Metal Impex GMBH vs Litenga Holdimg Limited (Civil Application No. 485/01 of 2022) [2023] TZCA 17867 (21 November 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. J.A., MWAMPASHI. 3.A. And MDEMU. J.A.^ CIVIL APPLICATION NO. 485/01 OF 2022 METAL IMPEX G M B H ................................................................. APPLICANT VERSUS LITENGA HOLDING LIMITED........................... ...... ..............RESPONDENT (An application to strike out a Notice of Appeal lodged against the decision of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam) (Kakolaki, J.^ dated the 4th day of December, 2020 in Civil Case No. 135 of 2018 RULING OF THE COURT 13^ & 21st November, 2023 MKUYE. J.A.: This is an application for striking out a notice of appeal that was lodged by the respondent, Litenga Holding Limited on 24/12/ 2020. It is made by way of a notice of motion taken under Rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (henceforth "the Rules"). It is supported by an affidavit deposed by Dr, Chacha Bhoke Murungu, learned advocate for the applicant. The grounds for which the application is premised are that: i

(i) The respondent failed to lodge the record of appeal and the memorandum of appeal within sixty days. (ii) The respondent failed to collect the copy of proceedings within 14 days after the expiry of ninety days. The brief facts leading to this application are as follows: The applicant, Metal Impex GMBH, had filed before the High Court of Tanzania, Dar es Salaam District Registry, a suit (Civil Case No. 135 of 2018) against the respondent for breach of a loan agreement. Upon a full trial, the trial court (Hon. Kakolaki, J) delivered a judgment in favour of the applicant. Aggrieved by that decision, the respondent on 8/12/2020 lodged a letter to the Registrar applying to be supplied with copies of proceedings, judgment, decree and certified exhibits for appeal purposes. On 24/12/2020 she filed a notice of appeal which was served on the applicant on 5/11/2021 in which case, the applicant complains that no essential steps were taken towards instituting the appeal. When this application was called on for hearing, Dr. Chacha Bhoke Murungu was in attendance representing the applicant, whereas neither the respondent nor her advocate entered appearance although the notice of hearing revealed that her advocate was served on 23r d October, 2023, through Raphael Mungai from Charles G. Lugaila,

Advocate, G & C Law Chambers Nkurumah Street, Lida House 2n d Floor, Apt No. 212. On this account, Dr. Murungu prayed and leave was granted for the application to be heard in the respondent's absence under Rule 106 (12) of the Rules since the respondent had filed her written submission in reply. Upon being availed an opportunity to expound the grounds of motion, Dr. Murungu was fairly brief and he prefaced his submissions in support of the application by first adopting the affidavit and written submission to form part of his oral submission. Having done so, he elaborated that, the respondent has failed to take essential steps in instituting the appeal. He contended that, although she lodged a notice of appeal on 24/12/2020 and wrote a letter requesting for the copies of proceedings, judgment and decree on 8/12/2020 after the judgment in Civil Case No 135 of 2018 was delivered on 4/12/2020, the respondent did not file the appeal up to the time she filed this application on 18/8/ 2022, which was after one (1) year and nine (9) months from when the notice of appeal was filed. Apart from that, he argued, the respondent failed to comply with Rule 90 (5) of the Rules because she did not write a reminder letter within 14 days to the Registrar after the expiry of 90 days. He added 3

that, the respondent lodged a reminder letter on 30/8/ 2022 which was after more than one year from the expiry of 90 days which expired on 7/3/2021. In his view, this was inaction and gross negligence on the part of the respondent. He, thus, insisted as stated in para 8 of the affidavit in support of the application that, the notice of appeal be struck out with costs for failure to take essential steps in the proceedings. To fortify his proposition, he referred us to the case of Rehema Idd Msabaha v. Salehbhahai Jafferjee Sheikh and Another, Civil Application No. 527/17 of 2019 (unreported) where the Court cited the case of Jackson Mwaipyana v. Parcon Limited, Civil Application No. 115/01 of 2017 (unreported) in which, while discussing the gist of Rule 90 (5) of the Rules, stated as follows: "In the light o f the foregoing provisions, the Registrar is required to ensure that within ninety (90) days from the date when the intending appellant asked for documents they are ready for collection and bears the duty to inform him so. After the expiry o f the ninety (90) days, the intending appellant is tasked by the provisions to make follow up o f the documents he requested from the court within fourteen (14) days".

In the said case, the Court also while relying on the case of Beatrice Mbilinyi v. Ahmed Mabkhut Shabiby, Civil Application No. 475/01 of 2020 (unreported), went on to state that failure to approach the Registrar within the prescribed period of 14 days after the expiry of ninety days amounts to failure to take an essentiai step within the ambit of Rule 89 (2) of the Rules. To conclude, Dr. Murungu urged the Court to find that the application is meritorious and grant it with costs. Through the affidavit and written submission in reply, we gather that the respondent has countered the applicant's averment contending that until the filing of this application, the requested documents had not been ready for collection - (see para 6 and 7 of the affidavit in reply). Conversely, the respondent insists that from when she had applied for the documents, they are yet to be obtained. It is contended further that, the respondent's advocate has been making follow-ups at the High Court at the end of every month from the date the letter requesting for documents had been iodged; and that despite the fact that the respondent has been able to obtain the judgment and decree but it has been difficult to obtain the proceedings as they were told that the case

is old and the proceedings are long. In this regard, she is adamant that the application is baseless and prays that it be dismissed with costs. Having examined the notice of motion and the rival arguments from both parties/ we find that the issue for this Court's determination is whether the application is meritorious. Rule 89 (2) of the Rules to which the notice of motion is taken empowers the Court to strike out a notice of appeal where one; no appeal lies; two, an essential step has not been taken by the intended appellant, such as where the appellant has failed to institute an appeal within the prescribed time - See Mwananchi Communication Ltd v. New Habari (2006) Limited, Civil Application No. 61/16 of 2017 (unreported); and three, where an essential step has been taken beyond the prescribed period of time - See National Housing Corporation v. Ms. Lazion Ghadu Shekhe Civil Application No. 134 of 2005 (unreported). On the other hand, in terms of Rule 90(1) of the Rules, the intended appellant is required to lodge an appeal within sixty days from lodging the notice of appeal. However, as an exception, the appellant may lodge an appeal in a period beyond sixty days if the time required for the preparation of the copies of proceedings, judgment and decree is

excluded through a certificate of delay issued by the Registrar after having lodged a letter requesting for such documents within thirty days from the date of the decision and a copy of such letter is served on the respondent. The said Rule 90 (1) provides as follows: "90. -(1) Subject to the provisions o f ruie 128, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice o f appeal was lodged with- (a) a memorandum o f appeal in quintupiicate; (b) the record o f appeal in quintupiicate; (c) security for the costs o f the appeal, save that where an application for a copy o f the proceedings in the High Court has been made within thirty days o f the date o f the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar o f the High Court as having been required for the preparation and delivery o f that copy to the appellant. (2) ......... N/A ......... 7

(3) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and a copy o f it was served on the Respondent [Emphasis added] It is from the above provisions of the law where the applicant's complaint lies that the respondent failed to lodge his appeal within sixty days after lodging the notice of appeal. In this application, it is true that the impugned decision was handed down on 4/12/2020. On 8/12/2020, the respondent wrote a letter requesting to be supplied with copies of proceedings, judgment and decree for appeal purposes. On 24/12/2020 she lodged a notice of appeal against the said decision. By simple calculation, the sixty days expired on 23/2/2021 or rather she was required to lodge the memorandum of appeal and the record of appeal by that date. As argued by the applicant and not controverted by the respondent, there is no appeal that was instituted by the respondent by that date. Failure to do so is a fatal anomaly as the appeal lodged thereafter would be time barred unless the provisions in the proviso to subrule (1) and (3) of the Rules come into play whereby the time requisite for obtaining the requested copies of the proceed!ngs, judgment and decree for appeal

purposes would be excluded vide a certificate of delay issued by the Registrar. We note that, it was the applicant's further argument that, since the respondent had written a letter requesting for the supply of documents on 8/12/2020 and the record shows that it was served on the applicant on 5/1/2021, then the respondent ought to make a follow up within 14 days after the expiry of ninety days from the date when the letter requesting for documents was written as per the dictates of Rule 90 (5) of the Rules latest by 8/3/2021. The respondent averred in her affidavit in reply that she was yet to be supplied with copies of proceedings and certified exhibits which are necessary for the preparation of a memorandum of appeal and that even if her advocate may have made follow-ups, he could have not compelled the Registrar to supply her with such documents. In her written submission she added that, it was difficult to obtain the copy of proceedings because of the case being old with long proceedings and a typist who was typing it was handling other court users' files. Rule 90(5) of the Rules provides that: Subject to the provisions o f subrule (1), the Registrar shall ensure a copy o f proceedings is ready for delivery within ninety (90) days from

the date the appellant requested for such copy upon being informed by the Registrar to do so, or within fourteen (14) days after the expiry o f the ninety (90) days" [Emphasis added] In our view, this provision places an obligation to both the Registrar and the intended appellant. It has two limbs. One, the Registrar to ensure that the copy of proceedings requested is ready for collection within ninety days from the date they were requested and is required to inform him. Two, the intended appellant who requested for the copy of proceedings to take a step to collect them within fourteen days after the expiry of the ninety days if not informed by the Registrar that the documents are ready for collection. And, ideally, it is expected that if the intended appellant discharges such an obligation, there would be proof of the step he has taken. It is important to emphasis that, the above cited provision was expounded in the case of Rehema Idd Msabaha (supra) as alluded to earlier on. In this case, as was hinted earlier on, the respondent lodged her letter requesting for copies of proceedings on 8/12/2020. Since then, it appears as averred by the applicant that nothing was done and after expiry of the ninety days, there has been no follow-up within fourteen 10

days upon such expiry. Of course, we are aware that the respondent countered it in paragraphs 6 and 7 of the affidavit in reply that until the filing of this application, the requested documents had not been ready for collection; and in written submission, added that, the copy of proceedings could not be out for a reason that the case is old; that the typing is taking long since the proceedings are long; and that a typist with many duties could not make it. However, it is our view that, the contention that the respondent made follow-ups requires proof. We say so because, if there were such efforts made, the respondent ought to have obtained an affidavit from whoever staff who could have confirmed the respondent's efforts to make follow-ups and the fact that it was difficult to obtain such copies of proceedings as it is a long-standing case (old case) and that the typist dealing with the relevant file was also busy with other court user's files. In the absence of such proof, we cannot with certainty hold that the respondent did make such efforts and, therefore, we find that she failed to take essential steps in instituting the appeal. In view of what we have canvassed hereinabove, we are satisfied that the application is merited and we grant it.

Consequently, in terms of Rule 89 (2) of the Rules, we hereby strike out the notice of appeal that was lodged by the respondent on 24/12/2020 against the judgment and decree of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam dated 4/12/2020 in Civil Case No. 135 of 2018 with costs. Order accordingly. DATED at DAR ES SALAAM this 20th day of November, 2023, R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 21s t day of November, 2023 in the presence of Dr. Chacha Bhoke Murungu, learned counsel for the applicant and in the absence of the respondent, is hereby certified as a true copy of the original.