Amina Swalehe Molel vs Farid Hassan Haji (Civil Application No. 987 of 2025) [2025] TZCA 1275 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KITUSI, J.A.. KAIRO, J.A.. And MURUKE. J.A/> CIVIL APPLICATION NO. 987 OF 2025 AMINA SWALEHE MOLEL............................................................ APPLICANT VERSUS FARID HASSAN HAJI...............................................................RESPONDENT (Application to strike out a notice of appeal in respect of the Judgement and Decree of the High Court of Tanzania, at Temeke Sub Registry One Stop Judicial Centre at Temeke) (Sarrwat Kazi. J.) dated the 15th day of October, 2024 in Civil Appeal No. 18365 of 2024 RULING OF THE COURT 4 h & 12th December, 2025 KAIRO. 3.A.: The applicant herein seeks to move the Court to strike out a notice of appeal lodged by the respondent on 28/10/2024 in respect of the judgment and decree of the High Court of Tanzania, Temeke Sub Registry (One Stop Judicial Centre) at Temeke in Civil Appeal No. 18365 of 2024 on the ground that, the respondent has failed to take essential steps to pursue his appeal. The application is supported by an affidavit sworn by the applicant. The same was opposed by the respondent through an affidavit in reply affirmed by the respondent. l Briefly, the facts that resulted to this application is that, the parties herein were wife and husband respectively. Following some misunderstandings between them, the respondent petitioned for divorce which was granted. However, they locked horns on the issue of distribution of matrimonial properties which eventually landed them at the High Court of Tanzania at Temeke One Stop Judicial Centre, for appeal. The High Court upheld the decision to award a matrimonial house situate at Tabata Bonyokwa in Ilala District Municipality within Dar es Salaam City to the applicant in its decision delivered on 15/10/2024. The decision disgruntled the respondent. He therefore wrote a letter to the Registrar requesting for relevant documents for appeal purposes and further lodged a notice of appeal on 27/10/2024 and 28/10/2024, respectively so as to challenge the said decision. This is the notice of appeal that the applicant is pleading with the Court to have it struck out for the respondent's failure to take essential steps. When the application was placed before us for hearing, Messrs. Ashiru Hussein Lugwisa and John Msifuni Msuya represented the applicant and the respondent respectively. Submitting in support of the application, Mr. Lugwisa submitted that, he has gone through the affidavit in reply and noted that, the respondent has already lodged the contemplated appeal since on 27/12/2024. That notwithstanding, the learned counsel still maintained 2 that, the application was valid because under rule 97 (1) of the Rules, the respondent was required to serve the applicant with the record of appeal within 7 days from the date when the appeal was lodged. He went on to submit that, nowhere in the affidavit in reply has the respondent stated that, the record of appeal was served on the applicant within the 7 days prescribed under rule 97 (1) of the Rules. Mr. Lugwisa added that, where the rule is contravened, the appeal lodged can not lie as the same is rendered incompetent and bound to be struck out as a consequence. In that respect, even the notice of appeal cannot stand. To buttress his argument, he cited the case of Marwan Al Zaeim vs Elite Tower Limited & 2 Others, Civil Appeal No. 25 of 2022 [2025] TZCA 680 (2 July, 2025) TANZLII. Winding up, the learned counsel argued that, since the record of appeal was not served on the applicant within the prescribed time, the omission amounted to failure to take essential step towards the pursuit of the appeal. Mr. Lugwisa thus, implored the Court to strike out the notice of appeal in terms of rule 89 (2) of the Rules as no appeal lies, with costs. In his reply, Mr. Msuya submitted that, the application is misconceived for being brought after the respondent had already lodged the record of appeal on 27/12/2024 and registered as Civil Appeal No. 1606 of 2024. As such, it is overtaken by event. 3 As regards the claimed failure to serve the applicant with the record of appeal, the learned counsel submitted that, neither the applicant nor his advocate could be traced to effect the service. He went on to submit that, the process server who failed to trace them had sworn an affidavit to that effect, but unfortunately, the affidavit was misplaced and that is the reason why it was not attached to the affidavit in reply. Nevertheless, Mr. Msuya hastened to add that, the said affidavit was attached to the lodged appeal which was uploaded in the Court system, and thus, it could still be seen therein together with the lodged appeal. According to him, Mr. Lugwisa has the knowledge of the institution of the appeal and thus, his claim of not being served has no basis. In his further submission, Mr. Msuya insisted that, the essential steps in terms of rule 89 (2) of the Rules entail those which were supposed to be taken before the institution of the intended appeal and not otherwise. He therefore prayed the Court to dismiss this application with costs for want of merit. In his rejoinder, Mr. Lugwisa submitted that, the claim that the applicant could not be traced for service is a mere statement from the bar for lack of evidence to substantiate it. He therefore beseeched the Court to disregard it. He referred us to the case of Rosemary Stella Chambejairo vs David Kitundu Jairo, Civil Ref. No. 6 of 2018 [2021] TZCA 442 (2 September 2021 TANZLII to back up his submission. 4 Refuting Mr. Msuya's argument that the applicant has knowledge of the lodged appeal as the same was uploaded into the Court's system where he could have accessed, Mr. Lugwisa stated that, the uploaded record of appeal is neither a substitute nor does it replace the requirement to serve the applicant with the record of appeal. He insisted that, non- compliance with rule 97 (1) of the Rules amounts to failure to take essential steps in terms of rule 89 (2) of the Rules and reiterated his prayer to Court to find the application merited and grant it, with costs. Going through the Court record and having heard the rival arguments by the parties' counsel, it is a common ground that, the intended appeal has already been lodged by the respondent since 27/12/2024. The parties are also at one that, the respondent has not served the applicant with the memorandum of appeal and the record of appeal as required under rule 97 (1) of the Rules. The issue we are called to determine therefore is whether the omission to serve the applicant with the record of appeal amounts to failure to take essential steps in terms of rule 89 (2) of the Rules, to warrant the striking out of the notice of appeal despite the fact that the lodged appeal is already pending in Court. Our starting point is rule 97 (1) of the Rules which states: "the appellant shall, before or within seven days after lodging the memorandum of appeal and the record of appeal in the appropriate registry, serve 5 copies of them on each respondent who has complied with the requirement of rule 86". It is noteworthy that the provision is couched in mandatory terms which signifies that, the duty or obligation imposed to the intended appellant therein, (the respondent herein) was compulsory and not permissive. In fact, there is no room to wriggle out or exercise discretion in performing the directed duty. The requirement is in conformity with the rule against ambush and embarrassing the opponent party as he/she has to be aware of the intended appellant's complaints/grievances immediately after the same was lodged in the appropriate registry to enable the respondent to prepare to counter it if need be. [See: Shirika la Meli la Zanzibar and the Hon. Attorney General vs Mohamed Hassan Juma and Others, Civil Appeal No. 56 of 2006 [2006] TZCA 384 (13 September 2006) TANZLII. On that basis, the respondent's argument that, the applicant, though not served, ought to have known on the lodged appeal as the same was uploaded in the Court's system, does not hold water, with much respect to Mr. Msuya. As correctly submitted by Mr. Lugwisa, uploading the record of appeal in the system is not an alternative to the requirement to serve the applicant in terms of rule 97 (1) of the Rules. As regards the respondent's submission that the applicant could not be traced, suffice to state that, the assertion was not substantiated. Thus, 6 the Court cannot rely on it. After all, it is a mere statement from the bar as the same was not stated in the respondent's affidavit in reply. The argument that the application was overtaken by event, having been filed after the lodging of the intended appeal shows misconception on the applicability of rule 89 (2) of the Rules. This is because the same can be invoked against a pendant appeal in the circumstances where some necessary steps were not taken as it happened in the case at hand. In other words, failure to comply with rule 97 (1) of the Rules is considered to be failure to take essential steps in terms of rule 89 (2) of the Rules. [See: Bi Asha Seif and Another vs Banjeet Gokal Damji, Civil Appeal No. 50 of 2012 [2012] TZCA 150 (12 Dec 2012)] For ease of reference we find it apposite to quote it as follows: "89 (2) Subject to the provision of sub rule (1), any other person on whom the notice of appeal was served or ought to have been served, may at any time either before or after the institution of the appeal, apply to the Court to strike out the notice of appeal or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time" [Emphasis added] 7 It is for the foregoing reasons that, we find the application with merit and grant it accordingly. Consequently, the notice of appeal lodged on 28/10/2024 expressing the respondent's intention to appeal against the decision of the High Court of Tanzania, Temeke Sub Registry (One Stop Judicial Centre) at Temeke in Civil Appeal No. 18365 of 2024, is hereby struck out, with costs. DATED at DAR ES SALAAM this day 12th of December, 2025. I. P. KITUSI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 12th day of December, 2025 to Mr. Ashiru Lugwisa, learned counsel for the Applicant, via Telephone, in the presence of Mr. John Msifuni Msuya, learned counsel for the Respondent, and Ms. Anna Utou, Court clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 8