Zakaria Oggo vs Ashura Abdul & Another (Civil Application No. 89/08 of 2017) [2018] TZCA 599 (10 October 2018)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWARIJA. 3.A.. MUGASHA. J.A.. And NDIKA. J.A.) CIVIL APPLICATION NO. 89/08 OF 2017 ZAKARIA OGGO....................................................................... APPLICANT VERSUS ASHURA ABDUL................................................................. 1 st RESPONDENT MOHAMED SWEDI.............................................................2 nd RESPONDENT (Application from the decision of the High Court of Tanzania at Mwanza) (Sumgri, J.) Dated 8thday of December, 2014 in Land Appeal No. 43 of 2012 RULING OF THE COURT 8th & 10th October, 2018. MUGASHA, J.A:. The applicant has brought this application under Rule 89 (2) of Tanzania Court of Appeal Rules, 2009, (the Rules) seeking to have the notice of appeal by the respondents struck out on the grounds stated in the Notice of Motion as follows:-

1. That some essential steps in the proceedings have not been taken within the prescribed time.
2. That, costs of and incidental to this Application abide the results of this Application.

The application is supported by the affidavit sworn by the applicant whereby in paragraphs 6 - 7 he has deposed as follows:- " That\ up to date of this application, the respondents have not lodged an appeal to the Court of Appeal and that respondents have not served the applicant with a record of appeal. That, in the circumstances it is just and fair that the Notice of Appeal be struck out as the respondents have failed to take essential steps to institute the intended appeal." To buttress his arguments, the applicant filed written submissions in accordance with Rule 106 (1) of the Rules. The application has been opposed through the affidavit in reply sworn by the 1s t respondent who has deposed to the effect that: One, the record of appeal was neither compiled nor served on the applicant within time because the Deputy Registrar had not timely supplied the respondents with the proper proceedings of the High Court. Two, after being supplied with the requisite proper proceedings, the respondents

compiled the record of appeal and served it on the applicant alongside with the Memorandum of Appeal. In order to appreciate what precipitated the present application, the background as it can be gathered from the affidavital information is briefly as follows: The applicant successfully sued the respondents before the District Land and Housing Tribunal of Mwanza claiming to be a lawful owner of a house located at Mwembe giza area within the city of Mwanza. Aggrieved, the respondents unsuccessfully appealed to the High Court whereby their appeal was dismissed on 8th December, 2014. Still discontented, on 22n d December, 2014 the respondents lodged a notice of appeal to the Court. They also applied for leave to appeal which was obtained on 22/9/2015. At the hearing, the applicant and the 1s t respondent were present, both unrepresented. The 2n d respondent who was reported to be ill did not enter appearance. However, he had indicated in the summons to have mandated the 1s t respondent to proceed with the hearing of the application. The applicant adopted the written submissions filed on 28/11/2016. Apart from echoing what is stated in the affidavit in

support, the applicant submitted that, to date the respondents have not served him with the record of appeal. As such, he urged us to strike out the notice of appeal. When probed by the Court if he was served with the record of appeal, he claimed to have been served with the same after filing the present application which he found not desirable and on that account, he maintained that the notice of appeal deserves to be struck out with costs on account of respondents' failure to take essential steps to pursue their appeal. In reply, the 1s t respondent adopted her affidavit in reply. She added that, their respective appeal was lodged on 13/2/2017 and served on the applicant on 15/7/2017. In that regard, she prayed that the notice of appeal should not be struck out because the respondents have already taken essential steps to pursue an appeal. She thus urged us to dismiss the application with costs. In rejoinder, the applicant reiterated what he submitted earlier on. After a careful consideration of the submissions of parties, the point for our determination is whether the respondents have not taken essential steps to pursue an appeal in terms of Rule 89(2) of the Rules upon which the application is predicated which provides as follows:

"(2) Subject to the provisions of sub rule (1), a respondent or other person on whom a notice of appeal has 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 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." Moreover, Rule 90 (1) of the Rules provides as follows:- "90. -(1) Subject to the provisions of Rule 128, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged with - (a) a memorandum of appeal in quintuplicate; (b) the record o f appeal in quintuplicate; (c) security for the costs of the appeal, save that where an application for a copy of the proceedings in the High Court has been made within

thirty days o f the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery of that copy to the appellant." While the applicant argued that the respondents either delayed or did not take essential steps to pursue their appeal, the respondents strongly argued that, they have all along taken essential steps pursuing their appeal which they have already filed. It is settled law that, where the intending appellant does not take essential steps to pursue an appeal, the respondent may apply to the Court to have the notice of appeal struck out for failure to take essential steps. The Court discussed on what constitutes failure to take essential steps to pursue an appeal, in TRANSCONTINENTAL FORWARDERS LIMITED VS TANGANYIKA MOTORS LIMITED [1997] TLR 328 having said:- 6

" ...failure to take essential steps to institute the appeal could either be procedural or evidential. An example could include omission to apply for leave to appeal or a certificate on a point of law, when one was required, or failure to collect copies of proceedings, judgment or order necessary for institution of an appeal or failure to lodge an appeal within prescribed time, where the documents are ready." (See INTERNATIONAL COMMERCIAL BANK (T) LIMITED VS AGIL ISLAM and TWO o th e r s , Civil Application No 175 of 2008 (unreported)). Furthermore, in fo r e ig n m ission b o a rd o f th e s o u th e r n b a p tis t CONVENTION VS ALEXANDER PANOMARIS ([1984] TLR 146) the Court said:- "Since the inordinate delay in furnishing a certified copy of the proceedings of the High Court cannot be blamed on the respondent no cause of action existed on his part to bar him from instituting and prosecuting his appeal."

In the present matter, having carefully revisited the affidavits and submissions filed by the applicant, we are of considered view that some essential steps were taken by the respondents in pursuing their appeal. We say so because the documents accompanying the 1s t respondent's affidavit in reply indicate as follows: One, in the 1s t respondent's letter dated 20/9/2016, she informed the Deputy Registrar on the predicament to compile the record of appeal because she was supplied with erroneous decree not bearing the date and name of the presiding judge. As such, the 1s t respondent requested to be supplied with a valid record and another Certificate of Delay which excludes days for the preparation of the proceedings. Two, in reply thereto on 13/12/2016 the Deputy Registrar wrote to the 1s t respondent informing her that, the corrected version of the certified proceedings and the Certificate of Delay were ready for collection. Three, the Certificate of Delay was issued on 13/12/2016. Thus, the respondents could not be blamed for the inordinate delay in furnishing the relevant documents. Moreover, looking at the chronology of steps taken by the respondents from 20/9/2016, it is evidently clear that they did embark on essential steps to pursue an appeal before the filing of the present 8

application on 31/10/2016. This is cemented by the fact that, all the enquiries made by the 1s t respondent to the Registrar were copied to the applicant in order to make him aware of what hindered the respondents to file their appeal within time as opposed to what is contained in the applicant's assertions in the notice of motion, the affidavit in support and written submissions. As such, the applicant cannot be heard to claim that, the respondents have not taken essential steps to pursue an appeal or rather rushed to take such steps after the present application was filed. Indeed, it is the applicant who after becoming aware of the respondents' predicament brought the present application on 31/10/2016 which we find to be ill conceived. Therefore, as it was clearly stated by the Court in TRANSCONTINENTAL FORWARDERS LIMITED VS TANGANYIKA MOTORS LIMITED {supra), once the respondent has shown that he had applied to the Registrar for a copy of proceedings sought to be appealed against, and he had not been furnished with any within specified time, he had complied with the Rules. It is evident that from the correspondences between the Registrar of the High Court and the 1s t respondent that not all the documents were furnished timely and some

of the documents supplied were problematic. In a nutshell, the respondents have taken essential steps to pursue an appeal. Besides, since they have already lodged an appeal and served it on the applicant such move renders the present application overtaken by events. All said and done, we find the application not merited at all and we hereby dismiss it with costs. DATED at MWANZA this 9th day of October, 2018. A. G. MWARIJA JUSTICE OF APPEAL S. E. A. MUGASHA JUSITCE OF APPEAL G. A. M. NDIKA JUSITCE OF APPEAL I certify that this is a true copy of the original. S. J. KAINDA DEPUTY REGISTRAR COURT OF APPEAL 10