”. The question is w h e the r the letter w as a true notice of appeal under the Rules. With respect, it w as not. Rule 76 sets out the general requirem ents of a notice of appeal. Under sub ­ rule (1) thereof an intended appellant must lodge a written notice in duplicate with the Registrar of the High Court. And under sub- rule (6) notice must be substantially in the form D in the First Sched ule to the Rules, and must be signed by or on behalf of the appellant. Surely, the letter is not in the format stipulated under form D. In other words, the letter is not the sort of notice envisaged by the Rules. In the event, it will follow that there is no true notice of appeal annexed to the application w hich is ca p a b le of being € struck out. In the absence of such notice the application has no leg to stand on. The application is a cco rd in g ly struck out with no order as to costs. For the avoidance of doubt, if there is a true notice of appeal lying som ew here the applicant is still free to f'ie a fresh application to strike it out. Dated at Dar es Salaam this 2 71h day of Se p te m b e r J.H. M SSO FE JUSTICE OF APPEAL 4 I certify that this is a true copy of the original. Y IK A REGISTRAR no o