Cable & Satelite Consultancy Limited vs Mwananchi Group Limited (Civil Application No. 631/01 of 2022) [2024] TZCA 881 (12 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. 3.A.. KAIRO. 3.A. And MGONYA, 3.A.) CIVIL APPLICATION NO. 631/01 OF 2022 CABLE & SATE LITE CONSULTANCY LIMITED ........................... APPLICANT VERSUS MWANANCHI GROUP LIMITED............................ .............. RESPONDENT (Application to strike out a Notice of Appeal from the decision of the High Court of Tanzania, Dar es Salaam Registry) fLuvanda 3.1 dated 29th day of March, 2019 in Civil Case No. 94 of 2017 RULING OF THE COURT &h May & 12t h September, 2024 KAIRO. 3.A.: The applicant in this application seeks to move the Court to issue an order for striking out the notice of appeal lodged by the respondent on 25th April, 2019 and served on the applicant on 6th May, 2019 to challenge the decision of the High Court of Tanzania, Dar es salaam Registry in Civil Case No. 94 of 2017 delivered on 29th March, 2019. The notice of motion was preferred under the provisions of rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). According to

the notice of motion, the ground upon which the application hinges on is that, the respondent has failed to take essential steps towards lodging his intended appeal while the copies of judgment, decree and the proceedings were available by 19th March, 2021. The application is supported by an affidavit sworn by Mr. Peter Kibatala, the applicant's advocate. On the other hand, Sanctus Mtsimbe, a Principal Officer of the respondent, swore an affidavit in reply to resist the application. A brief background which culminated to the institution of this application is that, the applicant sued the respondent at the High Court of Dar es Salaam, claiming among others, payment of TZS. 313,334,700.00 for breach of dealership agreement. The trial court delivered the judgment in the applicant's favour. Aggrieved, the respondent lodged a notice of appeal and wrote a letter to the Registrar requesting for relevant documents for appeal purposes on 24th April, 2019 and served on the applicant on 25th April, 2019. Reminder letters were sent to the Registrar on 25th November, 2020 and 8th November, 2022, being 17 months after the request letter and 2 years after the 1st reminder letter, respectively. Accordingly, the applicant was served with the copies of the said documents.

The respondent, later, applied and was granted an order for stay of execution of the judgment and decree intended to be challenged. After waiting for about forty-three months since the lodging of the notice of appeal without institution of the intended appeal, the applicant on 17th October, 2022 decided to file this application, seeking the Court's order to strike out the notice of appeal filed for the reason alluded to above. As earlier stated, the respondent resisted the application in her affidavit in reply. Basically, the parties are at one as regards the sequential events stated above. However, they parted ways on the reason pertaining to the non-institution of the intendent appeal within time. Whilst the applicant contends that the respondent has failed to take essential steps towards the lodging of the same despite the availability of the relevant documents for appeal purposes, including the certified proceedings, the respondent, on the other hand has refuted the said contention arguing that, the failure was inescapable as she was not yet supplied with the requested documents, despite writing reminder letters to the Registrar. As such, the omission was not caused by lack of diligence. At the hearing of the application, Messrs. Peter Kibatala and

Godwin Nyaisa, both learned counsel, represented the applicant and respondent respectively. Upon being invited to expound the applicant's notice of motion, Mr. Kibatala started by adopting the notice of motion and his affidavit. He submitted that, though there is no dispute on the dates of filing the notice of appeal and that of sending a request letter to the Registrar asking for the relevant documents for appeal purposes, together with the reminder letters, the question is whether the respondent has adhered to the requirements in terms of rule 90 (5) of the Rules timely, to which he answered negatively. Elaborating, the learned counsel submitted that, the respondent has deponed in paragraph 7 of her affidavit that, after writing a letter to the Registrar on 24th April, 2019, the respondent sent a reminder letter on 25th November, 2020, and served it on the applicant on 7th December, 2020, that is, about 15 months after the expiry of the stipulated 90 days within which to be notified by the Registrar of the High Court on the readiness of the requested documents and 14 days within which the respondent was required to make follow up steps with the Registrar of the High Court if no notification was received. He went on submitting that, the respondents assertion that she has exhausted

what she was supposed to do in terms of rule 90 (5) of the Rules, is not correct as the action was belatedly taken, having been taken beyond the 14 days given for follow-ups after the expiry of 90 days. Mr. Kibatala further submitted that, the applicant does not dispute that the Registrar has duties to fulfil as well under the said rule. However, he contended that, the respondent's duty is much heavier, being the prospective appellant. According to him, writing a reminder letter to the Registrar 15 months later and another one on 8th November, 2022, being two years after the first reminder, does not exhibit prudence on the part of the respondent and in fact, goes against the finality of litigation principle. Worse still, he added, the second reminder letter was written after the filing of this application by the applicant. Dismissing the respondent's assertion in paragraph 8 (ii) of the affidavit regarding the physical follow-ups made by the respondent, Mr. Kibatala submitted that, the same falls short of details; like how many times and on which dates, whom did the respondent met and above all, there is no affidavit deponed by the person whom the respondent met so as to support the assertion. It was his contention that, the respondent relaxed after getting the stay of execution and

she is now hiding in a blanket of unproven physical follow-ups. Mr. Kibatala went on to submit that, on 17th March, 2021, the applicant wrote a letter to the Registrar requesting for the certified copies of the proceedings and he was supplied with the same. That, going through the copy, she noted that, the same was certified on 19th March, 2021, that is about 20 months before filing of this application, which according to him, solidifies his contention that, the respondent's inaction on the pretext that she was waiting for the Registrar's notification is unjustifiable. He cited the case of Monica Makungu vs The Director of Education Department, Archdiocese of Mwanza, Civil Application No. 31/08 of 2021 (unreported) to back up his argument. Extending his submission, Mr. Kibatala asserted that, since the requested documents were ready, the respondent would have at least lodged a record of appeal and later prayed to file a supplementary record if the need would have arisen. In conclusion, the learned counsel implored the Court to grant the prayer sought in this application with costs. In reply, Mr. Nyaisa started by praying to adopt the contents of the affidavit in reply filed on 27th January, 2023 and emphatically 6

submitted that the respondent has exhausted all what he was required to do under rule 90 (5) of the Rules. He contended that, having written the letter requesting for the relevant documents for appeal purposes, the Registrar was obliged to notify the respondent on the readiness of the requested documents for him to go and collect the same. He submitted that, the respondent's comprehension of rule 90 (5) of the Rules is that, the 14 days stated therein is the time within which to collect the documents requested after the Registrar has notified the prospective appellant on the readiness of the same. He further contended that, there is no time limit stipulated within which the intending appellant is required to write a reminder letter to the Registrar on the requested documents as argued by Mr. Kibatala. It was his firm contention also that, the 14 days has no relationship with the reminder letter. He fortified his submission by referring the Court to its earlier decision of Kaemba Katumbu vs Shule ya Sekondari Mwilamvya, Civil Application No. 523 of 2020 (unreported). He argued further that, the Court in the cited case further observed that, in order, to condemn the respondent for inaction, a notification on the readiness of the documents from the Registrar has to be there. It was the respondent's further contention that, once an 7

intending appellant makes a written request to the Registrar, he is not obligated to make any follow-up. Buttressing her position, the learned counsel referred us to the case of Dar Express Co. Ltd vs Mathew Paulo Mbaruku, Civil Appeal No. 132 of 2021 (unreported). Nevertheless, he contended, the respondent made a physical follow- up and wrote reminder letters to the Registrar on 25th November, 2020 and 8th November, 2022 respectively, as stated in the affidavit in reply. Responding to Mr. Kibatala's blame to the respondent for failure to go and to collect the proceedings which according to him were certified since 19th March, 2021, Mr. Nyaisa submitted that the documents requested included the tendered exhibits as per rule 96 (1) (f) of the Rules which were not yet ready and that is why the respondent specifically requested for them as deponed in paragraph 7 and 10 of the affidavit in reply. As regards Mr. Kibatala's suggestion that the respondent could have filed the record of appeal using the available documents and later pray to file supplementary record, it was the contention of Mr. Nyaisa that, without a letter from the Registrar informing the respondent that the documents were ready for collection, doing that

would have amounted to snitching them and the respondent would be asked where did she get them. In the circumstances, Mr. Kibatala's contention that the respondent was not diligent enough was incorrect; charged the respondent's advocate. Distinguishing the cited case of Monica Makungu (supra), Mr. Nyaisa submitted that, the cited case is silent as regards sending a reminder letter to the Registrar while in the case at hand, the respondent, continued to send other reminder letters even after the filing of this application, being the continuation of the previous one written on 25th November, 2020. As such, the applicant's assertion that, the said letter was sent following the filing of this application was incorrect. Winding up, he submitted that the respondent has taken essential steps required in law and prayed the Court to find the application unwarranted and dismiss it accordingly with costs. In his rejoinder, the applicant refuted the stated distinguishing aspect in Monica Makungu's case (supra) that nowhere it was stated that, the respondent wrote a reminder letter. He argued that, the Court at page 10 of the said decision has discussed the said issue. He further disputed the respondent's submission that the case of Dar Express Co. Ltd (supra) observed that, the respondent has no

duty to make follow-up with the Registrar after writing a letter requesting for the documents. Instead, the opposite is the case as the Court therein noted that, the intended appellant was supplied with the requested documents after making follow-ups. As regards the absence of time limitation to write a reminder letter as stated to have been observed in the case of Kaemba Katumbu (supra), Mr. Kibataia invited the Court to consider the prudence of the respondent in relation to the time taken to write the reminder letter, imploring it to invoke the reasonability test on that aspect. He reiterated his prayer to the Court to rule out that, the respondent has not complied with rule 90 (5) of the Rules, as such, failed to take essential steps and strike out the notice of appeal, with costs. Having respectfully considered the rival submissions by the learned counsel for the parties, the notice of motion and the parties' affidavits, the issue for this Court's determination is whether the application is meritorious to warrant the grant of the same. There is no dispute that, the decision to be challenged was delivered on 29th March, 2019 and the notice of appeal was lodged timely on 25th April, 2019. It is further not in dispute that the 10

respondent requested for copies of relevant documents for appeal purpose on 24th April, 2019 and served on the respondent on 25th April, 2019, which was within the time stipulated by law. It is our firm conviction that, up to this juncture, the respondent had taken the proper essential steps required towards lodging the intended appeal. Parties are also not in dispute that 90 days within which to get notification from the Registrar on the readiness of the documents requested for appeal purpose lapsed without such a notice. In our view, this is where the controversy lies. We are thus invited to answer a question what obligation the intending appellant has under rule 90 (1) of the Rules after writing a letter requesting for appeal documents from the Registrar under rule 90 (1). It is the proposition of the respondent that, rule 90 (5) of the Rules requires the intending appellant to go and collect the documents within 14 days upon being notified by the Registrar regarding the readiness of the same. It was his argument that, the said rule neither obliges the intending appellant to make follow-ups once the he makes a written request, nor does it provide a time limit within which an intending appellant is required to write a reminder letter to the Registrar. In other words, he is supposed to be home and dry until ii

notified. Mr. Kibatala, on the other hand is of the view that, the Registrar has a duty within 90 days to prepare appeal documents and notify the party appealing to go and collect the requested documents after being notified of its readiness. If not so notified, he has to take some steps within 14 days after the expiry of the said 90 days. According to Mr. Kibatala, such steps entail making a physical follow-up or writing a reminder letter to the Registrar within 14 days and according to him, the respondent did not do that. Instead, the reminder letter was written after the lapse of 15 months. For easy appreciation of the discussion to follow, we find it apposite to reproduce Rule 90 (5) which is in contention. It states: "(5) Subject to the provisions of sub ruie (1), the Registrar shail ensure that a copy of the proceedings is ready for deiivery within ninety (90) days from the date the appeiiant requested for such copy and the appellant shall take steps to collect copy upon being informed by the Registrar to do so/ or within fourteen (14) days after the expiry of the ninety (90) days". [emphasis added] 12

Flowing from the above provision, we have observed that both the Registrar and the intending appellants have separate obligations. However we wish to point out that, we shall concentrate on the intending applicant's obligation, being a point of contention in this application. It is our settled view that, the cited provision places an obligation to the intending appellant who has requested for the relevant documents for appeal purpose and who, upon expiry of ninety days after the request was made without being informed by the Registrar that the requested documents are ready for collection; to approach the Registrar asking to be supplied with the documents. It is noteworthy that the intending appellant should do so within fourteen days after the expiry of the ninety days. In other words, there are two steps to be taken and, in our view, both obligate the intending appellant to approach the Registrar requesting to be supplied by the documents; first step; where the appellant receives the readiness notification within 90 days, he has to approach the Registrar to immediately collect the requested documents, second step; where the appellant receives no notification, he has to approach the Registrar within 14 days after the lapse of the 90 days so as to be supplied with the requested documents.

We are so saying because the preceding words in rule 90 (5) of the Rules entail the action of going physically to the Registrar to collect the documents once notified. If 90 days lapses without notification from the Registrar, the intending appellant has to take action by going to the Registrar within the 14 days after the expiry of 90 days to collect the documents. In the matter at hand, the affidavit in reply only indicates that the respondent was not notified by the Registrar to collect the appeal documents within the 90 days. But it is silent as regards steps taken within 14 days after receiving no notification from the registrar and the 90 days stipulated have expired. We are aware that the respondent has stated that, he wrote a reminder letter to the Registrar on 25th November, 2020, which according to him is the step taken after getting no notification from the Registrar as required under Rule 90 (5). But still, we wish to state that, even if the writing of reminder letter would have been mandatory under the provision, still, the letter written after the lapse of about 17 months from the request date is beyond 14 days after expiry of 90 days. As such, it would not have saved the situation. Basing on his submission, Mr. Nyaisa's interpretation of the rule is 14

that, the respondent is supposed to wait for notification on the readiness of the documents from the Registrar. After getting the notice, then the intending appellant is obliged to go and collect the documents within 14 days. In other words, he has no other obligation to discharge after requesting the documents, but to wait for the Registrar's notification. According to him, the stated position is supported by our previous decision of Dar Express Co. Ltd (supra). With much respect, we think the learned advocate has misconstrued it. The Court, in the cited case categorically noted that, the respondent therein made some follow-ups which resulted to the supply of the requested documents. In Daudi Joseph Mapuga & 417 Others vs Tanzania Hotels Investment Limited and Others, Civil Appeal No. 462/18 of 2018 and Edmund Msangi vs The Guardian Limited, Labour Revision No. 838 of 2019 (both unreported) the Court took similar stance when interpreting rule 90 (5) of the Rules which the Court did not accept the respondent's proposition that, having lodged the letter requesting for documents, they remain home and dry. Gone are the days when intending appellants dawdled after lodging notices of appeal. As regards the case of Kaemba Katumbu, we are aware that the case ruled out that, there is no time limit within which to write a 15

reminder letter, to which we still maintain the said position. Nevertheless, it is expected that, in case of making a physical follow- up and by writing a reminder letter, then, the action should be taken within reasonable time before the lapse of 104 days from the date of the letter requesting for appeal documents, that is, within 14 days after waiting for 90 days without the notification from the Registrar. In the case at hand, the said reminder letter was written 466 days or 15 months after the lapse of 104 days, which by any standard, we consider to be inordinate. On the other hand, it is the proposition of Mr. Kibatala that, the provision requires that, upon being informed by the Registrar on the readiness of the document for collection, the intending appellant has to go and collect them, and if not so informed, he has to take some steps to follow-up within 14 days after the expiry of 90 days from the request date, to which we concur with. As we earlier alluded to, follow-up entails going physically to take the documents. We wish to point out that, we are alive to our stance in Monica Makungu's case as regards following-up with the Registrar within 14 days. We hasten to add that, according to rule 90 (5) the follow-up entails going physically to the Registrar to collect the requested documents within 14 days after expiry 16

of 90 days without notification from the Registrar. In fine, this application is meritorious as the respondent has failed to take essential steps within the prescribed time as above explained. Consequently, in terms of Rule 89 (2) of the Rules, we strike out the respondent's notice of appeal lodged on 25th April, 2019, with costs. It is so ordered. DATED at DAR ES SALAAM this 10th day of September, 2024. S. A. LILA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL This Ruling delivered on 12th day of September, 2024 in the presence of Ms. Caster Lufungulo, learned Counsel for the Respondent and also holding brief for Mr. Peter Kibataia, learned Counsel for the Applicant, is hereby certified as a true copy of original. DEPUTY REGISTRAR COURT OF APPEAL 17