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IN THE COURT OF APPEAL OF TANZANIA . · AT DAR ES SALAAM CIVIL APPLlCATION NO. 53 OF 2004 • BETWEEN THE NATIONAL BANK OF COMMERCE ................ APPLICANT AND BARNABAS LEO KIDULILE ............................ RESPONDENT (Application to strike out Notice of Appeal from the Ruling of the High Court of Tanzania at Dar es Salaam) (Bubeshi, J.) dated the 11 th day of February, 2004 in Misc. Civil .Application No. 119 of 2000 RULING LUBUVA, J.A.: Before me is an application to strike out notice of appeal under the provisions of rule 82 of the Court Rules, 1979. It is supported by .an .affidavit sworn .by. Genevieve Kato, learned counsel for .the- applicant. From the affidavital deposition and other documents laid before the Court, the background giving rise to the application is gleaned as follows. In Kisutu Resident Magistrate's Court Employment Cause No. 135 of 1994, ruling was delivered on 11.2.2004 in favour of the applicant. The respondent was dissatisfied, and so, notice of appeal was lodged in the High Court on 2 24.2.2004, copy of which was duly served on M/s Kato, Kashonda and Mguto Advocates, counsel for the applicant. It is the applicant's claim that since the, notice of appeal was lodged, no steps have been taken in instituting the appeal. Consequently, this application has been_ filed seeking to have the notice of appeal struck out. In this application, Mrs. Kashonda, learned counsel represented the applicant. When the matter was ·called on for hearing the respondent though duly served on 26.1.2005, did not appear in court. Though the application was cause listed for hearing at 8.45 a.m., the matter was called out at about 9.30 a.m.. Still, the respondent was not present in court. Because the respondent had been served, Mrs. Kashonda, learned counsel for the applicant, moved the Court to invoke the provisions of rule 58 (2) of the Court Rules, 1.979, which provides - 58 (2) If the applicant appears and the respondent fails to a_ppear, the application shall proceed in the absence of the respondent, unless the Court sees fit to adjourn the hearing. Having regard to the fact that the respondent was duly served on 26.1.2005 through Law Times Network, Advocates, I did not see it 3 fit to adjourn the hearing of the application. Accordingly, the application was ordered to proceed to hearing in the absence of the respondent. On her part, Mrs. Kashonda, learned counsel for the applicant, made brief pertinent submissions. First, since the notice of appeal was lodged on 24.2.2004, the respondent has not taken any essential step for the institution of the appeal. For instance, no letter was- written to the Registrar, High Court, applying for a copy of the proceedings in the High Court in terms of rule 83 (1) of the Court Rules, 1979. On the other hand, even if it is accepted that the letter was written to the Registrar, High Court, still, this would not be of any avail to the respondent. The application would still be caught up under the provisions of sub-rule (2) of rule 83. The provisions of this sub-rule are to the effect that an appellant shall not be entitled to rely on the exception to sub-rule (1) of rule 83 unless the copy of the letter to the Registrar applying for a copy of the proceedings was sent to the respondent, the applicant in this matter. In this case, as the respondent wa·s served with the notice of address for service if the letter to the Registrar was written and its copy sent to the 4 applicant, it would have been received. Consequently as no letter was written to the Registrar applying _for a copy of th~ proceedings copied to the applicant the respond~nt, the appeal should have been instituted within sixty (60) days of 'the notice of appeal i.e. 24.2.2004. In the circumstances, at the latest, the appeal should have been instituted by 24.4.2004. To date, the appeal has not been instituted. The effect of default in instituting an appeal within the prescribed time is set out under rule 84 (a). This rule-provides th·at . in the event of default to institute an appeal within the prescribed time after lodging notice of appeal, the notice of appeal shall be deemed to have been withdrawn. In this case, the notice of appeal should be deemed to have been withdrawn, Mrs. Kashonda urged. It is now settled that where a person on whom a notice of appeal has been served, if some essential step in the -proceedings has not been taken in instituting the appeal within the prescribed time, an application- for striking out notice of appeal may be applied to the Court. This is spelled out under rule 82. The prescribed time in which to institute an appeal is provided under rule 83 (1). Under this rule an appeal shall be instituted within sixty days of the date 5 when the notice of appeal was lodged. However, the proviso to this sub-rule is pertinent. It reads: - save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired to appeal there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery of that copy to the appellant. (2) An appellant shall not be entitled to rely on the exception to sub-rule ( 1) unless his application for the copy was in writing and a copy of it was sent to the respondent. In this case, the issue is whether the respondent qualifies to benefit from the proviso to sub-rule (1) of rule 83. On this, I am settled in my mind that the respondent cannot resort to this proviso. The reason is not far to seek. First, there was no letter written to the Registrar, High Court, applying for a copy of the proceedings. Second, even if it is granted that there was such a letter written,