Martha Kaaya Harvey vs Richard Anthony Ghaui and Another (Civil Application No. 176/17 of 2023) [2024] TZCA 1129 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA, J.A., FIKIRINI. J.A., And MLACHA. J.A.'l CIVIL APPLICATION NO. 176/17 OF 2023 MARTHA KAAYA HARVEY.......................................................APPLICANT VERSUS RICHARD ANTHONY GHAUI AND NICOLA LOUISE COX GHAUI (Adminstrators of the Estate of the late HELLEN MARSHALL) ....... . .......................... RESPONDENT (An Application for an order that the Notice of Appeal filed in respect of the decision the High Court of Tanzania (Land Division) at Dar es Salaam) (Mutunqi, 3.) dated the 14th day of September, 2015 in Land Application No. 218 of 2015 RULING OF THE COURT 5th & 19th November, 2024 MLACHA, 3.A.: By way of notice of motion made under Rule 48 (1) and 91(a) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant, Martha Kaaya Harvey, filed an application against the respondents, Richard Anthony Ghaui and Nicola Louise Cox Ghaui (Administrators of the estate of the late Hellen Marshall), seeking an order that the notice of appeal filed against the decision of the High Court (Land Division) at

Dar es Salaam (the High Court), made in Miscellaneous Land Application No. 218 of 2018 be deemed to be withdrawn for failure to institute an appeal within the prescribed time. The application is supported by an affidavit of Martha Kaaya Harvey, the applicant herein. Briefly stated, the factual background may be presented as follows: The applicant was a defendant in Land Case No. 58 of 2005 of the High Court (Land Division) at Dar es Salaam which abated following the death of Hellen Marshal who was the plaintiff. The respondents who are administrators of the estate of the late Hellen filled Miscellaneous Land Application No.2018 of 2015 for orders of extension of time to set aside the abatement. The application was dismissed. Aggrieved, they lodged a notice of appeal on 25th September, 2015 to challenge the decision. The applicant's case is that the respondents have taken no step to lodge the appeal despite the fact that they were notified by the Deputy Registrar on 8th December, 2016 to collect documents for appeal purposes. They are moving the Court to find that the notice of appeal is deemed to have been withdrawn under rule 91(a) of the Rules. The respondents deny to receive the letter of the Deputy Registrar, annexture A6 to the affidavit of the applicant. Based on their reminder letters dated 1st November, 2016; 12th May, 2017; 3rd July, 2018; 13th August, 2018

and 13th September, 2018; they stated that they are yet to be supplied with the necessary documents for appeal purposes. They also stand as proof that they have taken the necessary steps in the appeal. Mr. Roman Selasini Lamwai and Ms. Mary Masumbuko Lamwai, learned advocates, appeared for the applicant whereas the respondents were represented by Mr. Gaspar Nyika, also learned advocate. The learned counsels filed written submissions in terms of rule 106(1) of the Rules which they adopted during submissions. On taking the floor, Mr. Lamwai contended that the controversy in the matter lay on the letter of the Deputy Registrar, dated 8th December, 2016, annexture A6 addressed to the respondents. He contended that the letter informed the respondent that the documents were ready for appeal purposes but they could not collect them. They instead kept on writing reminder letters to demand the same. He contended further that, if the respondents had exercised some due diligence and perused the court records, they could find that the documents were ready for collection way back on 8th December, 2016 when the letter was written. He held them to be negligent and urged the Court to make an order that the notice of appeal is deemed to have been withdrawn in terms of rule 91(a) of the Rules.

While accepting that the controversy lay around the letter of the Deputy registrar, Mr. Nyika maintained that the letter did not reach the respondents that is the reason why they kept on writing reminders, He contended that the existence of reminder letters is evidence of taking essential steps in the appeal within the meaning of the law. He went on to contend that the notice of appeal should not be deemed withdrawn because they could not lodge the appeal without the exhibits. He urged us to dismiss the application. We had time to peruse the records and consider the submissions of the parties. We think the issue before the Court is on a narrow point which should not detain us. Rule 91(a) of the Rules reads as under; "91. Where a party who has lodged a notice o f appeal fails to institute an appeal within the appointed time; a) He shall be deemed to have withdrawn his notice o f appeal and shall, unless the Court orders otherwise, be liable to pay the costs o f any persons on whom the notice of appeal was served arising from that failure to institute the appeal." [Emphasis supplied]

Rule 91 (a) of the Rules operate under two conditions; one, the applicant must have failed to institute the appeal within the prescribed time, and two, the respondent must have been served with a notice of appeal. If the respondent is served with the notice of appeal and the appellant has failed to file the appeal within sixty (60) days, in a situation not excepted under the proviso to rule 90 (1) and (2) of the Rules, the notice of appeal becomes purposeless and lifeless. Unless its existence is extended, it must be deemed to be withdrawn. See our decision in Ramadhani Maabadi and Another v. Maka Serafini, Civil Application No. 12 of 2015. There is no doubt that the notice of appeal, annexture A3 was lodged on 25th September, 2015 and served to the respondents on 1s t October, 2015. No appeal has been filed. The complaint is that, the respondents were supplied with the necessary documents for appeal purposes but have not filed the appeal todate. The applicant based his case in the letter by the Deputy registrar as proof that the respondents were supplied with the documents for appeal purposes. The respondents contend that they did not receive the letter of the Deputy Registrar. They are relying on annexture A4, the reminder letters, to build a defence that they did not receive the documents.

Looking through the arguments advanced by the parties, we note that there is no dispute that the Deputy Registrar wrote the letter on 8th December, 2016 calling the respondents to collect the documents for appeal purposes. The issue is whether it reached the addressee. The respondents deny this aspect. They contend that they just saw a copy of it annexed to the affidavit of the applicant. We think this is a matter of evidence and he who allege has a duty to prove under sections 110 and 111 of the Evidence Act, Cap 6, R. E. 2019. See The Attorney General and 2 Others v Eligi Edward Masawe and 104 Others, Civil Appeal No. 86 of 2002 and Akiba Commercial Bank Ltd v Prisca Anyango Raya and Another, Commercial Case No. 4 of 2005. The burden lies on the applicant to prove that the letter of the deputy Registrar reached the respondents. As there is no signature of the respondents or their advocate in annexture A6, or an affidavit of the Court process server or a despatch book, it is difficult to tell if the letter was served on the respondents. The letter is thus a mere document which cannot prove the issue before the Court. It follows that the applicant has failed to establish that the respondents received the letter. Their failure to file the appeal is thus justified. Rule 91 (a) cannot operate against them. 6

In view of the above findings, this application lack legal base upon which to stand. It is dismissed. Given the time involved, now that the respondents are aware that the documents are ready for collection, in terms of Rule 4 (2) (b) of the rules, we direct them to collect them and proceed with the appeal process according to the law. We make no order for costs. It is ordered so. DATED at DAR ES SALAAM this 19th day of November, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 19th day of November, 2024 in the presence of Ms. Anna Assey Stephen, learned counsel for the Applicant and Mr. Libert Rwazo, learned counsel for the Respondent, is hereby certified as a true copy of the original.