Maimuna Rajab Soka vs Tuwaha Samson Muze (Civil Application No. 103/01 of 2021) [2022] TZCA 3099 (14 September 2022)

MAIMUNA RAJAB SOKA VS. TUWAHA SAMSON MUZE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MWAMBEGELE, LEVIRA AND RUMANYIKA JJ.A) CIVIL APPLICATION NO. 103/01 OF 2021 (Application to strike-out a Notice of Appeal) Civil Procedure and Practice- Application- Affidavit- what is the status of the facts in the affidavit mentioning another person in absence of that person affidavit? Civil Procedure and Practice- Appeal- Notice of Appeal- Whether failure to lodge letter requesting documents and serve the respondent amounts to failure to prosecute an appeal? The applicant moved the Court by way of a notice of motion under Rule 89(2) of the Tanzania Court of Appeal Rules, 2009, seeking to strike out the notice of appeal lodged by the respondent on 19th November 2019 on the ground that no appeal lies, or that the respondent has failed to take essential steps to prosecute the intended appeal. The matter arose from a matrimonial dispute in which the District Court of Kinondoni (the trial court) dissolved the parties’ marriage in Matrimonial Cause No. 66 of 2017. Dissatisfied with the trial court’s decision, the respondent appealed to the High Court in Civil Appeal No. 10 of 2019, which was unsuccessful. The applicant contended that, since filing the notice of appeal, the respondent had not taken any further steps to prosecute the appeal in accordance with the law, thereby rendering the appeal incompetent.

Held: (i) The Court held that where an affidavit mentions another person, it will be hearsay unless there is an affidavit of that other person supporting the fact. (ii) Where the intending appellant has lodged notice of appeal and failed to lodge an appeal with sixty days (60) and serve the respondent with a letter requesting documents from the registrar as intimated under Rule 90(1) and 90(3) of the Court of Appeal Rules 2009, this amount to failure to take essential steps to prosecute the intended appeal. Application was granted with no order as to costs. Statutory provision referred to: (i) Court of Appeal Rules, 2009, Rules 90(1), 90(3)