Brian Lyimo and 25 Others vs Registered Trustees of Umoja wa Wanawake Tanzania (UWT) and Another (Civil Application No. 153/02 of 2024) [2024] TZCA 1121 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: WAMBALI. J.A.. KENTE. J.A. And MGONYA. J.A.T CIVIL APPLICATION NO. 153/02 OF 2024 BRIAN LYIMO AND 25 OTHERS ....... ................................... .... APPLICANTS VERSUS REGISTERED TRUSTEES OF UMOJA WA WANAWAKE TANZANIA (UWT) ....... .............................. 1 st RESPONDENT NUTMEG AUCTIONEERS (NMA AUCTIONEERS) ..................2 nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) fMwaimu, J J Dated the 23rd day of October, 2015 in Land Case No. 15 of 2012 RULING OF THE COURT 6th & 19th November, 2024 MGONYA. J.A.: Brian Lyimo and 25 others, the applicants, lodged the present application by a notice of motion taken under rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), asking the Court to strike out a Notice of Appeal lodged by the respondents, Registered Trustees of Umoja wa Wanawake Tanzania (U.W.T.) and Nutmeg Auctioneers (NMA Auctioneers) appealing against the decision of the High Court at Arusha delivered on 23rd October, 2015 in Land Case No. 15 of 2012.

The notice of motion is supported by the affidavit deposed by Ms. Sara Severine Lawena, the applicants' advocate. The application is contested by the respondents through an affidavit in reply deposed by Mr. Edmund Rweyemamu Ngemela, the respondents' advocate. At the hearing of the application before us, Ms. Sara Severine Lawena, learned advocate appeared for the applicants, whereas Mr. Edmund Rweyemamu Ngemela and Mr. Fabian Donatus, learned advocates, appeared for the respondents. The reason of applicants' prayer for striking out the notice of appeal is premised on the argument that, the respondents have not taken essential steps to lodge the appeal to the Court against the decision of the High Court since the notice of appeal was lodged on 17th October, 2022. Submitting in support of the ground for striking out of the notice of appeal, Ms. Lawena argued that, despite the respondents' failure to lodge the appeal within sixty (60) days as per rule 90 (1) of the Rules, they have not written a letter requesting for a certified copy of proceedings to the Registrar of the High Court. Ms. Lawena argued further that, the failure of the respondents contravenes the provisions of rule 90 (1) of the Rules, and therefore they are not entitled to rely on the provisions of rule 90 (3) of the Rules to deserve a certificate of delay.

The learned advocate for the applicants contended further that, though the affidavit in reply contains a letter dated 3/3/2021, which was not served on the applicants, it has no any relationship with the essential steps taken from 17/10/2022 when the respondents lodged the notice of appeal. She added that, apart from the irrelevant letter, the affidavit in reply of the respondents deposed by their counsel, contains nothing with regard to the steps taken by the respondents towards lodging the appeal which would help the Court to determine the application in their favour. In the circumstances, Ms. Lawena urged the Court to strike out the notice of appeal lodged by the respondents on 17/10/2022 with costs. In response, Mr. Ngemela strongly disputed the applicants' allegations and urged the Court to consider the affidavit in reply lodged by the respondents which shows the essential steps taken in preparation of lodging the intended appeal. He submitted that, though the respondents lodged the notice of appeal on 17/10/2022, before that date, they had written a letter to the Deputy Registrar of the High Court requesting a certified copy of the proceedings and served it to the applicants. Further that, on various occasions, they have been writing several letters to the respective office reminding the Deputy Registrar of the High Court to

supply the respondents with the requested proceedings to enable them lodge the intended appeal. To support the contention, Mr. Ngemela referred the Court to the letter dated 3/3/2021 addressed to the Deputy Registrar of the High Court of Tanzania at Arusha which is annexed to the respondents' affidavit in reply. He insisted that, by writing the said letter, the respondents have duly taken essential steps towards lodging the intended appeal. In the circumstances, the learned counsel pressed the Court to find that, despite the efforts made by the respondents, nothing has been supplied by the Deputy Registrar of the High Court. In conclusion, he urged the Court to dismiss the application with costs. In rejoinder, Ms. Lawena stated that there is no evidence even in the affidavit in reply showing that the respondents have taken steps since they lodged the notice of appeal. She thus reiterated her prayer that the application be allowed. Having heard the parties' submissions for and against the striking out the notice of appeal, the crucial issue for determination is whether the respondents have taken essential steps to institute the intended appeal.

We note that, in contesting the application, the respondents have strongly relied in the affidavit in reply, particularly paragraph 3 to show that they have taken essential steps. The said paragraph states: "That the contents o f paragraph 4 o f the deponent affidavit are strongly disputed and the Applicants are put into strict proof o f the content That, the Respondents has (sic) fifed notice o f appeal to the Court o f Appeal o f Tanzania, previously wrote a letter and served the Applicant at various occasions has been writing to the court to remind to be supplied with the necessary documents for appeal purposes. See annexture marked 'A ' to form part o f this affidavit" According to the respondents' counsel, the said paragraph intends to answer the applicants' complaint that they have not taken steps to institute the intended appeal. He thus emphasized that the respondents wrote a letter requesting for a certified copy of proceedings and sen/ed it to the applicants. It is noted that, apart from the letter lacking the attached reference to any of the initial letter(s) allegedly written before the notice of appeal was lodged, there is nothing showing that after they have lodged the notice of appeal, the respondents wrote a letter to the Deputy Registrar of the High Court, and that they are still waiting for the response on the

requested certified copy of proceedings. In any case, the respondents are required to show that the delay in lodging the appeal emanates from the Registry of the High Court which has been an obstacle. Therefore, we find Mr. Ngemela's submission untenable because the respondents have not categorically shown the steps taken to institute the intended appeal since the notice of appeal was lodged on 17/10/2022. In this regard, we are settled that, the respondents cannot rely on the attached letter which is not related to the steps taken after 17/10/2022. In the case of Mwanaasha Seheya v. Tanzania Posts Corporation, Civil Appeal No. 37 of 2003 (unreported), the Court stated: "...an appeal must be instituted within sixty (60) days o f the date when the notice o f appeal was lodged unless the exception under sub-rule (1) applies...he must have sent a copy o f such application to the respondent. Under the circumstances, the appellant was not entitled to rely on the exception." It follows that, as the respondents have failed to demonstrate the steps taken towards instituting the intended appeal since the notice of appeal was lodged on 17/10/2022, they cannot contest the fact that they have failed to lodge the appeal within 60 days as required by rule 90 (1) of the Rules.

In Olivia Kisinja Ndete v. Hilda Mtinga, Civil Application No. 4 of 2011 (unreported), the Court stated that: "The law is now settled, upon lodging a Notice o f Appeal, the intending appellant must not sit back but is required to move the process forward by taking essential steps that have been clearly outlined by the Court o f Appeal Rules. The applicant was entitled to move the Court under Rule 89 (2) to strike out a notice o f appeal where no essentiai steps have been taken beyond that notice / ' We hold the same position in this application. The applicants have properly moved the Court for an order striking out the notice of appeal on the ground that essential steps have not been taken by the respondents. We have no hesitation to conclude that there is no proof that the respondents requested for a certified copy of proceedings of the High Court for purpose of lodging the intended appeal soon after the decision was made or after the notice of appeal was lodged on 17/10/2022. Moreso, even if it is assumed that, such request was made, there is no indication that the applicants were served by the respondents with such letter. For this stance, see the case of Martin D. Kumalija & 117 Others v. Iron and Steel Ltd (Civil Application 70 of 2018) [2019] TZCA 542 (27 February 2019, TanzLII).

All said, we find merit in this application, which we accordingly allow. Consequently, in terms of rule 89 (2) of the Rules, we strike out the notice of appeal filed by the respondents on 17th October, 2022. We further order that the applicants deserve costs. DATED at DAR ES SALAAM this 18th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 19th day of November, 2024 via video conference from the High Court of Arusha in the presence of Ms. Sara Severine Lawena, learned counsel for the Applicant also holding brief of Mr. Edmund Rweyemamu Ngemela for the Respondent, is hereby certified as a true copy of the original. z \ W. A. HAMZA jiE P U TY REGISTRAR ^ v V COURT OF APPEAL