M/S Rahisi General Merchant Ltd. and Another vs Benjamin H. Ndesario t.a Harambee and Another (Civil Application No. 492/05 of 2024) [2024] TZCA 1075 (8 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: MWARIJA, 3.A.. KAIRO, J.A. And FELESHI, J.A.^ CIVIL APPLICATION NO. 492/05 OF 2024 M/S RAHISI GENERAL MERCHANT LTD.,....,.. .......... .... ...........1 st APPLICANT M/S UHURU PEAK SERVICES STATION ...... ...... 2 nd APPLICANT VERSUS BENJAMINI H. NDESARIO T/A HARAMBEE BUS SERVICES/UB40 BUS SERVICES . .......... ............................RESPONDENT (Application from the Judgment and Decree of the High Court of Tanzania, at Moshi) fTwaib, 3 / 1 dated the 13th day of December, 2019 in Civil Case No. 22 of 2016 RULING OF THE COURT 4th & 8th November, 2024 MWARIJA. J.A.: By way of a notice of motion lodged on 3/4/2024, the applicants, M/s. Rahisi General Merchants Ltd. and M/s Uhuru Peak Services Station brought this application seeking an order striking out the notice of appeal filed on 24/12/2019 by the respondent, Benjamin H. Ndesario t/a Harambee Bus Services/UB40 Bus Services. The application, which was brought under inter alia, rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) is supported by an affidavit sworn by Erica Thomas Ndesamburo, the Managing Director of the applicant. The main ground upon which the order

is sought, is the claim by the applicants that the respondent has failed to take essential steps to institute the intended appeal. The respondent opposed the application through an affidavit in reply sworn by Benjamin H. Nderasio, the respondent. He disputed the contention that the respondent has failed to take essential steps, stating that, until the time when this matter was filed, he had a pending application for review before this Court, which arose from the application for extension of time to serve to the applicants, copy of the notice of appeal. At the hearing of the application, the applicants were represented by Mr. Gwakisa Kakusulo Sambo while the respondent was represented by Mr. Emmanuel Anthony, both learned counsel. Submitting in support of the application, Mr. Sambo adopted the contents of the supporting affidavit and urged us to find that, the application has merit. He contended that, the respondent has failed to take essential steps to file the intended appeal after lodgement of the notice of appeal on 24/12/2019. He relied on rule 90 (1) of the Rules which provides that, an appeal must be filed within 60 days of the date of lodging a notice of appeal. Mr. Sambo argued further that, the respondent did not serve the applicant with copies of the notice of appeal and the letter applying for certified copies of proceedings, judgment and decree (the certified copies)

within the prescribed time. As a result, the respondent filed an application applying for extension of time to serve the certified copies and notice of appeal but the Court dismissed both the application and the reference which the respondent preferred against the ruling refusing him extension of time. According to the learned counsel, although the respondent has filed an application for review of the decision which dismissed his application for reference, that application was filed after the applicants had instituted the present application and therefore, the same was filed as an afterthought. He cited the case of Masoud Msabaha Abdalla v. Ally Kondo Mgaiwe (Civil Application No. 498/17 of 2022) [2024] TZCA 101 (14 February) and Elia Marwa v. Inspector General of Police and Another (Civil Application No. 11 of 2012) [2013] TZCA 267 (5 November 2013) to bolster his argument. With regard to the respondent's affidavit in reply, Mr. Sambo contended that, the same does not contain the averment on the essential steps taken by the respondent thus entailing that, he is conceding to have not taken essential steps. He cited the High Court's decision in the case of East African Cables (T) Limited v. Spencon Services Limited/ Misc. Application No.61 of 2016 (unreported) to support his argument In reply to the submissions made by Mr. Sambo in support of the application, the learned counsel for the respondent started by adopting the

contents of the affidavit in reply. He opposed the contention that the respondent has not taken essential steps in the process of instituting the intended appeal. It was Mr. Anthony's argument that, after having instituted the notice of appeal, and after having written a letter to the Registrar of the High Court applying for the certified copies, he did not serve those document to the respondent within the prescribed time. As a result, he applied for extension of time before a single Justice of the Court in Civil Application No.265/05 of 2020 and because he was unsuccessful in that application and subsequent application for reference before the Court that is, Civil Reference No.27 of 2023, he filed an application for review on 12/4/2024, and that application is still pending in Court and cannot thus be an afterthought The learned counsel went on to submit that, the move taken by the respondent amounted to taking essential steps to institute the intended appeal. He cited the cases of Nyachiro Bituro v. Khamis Ndurwe (Civil application No.12/08 of 2016 [2018] T7CA 516 (11 May 2018) and Tobacco Traders Company Ltd v. Ufuluma Ames Ltd and 2 others (Civil Appeal No. 93 of 2016) [2017] TZCA 299 (24 August 2017) to bolster his argument. In rejoinder, Mr, Sambo submitted that, although the respondent has annexed a copy of the letter in which the respondent applied for certified copy of the proceedings, judgment and decree of High Court of Tanzania at

Moshi, in Civil Appeal No.l of 2019, that letter does not show that it was intended to be served on the applicant. Secondly, it was the learned Counsels argument that, in the application for review relied upon by Mr. Anthony, the respondent is not seeking extension of time but a review of the Court's decision. From the submissions of the learned counsel for the parties, the issue for our determination is whether the respondent has taken essential steps to institute the intended appeal. It is not disputed that, after lodgement of the notice of appeal on 24/12/2019, the respondent did not serve a copy thereof to the applicants within the period of 14 days specified under rule 84 (1) of the Rules. It is not disputed further that, following the delay, the respondent applied for extension of time to serve a copy of the notice of appeal and a copy of the letter of application for certified copies and as stated above, was unsuccessful both in the application before the Single Justice and in the Reference before the Court. As a result, he filed the application for review which is still pending in Court. The argument by the learned counsel for the respondent is that the undertaking of those proceedings was intended to enable him institute the intended appeal after complying with rules 84 (1) and 90 (1) of the Rules. In paragraph 8 of the affidavit in reply, the respondent states as follows: ".....there is in the Court o f Appeal o f Tanzania at Moshi pending Civil Application lodged on l? h April 2024 for

this Hon. Court to review its ruling in Civil Reference No.27 o f2023 dated on l& h March 2024 arising from the ruling in Civil Application No.265/05 o f2020 for extension o f time to serve the respondents with the Notice of Appeal dated 2(fh July 2023 before Hon. Single Justice, Mdemu. Annexed hereto and collectively marked Annexeture BCC is a copy of the said pending Civil Application and those two rulings and leave is hereby craved to form part o f this affidavit" [Emphasis added]. From the contents of paragraph 8 of the respondent's affidavit in reply reproduced above, we are, with respect, unable to agree with Mr. Sambo that, the respondent has not explained the essential steps he had taken to institute the intended appeal. We do not also agree that the efforts made by the respondent to be granted extension of time do not amount to taking of essential steps. In the case of Nyachiro Bituro (supra) cited by Mr. Anthony, the Court accepted the respondent's act of seeking extension of time to challenge the decision intended to be appealed against as one of the essential steps in the process of filing an appeal. The Court observed as follows: "We have also managed to see that, the respondent applied for extension o f time which was granted by the High Court on the l$ h February 2016. In so doing\ the respondent complied with one o f the essential steps as

held in Asmin Rashid v. Boko Omari [1997 T.LR.146]" Mr. Sambo had argued that, in the pending application for review, the respondent has not shown that he is seeking extension of time. Again, with respect, we are unable to agree with the learned counsel. In the application, the Court has been moved to "reverse or modify its former decision in Civil Reference No.27 o f 2023 dated lt fh March 2024" His dissatisfaction was the refusal to be granted extension of time to serve the applicants with a copy of the notice of appeal and a copy of the letter of application for the certified copies. In essence therefore, the respondent is still pursuing the prayer by exhausting the available forum provided by the Rules. Finally, on the contention by the learned counsel for the applicants that the application for review was an afterthought because the same was filed after they had instituted this application, we think that fact cannot be interpreted as move to pre-empt this application because, the respondent is entitled, under rule 66 (3) of the Rules, to the period of 60 days from the date of the impugned decision to file an application for review. His application is therefore, competent.

On the basis of the reasons stated above, we are settled in our mind that this application is devoid of merit. In the event, the same is hereby dismissed. Costs to abide the outcome of the pending application for review. DATED at MOSHI this 7t h day of November, 2024. A. G. MWARIJA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Ruling delivered this 8th day of November, 2024 in the presence of Mr. Leonard Satu Mashabara, learned counsel holding brief for Mr. Gwakisa Sambo, learned Counsel for the Applicants and for Mr. Emmanuel Anthony learned counsel for the Respondent via video facilities, is hereby certified as a true copy of the original.