Mahmood Salum Chibago @ Mahmood Salum Chibago Mhina vs National Bank of Commerce Ltd (Civil Application No. 323/17 of 2024) [2025] TZCA 1272 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: KITUSI, J.A.. KAIRO. J.A., And MURUKE, J J U CIVIL APPLICATION NO. 323/17 OF 2024 MAHMOUD SALUM CHIBAGO @ MAHMOUD SALUM CHIBAGO MHINA...................................... APPLICANT VERSUS NATIONAL BANK OF COMMERCE LTD ................................ RESPONDENT (Application to strike out a notice of appeal in respect of the Judgement and Decree of the High Court of Tanzania, Land Division at Dar es salaam) (Mgay^JLl dated the 23r d day of March, 2016 in Land Case No. 299 of 2009 RULING OF THE COURT 3rd & 12th December, 2025 KAIRO, J.A.: By a notice of motion preferred under rules 89 (2) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant has moved this Court to strike out a notice of appeal lodged by the respondent on 21/7/ 2017, against the decision of the High Court of Tanzania, (Land Division) in Land Case No. 299 of 2009 delivered on 23/3/2016 on the ground that, the respondent has failed to take essential steps to prosecute the intended appeal. According to the notice of motion, the failure is two l fold: one; no appeal has been filed while the judgment and decree were already rectified and thus ready for collection on 3/11/2022, two; even if the respondent has filed the appeal, the record of appeal has not been served to the applicant. Supporting the application is an affidavit affirmed by the applicant herein. The same was opposed by the respondent through an affidavit in reply affirmed by Ms. Mariam Ismail, learned counsel who also represented the respondent at the hearing. We wish to point out from the beginning that, what the applicant deposed in the affidavit was recapitulated by Mr. Dismas Mbando, learned counsel who represented the applicant at the hearing. The applicant has also filed a written submission to amplify his affidavit in support of the application, and adopted both as part of his oral submissions. From the affidavit sworn by the applicant which also serves as material facts that culminated to this application is that:- Having been aggrieved by the decision subject to challenge delivered on 23/3/2016, the applicant on 21/7/2016 lodged a notice of appeal and also submitted a letter to the Registrar of the High Court Land Division (the Registrar) 2 requesting for certified copies of the relevant documents for appeal purpose on 13/5/2016. Upon being supplied with the judgment and decree subject to challenge, the respondent discovered some errors and on 3/3/2020, she wrote to the Registrar requesting for rectification. The applicant further deposed that, though on 23/2/2022, the respondent reminded the Registrar through a letter on the requested correction of the judgement and decree, but earlier on the applicant had instituted an application number 226/17 of 2021 in the Court due to what the applicant claimed to be the respondent's laxity in pursuing the intended appeal wherein he sought to have the notice of appeal lodged, struck out. However, the Court did not grant the application for the reason that, the appeal could not lie without first, correcting the judgment and the decree noted to have errors. It was his further deposition that, the corrected copies of the judgment and decree were ready since 3/11/22 but until the filing of this application; about 17 months later, the respondent has not made any follow-up of the said copies; the inaction which the applicant claimed to amount to failure to take essential steps towards the lodging of the 3 intended appeal in terms of rule 89 (2) of the Rules thus, justifies the striking out of the notice of appeal as a remedy. Mr. Mbando cited the case of Tanga City Council and Others vs Tanga General Industries Limited, Civil Application No. 162/12 of 2023 [2024] TZCA 6 (9 May 2024) TANZLII to back up his argument. In her brief but focused reply, Ms. Ismail vehemently refuted the applicant's claim that, the respondent has not taken essential steps in pursuing the intended appeal. In clarification, she submitted that, the respondent has not yet received any notification from the Registrar informing her that, the judgment and decree have been corrected and thus, ready for collection since she requested the rectification. As such, the assertion by the applicant that, the copies were corrected on 3/11/2022 was within the knowledge of the applicant himself. She went on to submit that, since the respondent wrote the letter to the Registrar requesting to be supplied with the relevant documents for appeal purpose on 13/5/2016, together with the certificate of delay and further on 3/3/2020, requested for rectification of the noted errors in the judgment and decree, none of the requested documents was ever 4 supplied to the respondent despite several follow-ups and reminder letters as listed in paragraph 5 of the affidavit in reply. To wind up, Ms. Ismail, prayed the Court to rule that, the respondent has taken the essential steps towards the lodging of the intended appeal and therefore, the applicant has failed to disclose sufficient cause to justify the striking out of the notice of appeal and dismiss the application with costs. When invited to make his rejoinder Mr. Mbando echoed his submissions in chief insisting that, the rectification of the errors effected on 3/11/2022 means, the documents were ready for collection as well on the said date. Besides, he contended, no letter was again written to the Registrar requesting to be availed with the relevant documents for appeal. He therefore reiterated his prayer to have the notice of appeal struck out. Having heard the contending submissions by the counsel for the parties and going through the Court record, the issue for our determination is whether or not the application is meritorious. The parties are at one that, upon being supplied with the judgment and decree subject to challenge, the respondent noted some errors and wrote the Registrar on 3/3/2020 praying for correction. There is further 5 no dispute that, the intended appeal has not been lodged since then. The applicant contended that, the documents were corrected on 3/11/2022 thus ready for collection by the respondent so as to lodge the intended appeal. However, she neither followed-up nor collected them and by the time he was instituting this application, 17 months have lapsed without lodging it, the inaction which according to him, amounts to failure to take essential steps in terms of rule 89 (2) of the Rules. The respondent vehemently refuted the contention. She submitted that, she has never been received any communication from the Registrar informing her that the rectification of the documents was ready for collection despite several follow-ups made, which submission we subscribe to. Indeed, there is no any official communication to the respondent informing her that the rectification requested has been effected and the documents were ready for collection. Besides, even the applicant has not brought any evidence to prove otherwise. It is also on record that, the applicant has attached a litany of letters she wrote to the Registrar, as reminders for her request to be supplied with the certified copies of the proceedings, corrected judgment and decree and other relevant documents for appeal purpose, including certificate of delay as shown in paragraph 5 of the affidavit in reply. Unfortunately, nothing was forthcoming and no official communication was received. Though the applicant has attached the claimed copies of the corrected judgment, decree and proceedings in respect of Land Case No 299 of 2009 suggesting to have been corrected on 3/11/2022, but it is not stated when and how the copies were availed to the applicant. On that account, it cannot be ascertained if the referred copies of the purported corrected documents were officially obtained. Besides, there is no evidence that, the readiness of the said correction was communicated to the respondent. The Court has insisted that, the importance of official communication is to discourage clandestine obtaining of documents [See: Henry Zephyrine Kitambwa vs The President of the United Republic of Tanzania and Two Others, Civil Appeal No. 114 of 2020 (unreported). It is noteworthy that, the respondent has also requested to be supplied with the certificate of delay, but there is none in the claimed corrected documents supplied to the applicant. That apart, it is a legal stance that, in the absence of the Registrar's official notification to the 7 respondent on the readiness of the requested documents for collection, the respondent can not benefit from the proviso of rule 90 (1) of the Rules, otherwise the appeal would be time barred for being lodged beyond the prescribed 60 days. In other words, the documents for the purpose of an appeal should be secured after the appellant has obtained the Registrar's official communication that, the requested documents are ready for collection. [See: The Board of Trustees of the National Social Security Fund vs New Kilimanjaro Bazaar Limited, (2005) T.L.R. 160 where the Court among others observed as follows: "... There should have been, in our view, an official communication from the Registrar to the learned advocate for the appellant that, the documents requested in their letter dated lCfh February, 2003 were ready for collection and after that the Registrar would issue a certificate . . . " In LRM Investment Company LTD and 5 others vs Diamond Trust Bank Tanzania Limited, Civil Appeal No. I l l of 2019, [2022] TZCA 315 (2 June 2022) official communication was stated to be the one which is formal and must be documented and not otherwise. As such, the cited case of Tanga City Council and Others vs Tanga General Industries Limited (supra) is irrelevant in the circumstances of this matter. Flowing from the above authorities and basing on what we have endeavored to discuss, we find the application unwarranted. Consequently, we dismiss it with costs. DATED at DAR ES SALAAM this day 11th of December, 2025. I. P. KITUSI JUSTICEOFAPPEAL L. G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 12th day of December, 2025 in the presence applicant in person, Ms. Mariam Ismail, learned counsel for the Respondent, and Ms. Anna Utou, Court Clerk, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 9