Teddy Syprian Mallya vs AFC Tanzania M.F.C Limited (Civil Application No. 51/18 of 2023) [2024] TZCA 826 (23 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANDAMBO. J.A.. MAIGE. J.A. And KHAMIS, 3.A.) CIVIL APPLICATION NO. 51/18 OF 2023 TEDDY SYPRIAN MALLYA................................................................... APPLICANT VERSUS EFC TANZANIA M.F.C LIMITED .................. ................................... RESPONDENT (Application for an order to strike out notice of the appeal originated from the decision of High Court of Tanzania, Labour Division at Dar es Salaam] fAboud. 3 / > dated 11th day of September, 2020 in Labour Revision No. 952 of 2018 RULING OF THE COURT 2(Jh & 2Jd August, 2024 MWANDAMBO. 3.A.: The respondent EFC Tanzania M.F.C Limited, was aggrieved by the decision of the High Court (Labour Division) in an application for revision emanating from the award made in favour of the applicant by the Commission for Mediation and Arbitration (the CMA). The decision sought to be challenged was made on 11 September, 2020 but the respondent lodged a notice of appeal on 26 October, 2021 after the High Court had extended time for doing so in a ruling delivered on 5 July, 2021 time in Misc. Application No. 66 of 2021. In terms of rule 90 (1) of the Tanzania

Court of Appeal Rules, 2009 (the Rules), the respondent was required to institute its appeal within 60 days reckoned from the date of lodging a notice of appeal. In terms of rule 90(1) of the Rules, the respondent made a written request to the Deputy Registrar of the High Court for the supply of requisite copies of documents for appeal purposes. The above notwithstanding, on 7 February, 2023, the applicant filed an application predicated upon rule 89 (2) of the Rules for striking out the notice of appeal allegedly for failure to institute the appeal within the prescribed time. The averments in the founding affidavit blame the respondent for its failure to institute the appeal branding it as a delaying tactic aimed at frustrating the execution of the decree, subject of the impugned notice. Resisting the application, the respondent filed an affidavit in reply the substance of which is that, the inability to institute the appeal is attributed to the failure by the Deputy Registrar of the High Court to furnish her with copies of requisite documents for appeal purposes despite follow- ups in that regard. At the hearing of the application, Ms. Glory Venance, learned advocate, addressed the Court and urged us to grant the application on the grounds

stated in the founding affidavit. Mr. Stephen Mayombo, learned advocate did alike in opposition. Initially, Mr. Mayombo was adamant that the application was premature because as shown in the affidavit in reply, the Deputy Registrar had not supplied the requisite documents had requested for appeal purposes and so, Court should dismiss the application. A little later, Mr. Mayombo conceded in response to the question put to him by the Court that the notice of appeal sought to be struck out was lodged beyond 30 days from the date of the order extending time to do so. That notwithstanding, counsel contended that, the applicant's application was not predicated upon the delay in lodging the notice as one of his grounds but, failure to make a reminder to the Deputy Registrar upon expiry of 90 days from the date of the request for requisite documents for appeal purposes. By that argument, counsel appeared to suggest that, the applicant cannot rely on a ground not raised in the notice of motion. All the same, he was quick to concede that the delay in lodging the notice of appeal was fatal to the respondent's intended appeal. Upon hearing oral arguments from the learned advocates and having examined the documents placed before us, in particular, a copy of the notice of appeal lodged in Court on 26 October, 2021, there can be no doubt that, the said notice of appeal was lodged way beyond 30 days

contrary to the express provisions of rule 83 (2) of the Rules as conceded by Mr. Mayombo. It is significant that, one of the grounds envisaged under rule 89(2) of the Ruies is that no appeal lies to the Court. In this application, no appeal can lie in circumstances where a notice of appeal; the first step towards an appeal was lodged out of time. Granted that the applicant did not raise it as a ground but that does not preclude the Court from raising it as it were, more so when the respondent's advocate has conceded the delayed lodging. Neither the failure to raise it as a ground makes the notice any better. That alone is sufficient to strike out the purported notice regardless whether it was raised as a ground in the notice of motion. At any rate, it was not disputed that, contrary to rule 90 (5) of the Rules, the respondent's reminder letter to the Registrar was delivered beyond 15 days within which the Deputy Registrar was bound to furnish the respondent with copies of the necessary documents. That ground suffices to grant the application independent of the incompetence of the notice of the appeal. On the whole, we find the application merited and grant it. Consequently, the notice of appeal lodged on 26 October, 2021 is hereby

struck out as prayed in the notice of motion. Considering the nature of the dispute giving rise to the application, we make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 21st day of August, 2024. L. 1 S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A.S. KHAMIS JUSTICE OF APPEAL The Ruling delivered this 23rd day of August, 2024 in the presence of Ms. Glory Venance, leaned counsel for the Applicant and Mr. Stephen Mayombo, learned counsel for the Respondent is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 5