Tangono Mahondero vs Emmanuel Bilinge (Civil Application No. 151/01 of 2022) [2023] TZCA 17765 (20 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KOROSSO. 3.A.. RUMANYIKA. J.A. And MGONYA. 3.A. CIVIL APPLICATION NO. 151/01 OF 2022 TANGONO MAHONDERO .......................................................... APPLICANT VERSUS EMMANUEL BILINGE ...................... .............. ....................RESPONDENT (Application to strike out Notice of Appeal from the Judgment of the High Court of Tanzania, at Dar es Salaam) (De-Mello. J/> dated 25th July, 2019 in Civil Reference No. 3 of 2019 RULING OF THE COURT 2nd & 2 ffh October, 2023 RUMANYIKA, J.A:. This is an application by Tangono Mahondero, the applicant, through his learned advocate, Mr. Egidi Seraphin Mkoba, to strike out the notice of appeal filed in the Court by Emmanuel Bilinge, the respondent on 29th July, 2019. The application is founded on two grounds: One, that, the applicant has failed to take essential steps in the proceedings, i

namely to apply for leave to appeal and two, that, no appeal lied until on 31s t March, 2023 when the instant application was lodged. The application is by way of notice of motion made under Rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), as amended, and it is supported by an affidavit sworn by the applicant. Briefly, all began in the District Court of Kibaha, at Kibaha in Civil Case No. 14 of 2009. The respondent lost the battle. Aggrieved, the respondent approached the High Court of Tanzania at Dar es Salaam vide Civil Appeal No. 60 of 2015 which was struck out with costs. Following that decision, the applicant filed Bill of costs No. 60 of 2015, for TZS 2,925,000.00. However, the Taxing master less taxed that bill at TZS 1,925,000.00. Aggrieved by that order, the respondent unsuccessfully filed Civil Reference No. 3 of 2019. Further aggrieved, the respondent filed a Notice of Appeal to this Court on the 29th July, 2019 to challenge the said decision and duly served it to the applicant. Mr. Mkoba expounded in the supporting affidavit contending that, from 29th July, 2019, when the respondent lodged the said Notice of Appeal, to 31s t March, 2022 when the instant application was filed, no any essential step to facilitate the institution of an appeal had been taken. Since the respondent admitted that fact in paragraph 3 of his 2

affidavit in reply against the application, he did not apply for leave to appeal to the Court. That omission, Mr. Mkoba asserted, contravened the provisions of section 5(1) (b) and (c) of the Appellate Jurisdiction Act Cap. 141 R.E, 2019. Additionally, Mr. Mkoba contended that, the respondent did not serve the applicant with the letter to the Registrar, requesting for copies of the respective impugned ruling, the order and proceedings or record of appeal. Mr. Mkoba thus, implored us to strike out the respondent's notice of appeal for the tatter's failure to take essential steps in the proceedings to institute appeal. On his part, the respondent appeared in person without representation, and had not filed an affidavit in reply. However, he contended to have taken the following essential steps: One, he served the applicant with a copy of the letter to the Registrar requesting for copies of some documents for appeal purposes, two, that upon receiving the Registrar's letter inviting him to collect the said documents and while still desirous to appeal, yet still he did not lodge an appeal, since, he was yet to be issued with the respective certificate of delay. In the whole, the respondent stressed that, the alleged delay is not his fault. He threw the blame on the Registrar and prayed for an order dismissing this application.

Rejoining, and on a further reflection, Mr. Mkoba appreciated the existence of an appeal filed by the respondent. However, he urged us not to take it into consideration because the respective essential steps towards filing of the said appeal were taken belatedly. Rule 89 (2) of the Rules which prompts and governs the institution of application of this nature reads; "'Subject to the provisions o f sub ruie (1), any other person on whom a notice o f appeal was served or ought to have been served may at any time, either before or after the institution o f the appeal, appiy to the Court to strike out the notice o f appeal or the appeal, as the case may be, on the ground that no appeal lies or that some essentia! step in the proceedings has not been taken or has not been taken within the prescribed time." (Emphasis added). Being confronted with a similar problem in the case of Asmin Rashidi v. Bako Omari [1997] T.L.R. 146 we observed that, necessary steps, or, as commonly named, essential steps are those steps taken by a party to advance the institution and hearing of an appeal. We have taken the same stance in several subsequent cases, including James

Bernado Ntambala v. Furaha Denis Pashu, Civil Application No. 178/11 of 2016 (unreported). Coming to the instant application, from the record it is undisputedly true that, from 29th July, 2019, when the respondent filed the notice of appeal to 31s t March, 2022 when this application was filed, no appeal had been instituted. The respondent should have applied for leave to appeal, immediately after 9th May, 2022. However, he neither sought leave nor obtained it to file appeal. At least, on 27th July, 2019, the respondent applied for copies of necessary documents for appeal purposes and, by his letter of Reference No. CIVIL REFERENCE NO. 03/2019 dated 9th May, 2022, though belatedly, the Registrar notified and invited the respondent to collect the documents requested as they were readily available. Consequently, on 9th May, 2022, the Registrar issued the respondent with a certificate of delay excluding the period between 27th July, 2019, when the documents were requested to 9th May, 2022 when the respondent was notified and invited to collect the same. However, it was earlier on noted that, the respondent neither sought leave required under section 5(1) (c) of the Appellate Jurisdiction Act, (Cap 141 R.E 2019) to appeal nor he had

lodged an appeal on or by 31s t March, 2022, when this application was filed. We wish to stress that rule 89(2) of the Rules is mandatory whose strength should not be under estimated. Since it imposes a dual purpose control mechanism on a notice of appeal filed in the Court such as; one, the adverse party should be made aware of what will happen to him in Court this time tomorrow, at the earliest possible opportune and two, any notice of appeal should not be left unattended to give a room for endless litigation. That said therefore, the notice of appeal under scrutiny cannot survive any further. Since, it has been abandoned in Court. The Court has taken that stance, in a number of cases, such as, in D.P. Valambia v. Transport Equipment Ltd [1992] T.L.R. 246. In the latter case, we held so when dealing with the effect of non- observance of rule 77(1) of the 1979 Court Rules, before the Rules came into force about thirty years later. In fact, the respondent did not lead any evidence to disprove Mr. Mkoba's assertions attacking the notice of appeal which is alleged to have been abandoned in the Court, and on that account liable to be struck out.

In conclusion, we find merits in the application and grant it. In terms of rule 89(2) of the Rules we hereby strike out the notice of appeal filed in Court on 29th July, 2019. The applicant shall have his costs of the application. Order accordingly. DATED at DAR ES SALAAM this 17th day of October, 2023. W. B. KOROSSO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 20thday of October, 2023 in the presence of Mr. Emmanuel William Kessy holding brief for Mr. Egidi Mkoba, learned counsel for the Applicant and the Respondent appeared in person, is hereby certified as a true copy of the original. D. R7LYIMO DEPUTY REGISTRAR COURT OF APPEAL 7