Zainabu Kalenga vs Max Hassan Omary (Civil Application No. 553/03 of 2023) [2024] TZCA 1269 (12 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LILA. J.A.. MURUKE. 3.A. And MDEMU, 3.A.1 CIVIL APPLICATION NO. 553/03 OF 2023 ZAINABU KALENGA................................................................ APPLICANT VERSUS MAX HASSAN OMARY....................................................... RESPONDENT (Application from the decision of the High Court of Tanzania at Dodoma) fMansoor, J.1 dated the 9th day of February, 2021 in Matrimonial Appeal No. 8 of 20,20 RULING OF THE COURT 6th & 12th December, 2024 LILA, JA: This is a motion to strike out a notice of appeal lodged by the respondent on 5/8/2022 against the decision of the High Court of Tanzania, Dodoma Registry, in (DC) Matrimonial Appeal No. 8 of 2020. It is predicated under Rule 89(2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is supported by an affidavit sworn by Mussa John Chemu, advocate of the applicant Zainabu Kalenga. The respondent did not file a reply affidavit to contest the application.

From the scanty information availed in the record constituting this application, it is discernable that the parties were wife and husband having contracted an Islamic marriage on 5/11/2010 and are blessed with two issues of marriage namely; Sada Hassan Omary and Hassan Hassan Omary. Upon the marriage life turning sour, the parties parted ways. Discussion on how and why they parted ways is not relevant here but suffice it to say that the High Court confirmed the divorce on appeal. In that decision rendered on 9/2/2021, the High Court granted these orders:- " 1 , The order o f divorce issued by the Matrimonial Court is hereby confirmed. 2. The fiie is remitted back to trial Matrimonial Court for consideration o f the issue o f division o f matrimonial assets as directed herein above. 3. The file is remitted back to the trial Matrimonial Court for determination o f the issue o f the custody o f the children after a thorough report o f the Social Welfare Officer and after interviewing the children who can express their independent opinions. The interest and welfare o f the children must be known and dearly stated when making the decision o f custody o f the two children."

The respondent was aggrieved and successfully sought leave to appeal to this Court and subsequently lodged a notice of appeal on 5/8/2022, the subject of this application. The motion discloses two grounds for seeking the notice of appeal be struck out being one; the respondent has failed to take necessary steps to lodge an appeal and, two; the letter by the respondent to the Registrar of the High Court requesting to be supplied with proceedings and other appeal documents was not served on the applicant. Arguing in support of the application before us, Mr. Leonard Mwanamonga Haule, learned counsel representing the applicant, said that the notice of appeal sought to be struck out was lodged by the respondent on 5/8/2022. He contended that, the respondent was notified by the Registrar of the High Court of the readiness of the requested documents for collection on 26/2/2021 followed by another letter, annexure ZK6, which showed that the respondent was personally served with the requested documents. That notwithstanding, he insisted, the respondent has failed to lodge the intended appeal which is supposed to be lodged within sixty (60) days of the lodgment of the notice of appeal as provided under rule 90(1) of the Rules, which period, reckoned from 5/8/2022, lapsed on 4/10/2022 without an appeal being lodged. To Mr. Haule, this

amounted to failure to take necessary steps to lodge an appeal warranting the notice of appeal to be struck out. In respect of the second ground, Mr. Haule explained that the respondent, until when he was arguing the application, was yet to serve the applicant with a copy of the letter requesting for copies of proceedings and judgment as directed by rule 90(3) of the Rules. This also is failure to take necessary steps to process the appeal, Mr. Haule impressed. Although he admitted that at the time when the letter was written no specific time was set by the Rules to serve a copy of the letter to the other side, he insisted that until the date of hearing this application, which is about two years, the applicant was yet to be served with a copy of such letter. In response, Mr. Ubaidi Hamidu, learned advocate for the respondent, prefaced his submission by readily admitting that he did not file a reply affidavit. Despite being reminded by the Court that, following such failure to file a rely affidavit, he is precluded from controverting facts stated in the supporting affidavit but could address us on matters of law only, he still proceeded to resist the application saying that it has been preferred prematurely as the respondent is still waiting to be supplied with documents he requested from the Registrar of the High Court. He argued

that the respondent applied to be supplied with the copies of proceedings on 25/8/2022 as was rightly explained by Mr. Haule, a copy of which was served on the then applicant's advocate one Mr. Mussa John Chemu on 26/8/2022 and, upon time passing without notification from the Registrar to collect the documents, he wrote a reminder letter on 2/12/22 and a copy of it was received by Mr. Mussa John Chemu on 12/12/2022. On the basis of the stated steps taken, he urged the Court to find the application prematurely lodged insisting that once served with the appeal documents, the respondent will immediately take steps to lodge the appeal. He disagreed with Mr. Haule who argued that after the lodgment of the notice of appeal and writing a letter to the Registrar of the High Court requesting to be supplied with appeal documents, the respondent remained home and dry. Briefly rejoining, Mr. Haule maintained his earlier position that no steps were taken by the respondent to institute an appeal after lodging the notice of appeal and urged the Court, the respondent having not lodged a reply affidavit hence disentitled him to challenge factual matters in the affidavit supporting the application, to disregard the submissions by Mr. Hamidu as they are submissions from the bar.

In our deliberation we shall begin with the statement of law which Mr. Hamidu appears not to be aware of which bar a party who has not filed an affidavit in reply, sometimes referred to as a counter affidavit, from controverting the factual averments in the affidavit supporting an application at the hearing of an application. For clarity of the legal position, this excerpt from the Court's decision in William Getari Kigege vs Equity Bank and Another, Civil Application No. 24/08 of 2019 (unreported), with sufficient lucidity, saves the purpose: - "... It is trite that a party who has not filed an affidavit to contest what has been deposed in an affida vit supporting an application may be entitled to an ora / reply but only on matters o f law; not on matters o f fact. That this is the law has been stated in a number o f our decisions - see: Fransisca Mbakileki v. Tanzania Harbours Corporation, Civil Application No. 71 o f 2002, Finn Von WurdenPetersen and Another v. Arusha District Council, Civil Application No. 562/17 o f 2017 Fweda Mwanajoma and Another v. Republic, Criminal Appeal No. 174 o f 2008 and Jonas Betwei Temba v. Paul Kisamo and Another, Civil Application No. 10 o f 2013 (all unreported). In Finn Von Wurden Petersen (supra), for instance, the Court relied on its previous

decision in Yokobeti Sanga v. Yohana Sanga, Civil Application No. 1 o f 2011 (unreported) to hold: "... it is settled that where the respondent does not lodge an affidavit in reply despite being served, it is taken that he does not dispute the contents o f the applicant's affidavit.... Therefore, the respondent who appears at the hearing without having lodged an affidavit in reply is precluded from challenging matters o f fact, but he can challenge the application on matters o f law . " Frank as he was, Mr. Hamidu, acting professionally, readily admitted that he did not lodge an affidavit in reply. There is, indeed, no such reply affidavit on record. On the authority, he could be heard on matters of law only in challenging the application. Examined carefully, his submissions before us challenged the factual depositions in the affidavit supporting the application. Nothing legal was argued and, again, on the Court's prompting, he came out clearly that he had no any legal issues to raise against the application. With respect to Mr. Hamidu, all that he argued, as Mr. Haule politely argued, are statements from the bar which cannot be considered leaving the application uncontested.

The above notwithstanding, to successfully argue an application of this nature the applicant still has a duty to argue to the satisfaction of the Court that, indeed, the respondent has taken no essential steps to process and lodge an appeal within sixty (60) days after having lodged a notice of appeal or any other time as extended by the Court. We have, therefore, to examine Mr. Haule's submission in that respect. The record accords well with the submissions by Mr. Haule that since 5/8/2022 when the respondent lodged a notice of appeal to date no appeal has been lodged. Rule 90(1) of the Rules requires that an appeal be lodged within sixty (60) days of the lodgement of the notice of appeal which period, as rightly submitted by Mr. Haule, lapsed on 4/10/2022. Going by the Registrar of the High Court's letters annexed as ZL6 to the supporting affidavit which not only informed the respondent that appeal documents were ready for collection but also that such documents were already served on the respondent personally, there is no doubt that the respondent did not lodge an appeal. He slept on his own right. Service of a copy of the letter requesting for copies of documents necessary for appeal on the other party is a necessary requirement under Rule 90(3) of the Rules. Nothing is on record to controvert Mr.

Haule's assertion that, as at the time the application was lodged to the date of hearing, the same was not served on the applicant. The provisions of Rule 89(2) of the Rules mandate the Court to flush out notices of appeal lying in the registry without appeals being lodged timeously. Tine instant case presents an example of such notices of appeal. The Rule is meant to prevent delay tactics deployed by those who lodge notices of appeal and disappear. The Court restated this in Habi Said vs Joha Salum, Civil Application No. 525/11 of 2017 (unreported) citing the case of Amina Aden Ally vs Gavita Mohamed, Civil Application No. 4 of 2009 (unreported) wherein the Court held that: - "It is settled that Rules o f the Court must be respected and adhered to least it leads to miscarriage o f justice. He who comes to Court to prosecute a case or an appeal must see to it that essential steps are taken within time as prescribed by the relevant law. Applying delaying tactics leads to nothing less than causing unnecessary harm to the adverse party." In the event therefore, we grant the application and hereby order that the notice of appeal lodged by the respondent on 5/8/2022 in respect of the High Court decision in (DC) Matrimonial Appeal No. 8 of g

2020 is struck out. Mindful of the fact that the parties were former wife and husband, we make no order for costs hence each party shall bear its own costs. DATED at DODOMA this 12th day of December, 2024. S. A. LILA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 12th day of December 2024 in the presence of Mr. Sadiki Sadiki holding brief for Mr. Leonard Mwanamonga Haule, learned counsel for the Applicant and also holding brief for Mr. Hamidu Ubaidi, learned counsel for the Respondent is hereby certified as a true copy of the original.