Tanzania Cigarette Public Company Limited vs Tema Enterprises Limited (Civil Application No. 251/16 of 2024) [2025] TZCA 1269 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KITUSI. J.A.. KAIRO J.A. And MURUKE. J.A.) CIVIL APPLICATION NO. 251/16 OF 2024 TANZANIA CIGARETTE PUBLIC COMPANY LIMITED ......................APPLICANT VERSUS TEMA ENTERPRISES LIMITED.................................................... RESPONDENT (Application arising from the Judgment and Decree of the High Court of Tanzania (Commercial Division), at Dar es salaam) (MBANGWA. dated the 2n d July, 2024. in Commercial Case No. 17 of 2022 RULING OF THE COURT 2n d & 1^December, 2025. MURUKE J.A.: This application was lodged on 16th April, 2024 seeking to strike out a Notice of Appeal, which was filed by the respondent on 16th June, 2023. The application is predicated on rule 89(2) of the Tanzania Court of Appeal Rules 2009 (the Rules). According to the applicant, the respondent has failed to take essential step in the proceedings in terms of Rule 90(1) and 90(2) of the Rules to challenge the Judgment of the High Court which was pronounced on 2n d June, 2023. i According to the affidavit of Mr. Michael Peter Mahende, counsel for the applicant, in support of the notice of motion, since delivery of the Judgment in Commercial Case No. 17 of 2022 on the date mentioned, other than service of the notice of appeal on 28th June, 2023 there has not been any other step taken by the respondent, to lodge the intended appeal, to the date of filing the present application, on 16th April, 2024. The respondent not only did not file a reply affidavit, but also did not make any appearance on the date set for hearing. According to the affidavit of the Court Process Server Mr. Salum Edward, the respondent was served through her counsel who filed Notice of appeal, Mr. Musa Kiobya of Trust Worth Attorneys, 1s t Floor Co-Architecture Building, India / Brige Street, on 1s t December, 2025. Despite service in terms of Court process server affidavit available on record for verifications, yet as said before, there was no appearance. Having satisfied that the respondent was dully served as alluded above and defaulted appearance, the matter proceeded in her absence, in terms of Rule 63 (2) of the Rules. The applicant counsel submitted briefly that the respondent has not taken any step after filing the Notice of Appeal on 16thJune, 2023 and served the same to the applicant on 28th June, 2023. In short, the applicant has not complied with Rule 90(1) and 90(2) of the Rules, insisted Mr. Mahende, who then requested us, to strike out the respondent's Notice of Appeal with costs. It is without dispute that the respondent was served with notice of hearing on 1s t December, 2025 and yet, for unknown reason, there is no appearance and made no effort whatsoever to file affidavit in reply. Thus, the factual averments as contained in the applicant's affidavit stand uncontested. Having heard and considered the brief, but focused submissions by Mr. Mahende, our starting point will be the provision of Rule 89 (2) of the rules on striking notice of appeal, same provide as follows: "89-(2). Subject to the provisions o f sub-rule (1), any other person on whom a notice o f appeal was served or ought to have been served may at any time, either before or after the institution o f the appeal, apply to the court to strike out the notice o f 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 . " In the case at hand, the respondent lodged her Notice of Appeal on 16th June, 2023 which was received and acknowledged by counsel for the applicant on 28th June, 2023. However, the respondent has not served the applicant with letter indicating that the respondent has requested for a copy of the proceedings, in the High Court within prescribed time of thirty days as required by rule 90(1) of the Rules. The respondent was to file her appeal 3 within 60 days, from the date when the Notice of Appeal was lodged, but that has not been done by the respondent. Effects of inaction by the respondent has been discussed by the Court in the case of District Executive Director Kilwa District Council v. Bogeta Engineering Limited [2019] T.L.R. 271, that "Ru/e 90(1) and (2) o f the Rules, 2009 requires a party lodging an appeal to file it within sixty days from the date when the notice o f appeal was lodged, the only exception to this requirement is where he has not obtained a copy o f the proceedings from the High Court and has applied for the same within thirty days o f the date o f the decision against which it is desired to appeal." In the case at hand, the respondent did not serve applicant with the letter requesting copy of proceedings to benefit from the exception Further, the position that failure by the respondent to file the intended appeal within 60 days was also insisted by the Court in the case of Olivia Kisinga Mdete v.Hilda Mkinga, Civil Application No. 4 of 2011 (unreported) that: "The law is now settled, upon lodging a Notice o fAppeal, the intending appellant must not sit back but is required to move the process forward by taking essential steps that have been clearly outlined by the Court o f Appeal Rules. The applicant was entitled to move the Court under Rule 89(2) to strike out a notice o f appeal where no essential steps have been taken beyond that notice." We are in agreement by the applicant counsel that the respondent has failed to take any essential step in pursuing the intended appeal. We have noted with concerns following issues: one; that since filing of the Notice of Appeal on 16 June, 2023 to the date of filing present application on 16th April, 2024 is period of 10 months, two; equally so, since filing of a Notice of appeal to the date of hearing of the application is a period of almost 30 months. Three; the respondent did not file affidavit in reply to contest the application. Four; that despite service to the respondent with notice of hearing, no appearance made. All the above observations, indicate that the respondent filed Notice of the Appeal to the Court, just to pack the file in the registry. That is not good litigation conduct, rather, it is an abuse of the judicial process. The applicant counsel has urged the Court to strike out the respondent Notice of Appeal with costs. Before doing so, we wish to reiterate and insist that, the rationale behind paying costs in any court of law is rooted in fairness, efficiency and justice. Major reasons of awarding costs are: one; to compensate the successful party on the expenses they reasonably incurred, thus preventing the wining party from suffering the financial loss for asserting a valid legal right. 5 Two; deter frivolous or vexatious litigation as the costs discourage filing of weak, baseless or malicious claims, therefore encourage responsible use of the legal system and reduce unnecessary burden on courts. Three; to encourage settlement, since litigation is costly, possibility of an order for costs pushes the parties to consider for settlement instead of going for trial, thus saves judicial time and reduces conflict, ultimately promotes efficient dispute resolution. Four; Costs awards help level the playing field. Without costs, a wealth party could outspend a poorer one and drag them into expensive litigations just to wear them down. Thus, awarding of costs promotes equity and fairness in legal proceedings. Five; by awarding costs, against one delaying the case or acting in bad faith, prevent abuse of the judicial process. Six; costs help to ensure that court time and resources are not wasted, by discouraging unnecessary hearings, applications or delays, thus helps the courts of law operate smoothly and efficiently. We have considered respondent conduct of filing the notice of appeal without taking any action from 16th June, 2023 to the date of hearing 2n d December, 2025 being period of 30 months as an abuse of court process and more so dragged applicant into unnecessary litigation and costs. Present application has merits, Notice of Appeal filed on 16th June, 2023 by the respondent is struck out with costs. 6 It is so ordered. DATED at DAR ES SALAAM this 11th day 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 in the presence of Mr. Michael Peter Mahende, learned counsel for Applicant, and also holding brief for Mr. Musa Kiobya, learned counsel for the Respondent via virtual Court and Ms. Anna Utou, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 7