20130729 TZHC Iringa

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA (CORAM: RUTAKANGWA, J.A., LUANDA, J.A., And MJASIRI. l.A.) CIVIL APPLICATION NO. 1 OF 2011 YOKOBETI SIMON SANGA ............................................................ APPLICANT VERSUS YOHANA SANGA ....................................................................... RESPONDENT (Application for striking out Notice of appeal from the decision of the High Court of Tanzania at Iringa) (Uzia, J.) dated the 30th day of September, 2010 in Matrimonial Cause No. 24 of 2001 RULING OF THE COURT 29th & 31 st July, 2013 MJASIRI, J.A.: By a Notice of Motion brought under Rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Court Rules) the applicant Yokobeti Simon Sanga is moving the Court for an order that the notice of appeal filed by the respondent Yohana Sanga on 12.10.2010, be struck out with costs on the ground that the respondent has failed to institute the intended appeal within the prescribed time. 1 At the hearing of the application the applicant was advocated for by Mr. Onesmo Francis, learned advocate holding brief for Mr. Victor Mkumbe learned advocate, while the respondent was to have the services of Mr. E. Mbogoro, learned advocate. Mr. Mbogoro was absent in Court though he was duly served. The Court therefore, proceeded with the application in terms of Rule 63 (2) of the Court Rules. Mr. Mbogoro did not also file an affidavit in reply nor written submissions. Briefly the background to this case is as follows. The respondent, who was the respondent in the High Court, was the losing side. Dissatisfied with the decision of the High Court, he sought to appeal to this Court and duly lodged a Notice of Appeal in tim~. He also wrote in time to the Registrar of the High Court to be supplied with a copy of the proceedings. The letter to the Registrar was not served to the applicant. By 11th January 2011 when this application was lodged in this Court no memorandum of appeal and no record of appeal had been filed. In his written submissions Mr. Mkumbe stated that the respondent had failed to take some essential steps in the prosecution of his intended appeal and that the notice of appeal should be struck out. 2 7 Rule 89 (2) of the Court Rules authorises a person on whom a notice of appeal has been served to apply to the Court, as the applicant has done, to have the notice of appeal struck out, in this case for failure to take some essential steps in filing the record of appeal. In Atlantic Electric LTD v Morogoro Region Cooperative Union (1993) TLR 12, the court struck out a notice of appeal because the respondent had failed to take some essential step. The law is crystal clear. Rule 90 (2) of the Court Rules provides that whoever intends to appeal to the Court must institute the appeal within sixty days from the date when the notice of appeal was lodged except as provided for under the proviso in Rule 90 (1). See also Tanzania Rent - A- Car Ltd New Africa Hotel 1993 (LTD), Civil Application No. 38 of 2005 and Blueline Enterprises Ltd v East African Development Bank, Civil Application No. 103 of 2003 CAT (unreported). As rightly pointed out in Mr. Mkumbe's written submissions the respondent cannot benefit from the exception to sub-rule ( 1) of Rule 90 because the respondent's letter to the Registrar requesting for copies of proceedings was not served to the applicant. 3 ' The respondent's failure to file an affidavit in reply and written submissions despite being served can be concluded that he does not dispute the contents thereof. We are of the considered view that the applicant should be given the opportunity to enjoy the fruits of her decree, if the respondent does not intend to prosecute the appeal. In view of what has been stated herein above the notice of appeal is accordingly struck out with costs. DATED at IRINGA this 29 th day of July, 2013 E. M. K. RUTAKANGWA JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL opy of / I I 4