Awaki Shauri vs Norbert Christopher Gambay and Another (Civil Application No. 19 of 2016) [2017] TZCA 271 (6 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MJASIRI, J.A.. MWARI3A, J.A.. And MWANGESI, J.A.^ CIVIL APPLICATION NO. 19 OF 2016 AWAKI SHAURI............................................................ APPLICANT VERSUS NORBERT CHRISTOPHER GAMBAY (Legal representative of Christopher Gwandu) .......... 1st RESPONDENT BARNABAS DAFFI (Legal representative of Daffi Slarrhhi) ..................... 2n d RESPONDENT (Application for striking out the notice of appeal lodged by the respondents on 3rd December 2015 against the judgment and decree of the High Court of Tanzania at Arusha) (K. M. Mussa, J.) Dated the 25th day of January, 2008 in Civil Case No. 9 of 2003 RULING OF THE COURT 28th Nov. & 6th Dec. 2017 MWANGESI, J.A.: The application at hand has been made by way of notice of motion preferred under the provisions of Rule 48 (1) (2) and 89 (2) of the Court of Appeal Rules, 2009 hereinafter referred to as the Rules, whereby, the applicant is seeking for the indulgence of the Court, to strike out the notice i

of appeal that was lodged by the respondents on the 3r d day of December, 2015, intending to challenge the decision of the High Court (Mussa, J.) dated the 25th January, 2008. The notice of motion is supported by an affidavit that was sworn by Awaki Shauri, the applicant herein. The application is on the other hand, resisted by the respondents vide the affidavit in reply, which was sworn by one Norbert Christopher Gambay, who according to the affidavit, is the legal representative of the first respondent. Additionally, the respondents did lodge two preliminary objections premised on the competence of the application, and non compliance with some mandatory provisions of law. When the application was called on for hearing on the 28th November, 2017, the applicant did appear in person without legal representation and fended for himself, whereas, the respondents were as well legally unrepresented and also fended for themselves. Given the fact that, both sides were not legally represented, the Court did inform them that, the procedure demanded the preliminary objections to be attended first before moving to the substantive application. Nevertheless, upon the respondents being enlightened on the nature of preliminary points of

objections, they did voluntarily withdraw the preliminary objections, which seemingly were unsustainable. To that end, the parties were invited to address the Court on the substantive application. In his oral submission before us in amplification of the application, the applicant did argue that, he was beseeching the Court to strike out the notice of appeal, which was lodged by the respondents on the 3r d day of December, 2015 to challenge the decision of the High Court that was decided in their disfavor way back on the 25th January, 2008. His application was founded on the fact that, ever since the respondents lodged the said notice of appeal, they have never taken any essential steps in accordance to law, to ensure that the intended appeal gets lodged and prosecuted. Regard being made to the time that has elapsed from when the decision sought to be impugned was delivered that is, about fourteen years now, he did complain that, there is no genuine intention by the respondents to prosecute the intended appeal, instead, they are just buying time, so as to continue benefitting from the disputed property and 3

thereby, depriving him of his right over the same. He did therefore, humbly request the Court to strike out the said notice of appeal with costs. In rebuttal to the submission of the applicant, the respondents through Barnabas Daffi, whose oral submission was meant for both of them, was to the effect that, he and his colleague one Norbert Christopher Gambay, are the legal representatives of the demised respondents. While conceding to the fact that, they have indeed not taken the requisite steps to enable the lodging and prosecution of the appeal from when the notice of appeal was lodged to date, he did implore the Court not to strike out the notice of appeal for the reason that, the delay so to do, was not of their own making. He did account for the delay to have been attributed by the high costs involved in the process whereby, they were compelled to part ways with the advocate who had been representing them before, and prosecute it themselves. Since then, they have been labouring to secure the appropriate documents from the High Court, so as to lodge a fresh appeal after the earlier one was struck out by the Court. In order to assist the beneficiaries of the demised respondents whom they represent, to get what is due for them from their demised benefactors, he did urge us to

permit them to proceed processing the appeal of which, they have reached at an advanced stage. What stands for our deliberation in the light of what was submitted by the parties from both sides above is whether, there are sound grounds to move the Court to grant the application sought by the applicant to strike out the notice of appeal, which was lodged by the respondents on the 3r d December, 2015. Our take off is the provision of Rule 89 (2) of the Rules, under which the application has been made, which stipulates that: "89 (2) - subject to the provisions of sub rule (1), a respondent or other person on whom a notice o f appeal has been served may at any time, either before or after institution o f 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." As earlier pointed out herein above, the notice of appeal in the instant application was lodged in Court by the respondents on the 3r d day 5

of December, 2015. In terms of the provision of Rule 90 (1) of the Rules, after the respondents had lodged their notice of appeal, the law required them to have lodged their appeal within sixty days from the date on which the notice of appeal was lodged. In its own words, the provision which has been couched in mandatory terms reads:- "90 (1) - Subject to the provisions of Rule 1 2 8 an appeal shall be instituted by lodging in the appropriate registry, within sixty days o f the date when the notice o f appeal was lodged with- (a) A memorandum o f appeal in quintuplicate: (b) The record o f appeal in quintuplicate: (c) Security for the costs o f the appeal. Save that where an application for a copy of proceedings in the High Court has been made within thirty days of the date of 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 of the High Court as having been required for the preparation and delivery o f that copy to the appellant." [Emphasis supplied] 6

It is apparent in line with the wording in the above quoted provision of law that, the respondents were obligated to institute the appeal in respect of the notice which they lodged, within a period of sixty days from the 3r d December, 2015, which they have failed to do to date, after the elapse of almost two years. The respondents could only be spared, if they fell within the exception provided under the proviso to the above quoted Rule that is, if they were waiting to be supplied with some documents, which they had asked from the High Court, to facilitate the lodgment of the appeal. And, for them to avail themselves with such exception, they had to fulfill the requirement stipulated under sub - rule (2) of Rule 90 of the Rules, which bears the following wording, that is: "90 (2) - 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 " Unfortunate on the part of the respondents, there was no evidence disclosed from the affidavit filed in reply to the notice of motion, to establish that, they can benefit from the exception provided under the

proviso to Rule 90 (1) of the Rules in that, there'was no application made to the High Court asking for such documents, and a copy served to the applicant. Under the circumstances, undoubtedly, there is merit in the application by the applicant that, the respondents did fail to take essential steps to prosecute the appeal. Faced with such similar situation, this Court in Asmin Rashid Vs Boko Omari [1997] TLR 146 did hold that: "nothing essential had been done since 2$h April 1996 to prosecute the appeal for a whole year and the notice had to be struck out . " See also: Grace Frank Ngowi Vs Dr. Frank Israel Ngowi [1984] TLR 120, D. V. Valambhia Vs Transport Equipment Limited [1992] TLR 249 and unreported cases of Suzana Msigala Vs Erick Msigala, Civil Application No. 68 of 2012 and Hassan Abdallah Vs Tanzania Telecommunication Company Limited, Civil Application No. 176 of 2014. Since the respondents in the application at hand, did fail to comply with the mandatory requirements stipulated by the law as canvassed herein above, we are constrained to heed to the invitation which has been extended to us by the applicant, by striking out the notice of appeal, which

was lodged by the respondents on the 3r d day of December, 2015, with costs. Order accordingly. DATED at ARUSHA this 30th day of November, 2017. S. MJASIRI JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL S.S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 9