Mohamed Salim Said vs Tang Gas Distributors Ltd (Civil Application No. 176 of 2013) [2017] TZCA 1168 (24 October 2017)

t IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUANDA, J.A., MWARIJA, J.A., And MKUYE, J.A.) CIVIL APPLICATION NO. 176 OF 2013 MOHAMED SALIM SAID ...................................................... APPLICANT VERSUS TANG GAS DISTRIBUTORS LTD ....................................... RESPONDENT (Application for striking out notice of appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Nyangarika, J.) Dated 13 th day of August, 2011 In Commercial Case No. 20 of 2011 RULING OF THE COURT 20 th September & 27 October, 2017 MWARIJA. J.A.: By a notice of motion lodged on 2/10/2013, the applicant brought this application seeking the following order:- "... that the Notice of Appeal filed on 1 (Jh day of September, 2013 by TANG GAS DISTRIBUTORS LIMITED, the Respondent, be struck out and for AN ORDER that Respondent pay the costs of this application for failure to take essential step, viz; the failure to serve a copy of the Notice of Appeal on the applicant or his counsel before, or within fourteen days after lodging the notice of appeal.... // 1

The application, which is supported by the affidavit of Mr. Kennedy Marco Fungamtama, the applicant's learned counsel, was brought under Rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The respondent did not file an affidavit in reply. On 20/9/2017 when the application was called on for hearing, the applicant was represented by Mr. Kennedy Fungamtama, learned counsel while the respondent, who was duly served on 29/8/2017 through Ngalo and Company, Advocates, did not enter appearance. In the circumstances, the learned counsel for the applicant was granted leave to proceed to argue the application in the absence of the respondent under Rule 63(2) of the Rules. Mr. Fungamtama who had earlier on filed his written submission in support of the application in compliance with Rule 106 (1) of the Rules, adopted the submission and prayed that the notice of appeal be struck out with costs. In his written submission, the learned counsel argued that the respondent, who lodged a notice of appeal against the decision of the High Court (Commercial Division) in Commercial Case No. 20 of 2011, did not serve a copy of that notice to the applicant within 14 days from the date of its lodgement as required under Rule 84 (1) of the Rules. He 2

contended that by failing to comply with that requirement, the respondent has failed to take essential step in the proceedings. Citing inter alia, the cases of D.P. Valambhia v. Transport Equipment Ltd [1992] TLR 246 and Francis Itengeja v. Kampuni ya Kusindika Mbegu za Mafuta Ltd [1997] TLR 148, Mr. Fungamtama prayed that the notice of appeal be struck out for the respondent's failure to take essential steps in the proceedings. Rule 84(1) of the Rules upon which the applicant has relied in his submission provides as follows:- •~n intended appellant shall, before, or within fourteen days after lodging a notice of appeal, serve copies of it on all persons who seem to him to be directly affected by the appeal; but the Court may, on an exparte application, direct that service need not be effected on any person who took no part in the proceedings in the High Court [Emphasis added.] In paragraph 4 of his affidavit, Mr. Fungamtama states as follows:- 3

"That, no action has been taken to serve a copy of the Notice of Appeal on the applicant or his counsel and more than fourteen days have lapsed after lodging the said notice of appeal and there is no application for extension of time to serve on the applicant the said Notice of Appeal now pending in Court. ✓ , As stated above, the respondent did not file an affidavit in rely. The facts as stated by the learned counsel are therefore, undisputed. As a consequence since Rule 84 (1) of the Rules provides in mandatory terms that after lodging a notice of appeal, the intended appellant must serve a copy of the notice to all persons who may be affected by the appeal, the omission amounts to a failure to take essential step in the proceedings. Failure to serve the applicant is thus a sufficient ground for striking out the notice of appeal. This is the position of the law as stated in the cases cited by Mr. Fungamtama. The cases interpreted Rule 77(1) of the Tanzania Court of Appeal Rules, 1979 (the Old Rules), now Rule 84 (1) of the Rules in which the period of service is now fourteen days instead of seven days provided for in the old Rules. 4

In the case of D.P. Valambhia v. Transport Equipment Ltd (supra), the Court held as follows on the omission to serve the respondent with a copy of the notice of appeal within the prescribed time. ''failure by the respondents to serve a copy of the notice of appeal on the applicant through negligence and/or inaction is a failure to take an essential step in the proceedings as required by Rule 77 (1)." On the effect of such non-compliance, the Court stated as follows in the case of Francis Itengeja (supra). "The failure to serve the applicant with a copy of the notice of appeal within 7 days as required by Rule 77 (1) and failure to lodge the appeal within 60 days of the notice as required by rule 83 (1) [now Rule 90 (1) of the Rules] were in the absence of any extension of time by the cou,t grounds which warranted the striking out of the notice of appeal." 5

On the basis of the above stated reasons, we are inclined to grant the prayer made by the learned counsel for the applicant. The notice of appeal is hereby struck out with costs. DATED at DAR ES SALAAM this 24 th day of October, 2017. B. M. LUANDA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. R PPEAL 6