Riziki Mbise vs Prukeria P. Balilemwa and Another (Civil Application No. 75/08/2017) [2018] TZCA 955 (17 July 2018)

 ~ 
 IN THE COURT OF APEAL OF TANZANIA \ ,-. \ 
. . AT MWANZA . t)O '--\o.~ 
 {CORAM: MUGASHA. J.A . .- MKUYE. l.A .• And MWANGESI. J.A\) 
 CIVIL APPLICATION NO. 75/08/2017 
 RIZIKI MBISE ........•...•........................................................•.... APPLICANT 
 VERSUS 
 . 1. PRUKERIA P. BALILEMWA .................................. - ............. 1 
st 
RESPONDENT 
2. S. L. ISANGI AUCTION MART & COURT BROKER .............. 2 
nd 
RESPONDNET 
{Application to strike out Notice of appeal from the judgment of the High 
Court of "Tanzania, Mwanza Registry) 
 13 
th 
& 18 
th 
July, 2018 
 MWANGESI, J.A.: 
 {Bukuku. l.) 
dated the 17 
th 
day of lune, 2015 
in 
Land Appeal No. 72 of 2010 
 RULING OF THE COURT 
 By notice of motion preferred under the provisions of Rules 4 (2) and 
89 (2) of the Court of Appeal Rules, 2009 hereinafter referred to as the 
 Rules, supported by an affidavit that was sworn by Faustin Anton 
Malango, the applicant is seeking the indulgence of the Court to strike out 
the notice of motion that was lodged by the first respondent on the 19 
th 
day of February, 2015 on the ground that, the first respondent has failed 
to take essential step in the proceedings in that, he has not applied for and 
obtained leave to appeal. 
 1

On the 19 
th 
day of January, 2017, the applicant lodged written 
submission in support of the notice of motion which was in compliance with 
the requirement under Rule 106 (1) of the Rules. The application has on 
the other hand, been resisted by the first respondent vide an affidavit in 
reply which was sworn by Prukeria Balilemwa and lodged in Court on the 
24 
th 
day of January, 2017. And in compliance with Rule 106 (8) of the 
Rules, the first respondent also lodged written submission in reply to the 
one lodged by the appl.icant. 
 On the date when the application came for hearing, the applicant 
entered appearance through Mr. Faustin Anton Malango, learned counsel, 
whereas, the first respondent, authorized one Mr. Marwa Chacha Kisyeri by 
a power of attorney, to represent her. On his part, the second respondent 
was nowhere to be seen even though he had been duly served. In that 
regard, in terms of the provisions of Rule 63 (2) of the Rules, the hearing 
of the application had to proceed in the absence of the second respondent. 
As there was a preliminary objection which had been raised by the 
first respondent premised on six grounds, we had to observe the cherished 
principle of practice of dealing with them first, before moving to the main 
application. Nonetheless, after some dialogue between the Court and the 
first respondent, it became apparent to the first respondent that, what she 
2

,, 'l 
 had believed to be preliminary points of objections, were not worth being 
termed so. As a result, he abandoned all of them paving way for the 
hearing of the main application. 
In his submission on the main application, Mr. Malango prayed to 
adopt the affidavit in support of the notice of motion, as well as the written 
submissions, to form part of his oral submission. It was his submission 
that, the application by the applicant has been prompted by the inaction of 
the first respondent from making the appeal of which its notice was lodged 
on the 19 
th 
February, 2015, get instituted. 
Giving a brief account of the matter giving rise to the application, the 
learned counsel stated that, the first respondent was the appellant in Land 
Appeal No. 72 of 2010 in the High Court of Tanzania Mwanza Registry. The 
decision in the said appeal was delivered on the 17 
th 
day of February, 2015 
(Bukuku, J.), whereby the appeal was dismissed in its entirety with costs. 
The first respondent felt aggrieved by the decision and on the 19 
th 
February, 2015 lodged a notice of appeal. 
The learned counsel submitted further to the effect that, the fact that 
the dispute between the first respondent and the applicant was in respect 
of a land matter, in terms of the provisions of section 47 (1) of the Land 
Disputes Courts Act, Cap 216 (the Land Courts Act), she could not 
3

had believed to be preliminary points of objections, were not worth being 
termed so. As a result, he abandoned all of them paving way for the 
hearing of the main application. 
In his submission on the main application, Mr. Malango prayed to 
adopt the affidavit in support of the notice of motion, as well as the written 
submissions, to form part of his oral submission. It was his submission 
that, the application by the applicant has been prompted by the inaction of 
the first respondent from making the appeal of which its notice was lodged 
on the 19 
th 
February, 2015, get instituted. 
Giving a brief account of the matter giving rise to the application, the 
learned counsel stated that, the first respondent was the appellant in Land 
Appeal No. 72 of 2010 in the High Court of Tanzania Mwanza Registry. The 
decision in the said appeal was delivered on the lih day of February, 2015 
(Bukuku, J.), whereby the appeal was dismissed in its entirety with costs. 
The first respondent felt aggrieved by the decision and on the 19 
th 
February, 2015 lodged a notice of appeal. 
The learned counsel submitted further to the effect that, the fact that 
the dispute between the first respondent and the applicant was in respect 
of a land matter, in terms of the provisions of section 47 (1) of the Land 
Disputes Courts Act, Cap 216 (the Land Courts Act), she could not 
3

appeal to the Court without first seeking and obtaining leave from the High 
Court. There was an attempt by the first respondent in Miscellaneous Civil 
Application No. 14 of 2015, to obtain such leave. However, the application 
was struck out for want of competency vide the ruling that was delivered 
on the 5 
th 
day of February, 2016 (Ebrahim, J.). Thereafter, no step was 
taken by the first respondent until when the applicant lodged this notice of 
motion on the 21 
st 
day of November, 2016. 
In view of the failure by the first respondent to take the requisite 
steps to institute the appeal, Mr. Malango submitted that, it is legally 
deemed. that, she is no longer interested to pursue the appeal. Placing 
reliance on the holdings in Said Himidu Mwilima Vs. Tabora Region 
Trading Company [1997] TLR 156 and Grace Frank Israel Vs. Doctor 
Frank Israel Ngowi [1984] TLR 120, the learned counsel for the 
applicant urged us to strike out the notice of appeal. 
In response, Mr. Kisyeri on behalf of the first respondent, in principle 
conceded to the fact that, indeed no step has been taken so far by the first 
respondent to apply for and secure leave in furtherance of lodging the 
intended appeal after the attempt in Miscellaneous Civil Application No. 14 
of 2015 was struck out. He however, tried to give explanation as to why 
4

there was such failure by the first respondent, which on our part, we 
thought that, it was not the proper forum to do so. 
In the light of the foregoing position, the issue for the determination 
by the Court is whether or not, the application by the applicant is founded. 
Our take off in resolving the issue, is the wording of Rule 89 (2) of the 
Rules under which the application has been made, which bears the 
following wording, that is: 
 11 
Subject to the provisions of sub rule (1), a respondent or other 
person on whom a notice of appeal has been served may at any 
time, either before or after the institution of the appeal apply to the 
Court to strike out the notice or the appeal as the case may be on 
the ground that no appeal lies or that, some essential step in the 
proceedings has not been taken or has not been taken within 
the prescribed time." 
 [Emphasis supplied] 
The subsequent question that crops up from the wording of the 
provisions quoted above is, what is essential step? The decision in Asmin 
Rashid Vs Boko [1997] TLR 156, did give an answer to the question 
where, while discussing the essential steps as contained in Rule 82 of 
 5

the then Court of Appeal Rules, 1979, which had similar wording with our 
current Rule 89 (2) of the Rules, stated that: 
 ''Essential steps in the prosecution of an appeal as envisaged by Rule 
82 (now Rule 89 (2)), were steps which advanced the hearing of the 
appeal and not explanation for the delays. One of the essential steps 
was to apply for leave to appeal--- for there was no automatic right 
of appeal. " 
 The circumstances which pertained to the case cited above, falls 
within all fours of the circumstances pertaining to the matter at hand. As 
submitted by the learned counsel for the applicant, the dispute between 
the first respondent and the applicant was in respect of a land matter. And, 
by virtue of the stipulation under the provisions of section 47 (1) of the 
Land Courts Act, an appeal on a land matter to the Court of Appeal has 
to be made after leave has been sought and obtained from the High Court. 
In its own words the provision reads: 
 "47 (1) Any person who is aggrieved by the decision of the High 
Court in the exercise of its original, revisional or appellate Jurisdiction, 
may with the leave from the High Court appeal to the Court of Appeal 
in accordance with the Appellate Jurisdiction Act." 
 6

In the instant matter we have been told by the learned counsel for 
the applicant that, from the 5 
th 
day of February, 2016, when the attempt 
by the first respondent to obtain leave to appeal was struck out, to the 21 
st 
day of November, 2016, when the instant application was lodged, there 
was nothing done by the first respondent to make her appeal to challenge 
the decision of the High Court get lodged. Since such fact has been 
admitted by Mr. Kisyeri on behalf of the first respondent, it is evident that, 
the first respondent has failed to take the essential step of seeking and 
obtaining leave to appeal for a period of about 290 days or nine and half 
months or so. This situation can be equated to what was observed by the 
Court in Saidi Himidu Mwilima Vs. Tabora Regional Trading 
Company (supra) that: 
 "The situation, then, is that there is a notice of appeal which is 
inoperative because there is not the prerequisite leave to appeal 
and that time for applying for such leave has already run out, while it 
does not appear that an application to enlarge that time has been 
made. In any case, one cannot say without hesitation that, there is 
an appeal pending in this Court.,, 
 With the foregoing position the way forward would be as it was 
stated in Grace Frank Israel Vs. Dr. Frank Israel Ngowi (supra), that: 
7

"An appeal would be struck out where no satisfactory explanation is 
given as to why the various rules of the Tanzania Court of Appeal 
 Rules/ 1979 (now 2009) were not complied with." 
 See also: Nyachiro Bitura Vs. Khamis Ndurwe, Civil Application No. 
12 of 2016 and Mohamed Salim Said Vs. Tanga Gas Distributors 
Limited, Civil Application No. 176 of 2013 (both unreported) 
In the event, we find merit in the application by the applicant and we 
hereby grant it. We accordingly strike out the notice of appeal which was 
lodged by the first respondent on the 19 
th 
day of February, 2015, and order 
the _applicant to have his costs. 
Order accordingly. 
 WANZA this lih day of July, 2018 
S.E.A. MUGASHA 
 JUSTICE OF APPEAL 
 R. K. MKUYE 
 JUSTICE OF APPEAL 
 S. S. MWANGESI 
 JUSTICE OF APPEAL 
 I certify that this is a true copy of the original. 
 ' . B.A~PO 
 DEPUTY REGISTRAR 
COURT OF APPEAL 
 8