State Oil Tanzania Limited vs Equity Bank Tanzania Ltd and Another (Civil Application No.426/16 of 2022) [2022] TZCA 3064 (18 November 2022)

STATE OIL TANZANIA LIMITED vs EQUITY BANK TANZANIA LTD & 1 ANOTHER COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: WAMBALI, J.A, GALEBA, J.A, KAIRO, J.A) CIVIL APPLICATION NO.426/16 OF 2022 (Arising from Commercial Case No. 105 of 2020 High Court of Tanzania (Commercial Division) at Dar es salaam, Magoiga J dated 01 st October 2021) Court of Appeal procedure and practice – Application to stuck out Notice of Appeal – whether essential stapes has been taken. Court of Appeal procedure and practice – Application to struck out notice of appeal – whether application has been taken out the prescribed time. In this application the applicant moved the Court to strike out a notice of appeal lodged by the respondents on the ground that an essential step has not been taken within the prescribed time. The applicant initiated Commercial Case No. 105 of 2020, claiming various declaratory and financial reliefs against the respondents. The latter disputed the claims in the suit and put up two separate counter claims against the applicant. Following a full hearing of the matter, the applicant's reliefs were mainly granted with costs. As for the outcome of the respondents' counter claims, both were dismissed with costs by the High Court (Hon. Magoiga J.). The respondents were aggrieved by that decision which was handed down on 1st October 2021. The notice of appeal was lodged and a letter requesting for a copy of the proceedings under rule 90 (1) of the Rules was also served on the Registrar of the High Court, quite in time. However, ninety (90) days expired without the Registrar of the High Court notifying the respondents that the documents requested were ready for collection. The respondents did not remind the Registrar of the High Court of their request for the documents within fourteen (14) days that followed the ninety (90) days of the Registrar's delay. It suffices to hint that all arguments and submissions of parties in this matter oscillate around that respondents' omission, and the decision in this ruling is meant to address the very point. Held: (i) Even if the respondent would have written the letter of reminder to the registrar of the high court within 14 days after expiry of 90 days still, he would not have supplied the requested copy of the proceedings the continuations reminder by the respondent after expiry of 14 days amounts into essential stapes we of the affirmed view that the respondent did not sit back and relax home dry. (ii) An application to strike out a notice of appeal may be filed before or after an appeal has been lodged. The Application was dismissed with costs. Statutory provisions referred to: (i) Court of Appeal Rules, 2009. Case law referred to: (i) Saleh Abdi Mohamed vs Katibu wa Baraza la Mapinduzi & Another [2018] T.L.R 324. (ii) The Regional Manager – TANROADS Lindi vs DB Shapriya and Company Ltd, Civil Application No.29 of 2012(Unreported). Mr. Frank Mwalongo Octavianus Learned Advocate appeared for Applicants. Mr Timon Vitalis and Dr. Abel Mwiburi both learned Advocates appeared for the Respondent.