Jaluma General Supplies Limited & Others vs International Commercial Bank Tanzania Limited (Civil Application No. 771/01 of 2024) [2026] TZCA 393 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM fCORAM: LILA, J.A.. KENTE. 3.A. And MLACHA J.A.) CIVIL APPLICATION NO. 771/01 OF 2024 JALUMA GENERAL SUPPLIES LIMITED FEREJI SAID FEREJI........................... LUCAS PIUS MALLYA.......................... I^ t APPLICANT 2 nd APPLICANT 3 rd APPLICANT VERSUS INTERNATIONAL COMMERCIAL BANK TANZANIA LIMITED ....... RESPONDENT (Application from the Judgment and Decree of the High Court of Tanzania LILA. J.A.: This is a matter that need not detain the Court so much. There are two issues calling for our determination. They are simple and straight forward. They are whether or not the respondent took necessary steps to pursue the appeal within fourteen (14) days after the lapse of ninety (90) days in terms at Dar es Salaam) f Dvansobera, 3.) dated the 16th day of May, 2024 in Civil Case No. 58 of 2022 RULING OF THE COURT 10th November, 2025 & 10th April, 2026 1 of Rule 90(5) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and whether the supplementary affidavit by Mr. Oscar is defective and should be disregarded. The application is predicated under Rule 89(2) of the Rules and is supported by an affidavit affirmed by Salha Saleh Mlilima, the applicant's advocate. The applicant claims that no steps as per the law were taken and seeks for an order striking out the notice of appeal lodged by the respondent on 31/5/2024 against the decision of the High Court of Tanzania at Dar es Salaam in Civil case No. 58 of 2022 which contention is resisted through a reply affidavit sworn by Ms. Genoveva Julius Kalolo, the respondent's advocate from JBK Advocates and a supplementary reply affidavit sworn by Oscar Yaredi Maiseli, a Registry Clerk in the High Court, Dar es salaam Sub- Registry. The material facts constituting the essence of this application are well captured in the affidavit by Ms. Kalolo in paragraphs 1, 2, 3, 4 and 5, in particular. Save for the contents of paragraph 5 of the supporting affidavit, the contents of the rest of the paragraphs are not disputed by the respondent in the reply affidavit as is evident in paragraph 2 of the reply affidavit by Ms. Kalolo. The undisputed facts are that the judgment in Civil Case No. 58 of 2022 of the High Court of Tanzania, Dar es Salaam District Registry, was delivered on 16/5/2024 in favour of the applicant. Aggrieved, the respondent lodged a notice of appeal to challenge that decision on 31/5/2024, a copy of which was duly served on the applicant who, in turn lodged address of service and served a copy of the same on the respondent. Copies of the relevant documents are annexed to the supporting affidavit. The parties parted ways and this forms the crux of the dispute between them on what the applicant stated in paragraph 5 of the supporting affidavit that: "5. That since 17th May, 2024, when the Respondent applied to be supplied with copies o f judgment, decree and proceedings, the Respondent has not taken essential steps in the proceedings by lodging a letter o f reminder requesting to be supplied with copies o f judgement, decree and certified exhibits fourteen days after lapse o f ninety days from the date the Respondent requested for such documents ,"(emphasis added) Appearing for the applicants before the Court for hearing of the application were Mr. Jerome Msemwa and Ms. Salha Mlilima, learned advocates and, on the rival side, was Mr. Richard Madibi, learned Advocate. After adopting the contents of the notice of motion, the averments in supporting affidavit by Ms. Mlilima as part of his submission in Court, Mr. Msemwa was quite brief and straight forward that notwithstanding the detailed averments in the reply affidavit by Ms. Kalolo and the averments in the supplementary affidavit by Mr. Oscar, the respondent had not been able to show the steps taken within fourteen days after the lapse of ninety days after the date the letter requesting for appeal documents was written to the Deputy Registrar of the High Court as imperatively provided under rule 90(5) of the Rules. He appears not to have qualms with all that was stated but was emphatic that no letter or physical follow up was made to the Registrar of the High Court within fourteen days after the Registrar had failed to inform them of the readiness of the documents for collection and lapse of ninety days. He referred the Court to its unreported decisions in the case of EcoBank Tanzania Limited vs Nazim Ebrahim Jamal (as administrator of the Estate of the late Riyaz Ebrahim Jamal), Civil Appeal No. 178 of 2022 and State Oil Tanzania Limited vs Eguity Bank Limited and Another, Civil Application No. 426/16 of 2022, specifically pages 11 and 12, as expounding the position that after presenting a letter requesting for appeal documents and upon failure by the Registrar to supply or inform the requesting party the readiness of such documents for collection, the requesting party has, within fourteen days after lapse of ninety days, to make physical follow up to the Registrar. In this respect, Mr. Msemwa forcefully argued, nothing was done by the respondent which inaction amounts to failure to take necessary steps to pursue the appeal hence the notice of appeal lodged by the respondent should be struck out in terms of Rule 89(2) of the Rules. He attacked the supplementary reply affidavit by Mr. Oscar as being defective for, in the same affidavit, he introduced himself, at first as a Registry Clerk of the High Court Dar es Salaam Sub Registry in paragraph 1 and later in the verification clause, introducing himself as an advocate of the respondent and he urged the Court to disregard the same which will therefore render the averments by Ms. Kalolo lack legal support. On his part, Mr. Richard Madibi, disagreed with the contentions both in the supporting affidavit by Ms. Mlilima and oral submissions by Mr. Msemwa. He was firm that looking at the averments in reply and supplementary affidavits, it is vivid that the respondent took necessary steps to ensure that the documents are availed to him by the court. In elaboration, he took the Court through the various steps as chronologically narrated in the reply affidavit and supplementary affidavit. The respondent resisted the applicant's contentions in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the reply affidavit sworn by Ms. Kalolo. The gist of the contents of these paragraphs is that the respondent took necessary steps and successfully lodged an appeal on 20/12/2024. In those paragraphs, the respondent explained the chronology of events or actions taken by the respondent through Ms. Kalolo and Mr. Richard Madibi in diligently and physically following up with the High Court which efforts involved making follow up with the High Court by seeing one Oscar, a Registry Clerk in the Dar es Salaam Registr/ charged with the matter whose affidavit has been annexed to support the allegation. That, time and again, Mr. Oscar kept informing them that the documents were not yet ready for collection. That they kept in endless touch with Oscar on weekly routine or send one Ms. Happy, a Legal Officer in his Firm but to no avail as Oscar kept telling that the documents are not yet ready for collection. That the same was the position when, on 28/8/2024, she (Ms. Kalolo) personally made a physical follow up and met Oscar but was told the documents were being proofread and the copies of exhibits and certification was yet to be done as the photocopier machine was out of order which position never changed when she made a follow up on 5/9/2024. After making all these follow ups, she continued to state that, on 11/9/2024, he wrote a reminder letter repeating the same on 24/9/2024 and 29/10/2024 but Mr. Oscar still maintained that documents were not ready for collection. From then, she stated, she continued making physical follow ups to Mr. Oscar time and again. In her further reply, Ms. Kalolo stated, in the reply affidavit, that it is not a legal requirement that one should make follow up by writing letters to the High Court which she had however done but no reply was forthcoming until 30/10/2024. While the above was the case, to her surprise, on 6/11/2024, she was informed by one Ms. Happy, a Legal Officer with JBK advocates that while making a follow up, she learnt that one Kelvin, an unknown person to her, representing himself to have been sent by the respondent had collected the proceedings. That her efforts bore no fruits to find out who that person (Kelvin) was by calling one Bahati Makamba of International Commercial Bank, Gerald of Victor/ Attorneys, Gogin Attorneys who all denied knowledge of the person called Kelvin and the later one whose mobile phone was registered in the name of Deiniol Msemwa, simply cut off the call and turned unreachable. In yet another step, she said, she went to the court and met Mr. Abel who availed her with a mobile number which, upon making a call, was responded by one Lidya Massawe not Kelvin. That it was until on 7/11/2024 when she was issued by the Registrar with the whole package of documents but the last page showing the date of pronouncement of the judgment was missing and had to write a letter to the Deputy Registrar of the High Court and she called one Oscar who was in Dodoma and she was told that she had to meet him on 12/11/2024 for verification of the documents which she did and on 15/11/2024 she was given all the documents and as earlier stated; she successfully lodged a memorandum of appeal on 20/12/2024. As hinted above, Ms. Kalolo argued that Mr. Oscar swore a supplementary affidavit which fully supported her averments in respect of the rote he played on the dates they (Ms. Kalolo and Mr. Richard Madibi) made physical follow ups to the court to collect the requested documents. With respect to the contention by Mr. Msemwa that the supplementary affidavit by Mr. Oscar is defective and should be disregarded, she admitted existence of the contended anomaly but hurriedly urged the Court to treat the anomaly as a mere typographical error and insisted that Oscar is a 8 Registry Clerk as he had introduced himself in paragraph 1 of the supplementary affidavit and indicating later that he was an advocate of the respondent in the verification clause was a mere lapsus calami ^lip of the pen). He ultimately prayed the application be dismissed as the Court did in the case of Mway Arego Jombo vs NMB Bank PLC, Civil Application No. 677/08 of 2021 at pagel3 after realizing that the respondent had not taken necessary steps (page 14) and also, in Juvenary Mugyabuso vs National Bank of Commerce Ltd, Civil Application No. 584/17 of 2022. In his rejoinder submissions, Mr. Msemwa insisted that, notwithstanding the detailed explanation of the steps taken, the respondent had miserably failed to explain the steps taken within fourteen days after the lapse of ninety days of the Registrar's failure to supply and or notify the respondent of the readiness of the requested documents for collection. He accordingly impressed upon the Court to strike out the notice of appeal lodged by the respondent. In our deliberation, we are, after consideration of the contending arguments by the learned counsel of the parties, of the view that there are two issues to be considered by the Court. One, whether the respondent took necessary steps to pursue the appeal after writing a letter to the Registrar 9 of the High Court requesting to be supplied with appeal documents and two, whether the supplementary affidavit by Mr. Oscar is defective and should be disregarded. We propose to start with the later issue. We have seriously and passionately examined the supplementary affidavit under consideration. Truly, the anomaly obtains in the said affidavit but we differ with the view taken by Mr. Msemwa. Without undermining the necessity and significance of the verification clause which is actually a commitment by the maker or author of the affidavit as to the source of information or facts he has deponed in the affidavit, we, invoking the overriding objective/ find the anomaly not fatal. Mr. Oscar, as rightly argued by Mr. Madibi, had clearly introduced himself as being a Registry Clerk in the High Court of Tanzania, Dar es Salaam Sub-Registry in paragraph 1 of the supplementary affidavit. It is a matter of common knowledge that the first paragraph of an affidavit is mostly reserved for the party affirming or swearing an affidavit to introduce himself or herself. Mr. Oscar did so. The error appearing at the verification clause, in the circumstances, where it is indicated that he was an advocate of the respondent, was not therefore fatal and would not justify the whole affidavit being discarded or disregarded. It was, as stated by Mr. Madibi, a lapsus calami. By holding so, the affidavit survives the objection by Mr. Msemwa. Next for determination is the issue whether the respondent took necessary steps to process the appeal. Seriously examined, its plain that Mr. Msemwa does not dispute that the respondent took several steps as narrated in the supporting affidavit and supplementary affidavit, but his contention, as reflected in paragraph 5 of the supporting affidavit quoted above, is founded on such steps not being taken within fourteen days after the lapse of ninety days granted by the Rules to the Registrar to supply the intended appellant the requested documents in terms of Ruel 90(5) of the Rules. The said Rule provides: "(5) Subject to the provisions o f subrule ( 1 ), the Registrar shall ensure a copy o f the proceedings is ready for delivery within ninety (90) days from the date the appellant requested for such copy and the appellant shall take steps to collect copy upon being Informed by the Registrar to do so, or within fourteen (14) days after the expiry o f the ninety (90) days, "(emphasis added) ii Fortunately, we are not sailing in unchartered vessel as the provision has been a subject of the Court's interpretation in various decisions such as those cited by both Mr. Msemwa and Mr. Madibi. Of all the cited cases, important to our case is EcoBank Tanzania Limited vs Nazim Ebrahim Jamal (as administrator of the Estate of the late Riyaz Ebrahim Jamal) (supra) which, in our firm view, is in line with the stipulation of the provisions of rule 90(5) of the Rules. In it the Court, with lucidity and after citing that provision in extenso, elaborately expounded its context in these words: "it is our settled view that, the cited provision places an obligation to the intending appellant who has requested for the relevant documents for appeal purpose and who, upon expiry o f 90 days after the request was made without being informed by the Registrar that the requested documents are ready for collection; to approach the Registrar asking to be supplied with documents. It is noteworthy that, the intending appellant should do so within 14 days after the expiry o f the 90 days. In other words, there are two steps to be taken; first step; where the appellant receives the readiness notification within 90 days, he has to approach the Registrar to immediately collect 12 the requested documents, second step; where the appellant receives no notification, he has to approach the Registrar within 14 days after the lapse o f the 90 days so as to be supplied with the requested documents. We are so saying because, the preceding words in rule 90(5) o f the Rules entail the action o f going physically to the Registrar to collect the documents once notified. I f 90 days lapses without notification from the Registrar, the intending appellant has to take action by going to the Registrar within 14 days after the expiry o f 90 days to collect the documents." In the light of the above legal position, two points are clear on what should be done by the intending appellant where ninety days lapse from the date of requesting for appeal documents from the Registrar and no notification is given by the Registrar regarding their readiness for collection. One, the intending appellant has, within fourteen (14) days, to physically approach the Registrar for collection of the documents. So, to speak, it is a rule against laxity and inaction sometimes referred to as remaining home and dry after writing to the Registrar a letter requesting to be supplied with requisite documents for appeal purpose. Two, the intending appellant has to approach the Registrar, and no one else, for that purpose. Rule 3 of the Rules in clear words defines that the "Registrar of the High Court" to mean the Registrar of the High Court or Tribunal and includes a Deputy Registrar or Acting Deputy Registrar of that court or tribunal. The definition does not cover any other staff in the Registrar's office. That means, it is the Registrar who is legally charged with the duty and responsibility to prepare and supply the intending appellant with the requested appeal documents. We shall therefore gauge the facts before us according to these positions of the law in resolving the matter before us. It is common ground that the respondent requested the Registrar to be supplied with the appeal documents (copy of proceedings) by a letter dated 17/5/2024 (annexure A-3). No notification was forthcoming from the Registrar of the readiness of such documents for collection. Ninety (90) days lapsed on or around 16/8/2024 without notification from the Registrar to the respondent about the documents being ready for collection. Legally speaking, the respondent had, therefore a duty to approach the Registrar for the supply of the requested documents within fourteen (14) days reckoning from 17/8/2024 and ended on 1/9/2024. It is Mr. Msemwa's contention that the intending appellant did not make such physical follow- 14 up amounting to failure to take necessary steps. Mr. Mabidi is of a different view. We have seriously examined the record and affidavit evidence which comprises of the averments by Ms. Kalolo in her supporting affidavit and the annexures thereof. It is apparently clear that the intending had ever not approached or met the Registrar of the High Court Dar es Salaam Sub- Registry asking to be supplied with requested documents. The respondent, in her long and detailed explanation of the steps she allegedly took, relies on writing various letters, the last reminder letters having been written on 11/9/2024, 24/9/2024 and 29/10/2024. Apart from the reminder letters to the Registrar being written beyond the fourteen (14) days after lapse of ninety (90) days from the date of requesting the appeal documents, this is not what is envisaged to be done after lapse of ninety (90) days without any notification by the Registrar under Rule 90(5) of the Rules as interpreted above. The requirement is to face the Registrar for supply of requested appeal documents. Secondly, the respondent relies on her contention that Ms. Kalolo and Mr. Madibi made physical follow-ups to the court where they regularly met one Oscar and were told that the documents ere yet to be ready for collection which contention finds support from Mr. Oscar's 15 complementary reply affidavit. This argument too, is of no assistance to the respondent. The law, in unambiguous terms specifically and categorically vests the duty to notify the intended appellant of the readiness for collection of the requested documents or supply of the requested appeal documents to the intended appellant in the event he is faced with him, on the Registrar and no one else. The provision provides no opportunity to delegate such mandate to any one save, in terms of the definition of who is the Registrar under rule 3 of the Rules, for such duty being also performed by a Deputy Registrar in the High Court Sub-Registr/ as was the case herein. Much as we are alive that a Registry Clerk like Oscar works under the supervision of the Registrar that does not legally empower him to perform duties of the Registrar specifically assigned to him by the law (The Rules). It is the Registrar who is accountable for anything that occurs in the Registry. Registry clerks or Registry Assistants assist the Registrar in performing his duties. They work under the guidance and supervision of the Registrar. That said, Oscar's affidavit clearly shows and proves that the respondent did not comply with the import of rule 90(5) of the Rules. As day follows the night, we entirely agree with Mr. Msemwa that the respondent did not comply with the law and that amounts to failure to take 16 essential steps in the proceedings within the prescribed fourteen (14) days under rule 90(5) of the Rules. Accordingly, the applicant's application has merit. The notice of appeal lodged by the respondent on 31/5/2024 against the judgment and decree in Civil Case No. 58 of 2022 is hereby struck out with costs. DATED at DODOMA this 31s t day of March, 2026. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Ruling delivered this 10th day of April, 2026 in the presence of Ms. Salha Mlilima, learned counsel for the applicants, Ms. Milca Ikengo, learned counsel for the respondent and Mr. Julias Kilimba, Court Clerk via virtual Court; is he^b^|rtified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 17