National Bank of Commerce Limited vs Salehe Salmin Abri (Civil Application No. 202506110001127 of 2025) [2025] TZCA 1278 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KITUSI. 3.A.. KAIRO 3.A. And MURUKE. J.A.^ CIVIL APPLICATION NO. 202506110001127 OF 2025 NATIONAL BANK OF COMMERCE LIMITED .................................. APPLICANT VERSUS SALEHE SALMIN ABRI..............................................................RESPONDENT (Application arising from Respondent's Notice of Appeal against the Ruling and Drawn Order of the High Court of the United Republic of Tanzania, at Dar es salaam) (Ismail. J.^ dated the 19th May, 2022 in Miscellaneous Civil Application No. 61 of 2022 RULING OF THE COURT 5th & 12THDecember, 2025. MURUKE J.A.: The respondent, Salehe Salmin Abri, was a losing party in the High Court Civil Case No 31 of 2021. In that case, the respondent was held responsible as a mortgagor of a property on plot No 37 Block IB Wilolesi Area, Iringa Township, the property that was pledged to secure a loan facility issued by the applicant, the bank. Being dissatisfied, the Respondent sought extension of time to lodge an application for review before the High Court, which was registered as Miscellaneous Civil application No. 61 of 2022, against the decision of the same Court in Civil Case No. 31 of 2011. That, after hearing, the High Court dismissed Misc. Civil Application No. 61 of 2022, with costs for failure by the applicant to demonstrate sufficient cause to warrant grant of extension of time to file an application for review. Being aggrieved by the High Court ruling on 23rd May, 2022, the respondent lodged before this Court a Notice of appeal manifesting his intention to appeal against the whole decision of the High Court in Misc. Civil Application No. 61 of 2022 and on the same day wrote a letter requesting to be supplied with the certified copies of the proceedings, ruling and drawn order. After being served with the Notice of Appeal, the applicant filed Notice of Address for service on 31st May, 2022. Since then, the record is silent to the date of filing the present application on 11th June, 2025, seeking to strike out the respondent's Notice of Appeal, intending to challenge the ruling and drawn order of the High Court in Miscellaneous civil application No. 61 of 2022 delivered on the 19th May, 2022 for failure to take essential steps in instituting the intended appeal. At the hearing of the application, Mr. Beda Kapinga, learned counsel, appeared representing the applicant. The respondent not only did not file a reply affidavit, but also did not make any appearance on the 2 date set for hearing, despite service in terms of Court process server affidavit available on record for verifications. Having satisfied that the respondent was dully served as alluded above and defaulted appearance, the matter proceeded in his absence, in terms of Rule 63 (2) of the Tanzania Court of Appeal Rules 2009, (the Rules). When given floor, the applicant counsel submitted briefly that the respondent has not taken any step after filing the Notice of Appeal on 23rd May, 2022 and written letter to request requisite documents for appeal purposes. Despite the High Court to issue certified copies of proceedings, ruling and drawn order's in Miscellaneous civil application No. 61 of 2022, the respondent has failed to take essential steps in instituting his appeal for more than 2 years, from 23rd May, 2022 when the Notice of Appeal was lodged before this Court. In short the applicant has not complied with rule 90(5) of the Rules, insisted Mr. Kapinga, who then beeseched us, to strike out the respondent's notice of appeal with costs. Having heard the applicant counsel in his brief submission, and gone through the affidavit in support of the application , it is clear to us that according to the record, that since filing of the notice of appeal and letter requesting for requisite documents for appeal purposes, there is nothing done by the respondent to initiate the appeal. The respondent was to file 3 his appeal within 60 days, from the date when the Notice of Appeal was lodged, but that has not been done. The respondent has written letter requesting for copy of requisite document for appeal purposes, however, he ought to have written letter to remind the deputy registrar of the High Court after elapse of 90 days within 14 days in terms of Rule 90 (5) of the Rules that provides as follows: "Subject to the provision o f sub rule (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 inform ed by the Registrar to do so, or within fourteen (14) days after the expiry o f the 90 days" Failure to remind the Registrar within 14 days after the elapse of 90 days from when the intending appellant requested a copy, amounts to inaction by the respondent, that attract invoking of rule 89(2) of the Rules. The position was well stated by the Court in the case of Equity Bank Tanzania Limited vs Bashasha Merchandise Dealers Limited Civil Application No. 466/16 of 2022, TZCA at Dar es Salaam, Cited the case of Tanzania Bureau of Standards and Another v. Erythis Trading Company, Civil Application No. 493/16 of 2020 [2022] TZCA 537 (6 September 2022, TANZLII), at pages 13-14 that: "7/7 lig h t o f the provisions o f Rule 90(5) o f the Rules, the consequence o f the failure to approach the Registrar within the prescribed period is now dear. The failure amounts to failure to take necessary steps within the meaning o f rule 89(2) o f the Rules." The applicant has averred at paragraph 7 of the affidavit in support of the notice of motion that the copy of the requisite documents requested by the respondent were ready for collection only that the respondent has not collected the same. With respect, there is no any attachment in the affidavit to prove the averments. Affidavit being sworn evidence reduced into writings, evidence need to be attached to prove any alleged fact that needs proof. Otherwise, bare assertion cannot be accepted. The respondent cannot be blamed for that, without there being the Deputy Registrar letter, notifying him that the requested documents are ready for collection. What is so glaring is failure by the respondent to remind the registrar after expiry of 90 days within 14 days from the date requested for copy of documents, this amount to inaction to pursue his intended appeal. In totality, the respondent's Notice of Appeal filed on 23rd May, 2022 challenging ruling of the High Court in Misc. Civil Application No 61 of 2022 is struck out with costs. DATED at DAR ES SALAAM this 12thday of December, 2025. I. P. KITUSI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL Ruling delivered this 12th day of December, 2025 to Mr. Bedda Kapinga, learned counsel for Applicant, via telephone, in the presence of Mr. Shaba Mtunge, holding brief for Mr. J. R. Kambamwene, 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 6