CAT Net Limited vs Tanzania Communication Regulatory Authority (Civil Application No. 526/01 of 2020) [2022] TZCA 3047 (6 October 2022)

CAT NET LIMITED v. TANZANIA COMMUNICATION REGULATORY AUTHORITY IN THE COURT OF APPEAL OF TANZANIA (CORAM: MKUYE, MWANDAMBO AND KITUSI, JJA) CIVIL APPLICATION NO. 526/01 OF 2020 Civil practice and procedure- Appeals- appearance of parties- consequences for non- appearance when a party has been duly served with court summons. Civil practice and procedure- affidavit- affidavit contains hearsay – whether a person named in the affidavit need to sworn affidavit to. Civil practice and procedure- appearance of parties- grounds for rehearing of application – whether existence of legal issue amount to sufficient cause under rule 63 (3) of the court rules. The applicant, being aggrieved by the decision of this Court in Civil Application No. 342/01 of 2018, in which his notice of appeal was struck out, sought to challenge that decision. The struck-out notice of appeal had been filed with the intention of appealing against the decision of the High Court of Tanzania at Dar es Salaam in Civil Case No. 107 of 2014. The application to strike out the notice of appeal was heard and determined in the applicant’s absence pursuant to rule 63(2) of the Tanzania Court of Appeal Rules, 2009, after the applicant failed to appear despite having been duly served. Aggrieved by that outcome, the applicant filed the present application by way of notice of motion under rule 63(3) of the Rules, seeking a rehearing of the application. The application was supported by two affidavits, both sworn on behalf of the applicant, the first by Mr. Matojo Mushumba Cosatta, Director of the Legal Services Department, and the second by Mr. Ramesh Kansara, a Director of the applicant. In opposition, the respondent filed an affidavit in reply

sworn by Mr. Jehovaness Zacharia, the Principal Legal Officer of the respondent. Held: (i) The Court held that the claim regarding Mr. Cosatta’s illness was insignificant because, even if he was genuinely unable to appear in Court, he was nonetheless obliged to inform the Court of his condition before or at the time the application was called for hearing. Since no such notice was given, the applicant failed to establish sufficient cause to warrant a re-hearing under rule 63(3) of the Tanzania Court of Appeal Rules, 2009. (ii) Furthermore, the Court noted that affidavits from the court staff were necessary to corroborate Mr. Cosatta’s assertion that he had appeared at Court. In the absence of such supporting evidence, his claim was considered unsubstantiated and unreliable. (iii) The Court also rejected the argument that the application should be allowed due to the existence of an important legal issue concerning the retrospective operation of procedural laws. This point was deemed irrelevant and out of context, as it did not amount to sufficient cause under rule 63(3) and had already been considered and dismissed in Civil Application No. 342/01 of 2018. The application was dismissed. Cases referred to: (i) Rosemary Stella Chambe Jairo v. David Kitundu Jairo, Civil Application No. 517/01 of 2016 (unreported). (ii) Mwanza Director M/S New Refrigeration Co. Ltd v. Mwanza Regional Manager of TANESCO and Another [2006] T.L.R. 329. (iii) Mohamed Iqbal v. Esrom M. Maryogo, Civil Application No. 141/01 of 2017 (unreported). (iv) Phares Wambura and 15 Others v. Tanzania Electric Supply Company Limited, Civil Application No. 186 of 2016 (unreported).

(v) Ignazio Messina v. Willow Investments SPRL, Civil Application No. 21 of 2001, CAT Decision, (unreported). (vi) Lalago Cotton Ginnery and Oil Mills Company Limited v. The Loans and Advances Realization Trust (LART), Civil Application No. 80 of 2002 (unreported). Mr. Matojo Mushumba Cosatta – advocate, for Applicant. Mr. Ayoub Sanga and Mr. Mathew Fuko, both State Attorneys for Respondent.