veneranda baraza vs ngorongoro conservation area authority 2023 tzca 17803 8 november 2023

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUGASHA, J.A.. KITUSI, J.A. And FIKIRINI, J.A.^ CIVIL APPLICATION NO. 378/02 OF 2023 VENERANDA BARAZA............................................................................. APPLICANT VERSUS NGORONGORO CONSERVATION AREA AUTHORITY....................... RESPONDENT (Application to Strike out a Notice of Appeal lodged in the Court of Appeal of Tanzania, from the Judgment in Labour Revision, at Arusha) (Hon. Robert, J.) dated the 11th day of May, 2022 in Labour Revision No. 72 of 2020 RULING OF THE COURT 6th & 8th November, 2023. FIKIRINI, J.A.: Disgruntled with the decision in Labour Revision No. 72 of 2020 delivered on 11th May, 2022, the respondent, Ngorongoro Conservation Area lodged a notice of appeal on 31st May, 2022 and served the applicant, Veneranda Baraza on 7th June, 2022 through her advocate Mr. Asubuhi John Yoyo. After waiting for almost a year, on 14th April, 2023 by way of notice of motion pursuant to rules 48 (1) and 89 (2) of the Court of Appeal Rules, 2009 (the Rules), the applicant preferred this application. Mr. Yoyo i swore an affidavit in support of the application and filed written submission in terms of rule 106 (1) of the Rules plus list of authorities, which he prayed to adopt as part of his oral arguments. In his affidavit, the learned counsel implored the Court to strike out the notice of appeal lodged on 31st May, 2022 since no essential steps have been taken including the applicant not being served with neither a record of appeal nor any other document, to justify the existence of the said notice of appeal. Without any action taken by the respondent the applicant is left in abeyance as she cannot enforce the arbitral award in her favour. On the date fixed for hearing of the application, Mr. Yoyo entered appearance whereas none entered appearance on behalf of the respondent, despite service being duly effected on 16th October, 2023 on the Solicitor General's office as per the stamp of receipt on the notice of hearing. Content that the respondent was duly served, Mr. Yoyo moved the Court praying for the hearing to continue as scheduled under rule 63 (2) of the Rules in the absence of the respondent. The prayer which was granted by the Court and it ordered the hearing to proceed under rule 63 (2) of the Rules. In his brief submission, Mr. Yoyo invited us to strike out the notice of appeal lodged since 31st May, 2022, from which no essential steps had been taken up to this day when the hearing of the present application was taking place. It is indeed correct that, since the lodgment of the notice of appeal on 31st May, 2022, the respondent has not taken any essential steps or filed an affidavit in reply to explain what was hindering her from lodging of the intended appeal and effect service upon the applicant. In the two cases cited in the applicant's written submissions that of The Registered Trustees of Chama cha Mapinduzi v. Christina Ngilisho, Civil Application No. 153/05 of 2017 and Erick Raymond Rowberg & 2 Others v, Elisa Marcos & Another, Civil Application No. 571/02 of 2017 (both unreported), the Court in both instances granted the application and struck out the notices of appeal lodged for failure to take essential steps. 3 We, agree with the applicant that the respondent has undeniably failed to take the essential steps required under the law to institute the intended appeal. We, thus grant the application and proceed to strike out the notice of appeal lodged on 31st May, 2022 in terms of Rule 89 (2) of the RulGS, With no order as to costs, this being a labour matter. DATED at ARUSHA this 7th day of November, 2023. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL This Ruling delivered this 8th day of November, 2023 in the presence of Mr. Dereck Andrew, learned counsel for the Applicant and Ms. Zamaradi Johannes, learned State Attorney for the Respondent, is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL