Marco Mbuku vs Mohamed Ngaunje (Civil Application No. 142 of 2013) [2017] TZCA 1167 (9 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES.SALAAM (CORAM: MBAROUK, J.A., MUGASHA, J.A .• ANO MWAMBEGELE, .'J.A.) CIVIL APPLICATION NO. 142 OF 2013 MARCO MBUKU ••••••••.••••••••••••• lllil ■■••···························•········••········ APPLICANT VERSUS MOHAMED NGAUNJE ............................................... ii •••••••••••••• RESPONDENT [Application to strike out notice of appeal from the judgment of the High Court of Tanzania (Land Division) at Dar es Salaam] (Mansoor, J.) dated the 17 th day of September, 2012 in 5 th & 11 th October, 2017 MWAMBEGELE, J.A.: Land Appeal No. 69 of 2011 RULING OF THE COURT In the pre~ent application by a notice of motion taken out under, inter alia, Rule 89 (2) of the Tanzania Court of Appeal Rules, 2009 (hereinafter "the Rules"), the applicant Marco Mbuku who enjoys the noble servic;;es of Mr. At)don Rwegasira, learned advocate, seeks an order of the Court to strike out the notice of appeal filed by the respondent Mohamed Ngaunje against the decision of the High Court (Land Division) in Land Appeal No. 69 of 2011. The application is 1

supported by an affidavit deposed by Marco Mbuku; the applicant. No document In resistance has been filed by the respondent. When the application was called on for hearing on 05.10.2017, only Mr. Rwegasira for the applicant appeared. The respondent, despite being duly served with the notice of hearing by way of publication in two issues of the Mwananchi Newspaper; of 12 th and 23 rd September, 2017 following an order of the Court dated 03.07.2017, defaulted appearance. In the circumstances, upon Mr. Rwegasira's prayer, the Court ruled to proceed in the absence of the respondent in terms of Rule 63 (2) of the Rules. Mr. Rwegasira had earlier on filed written submissions in support of the application pursuant to Rule 106 (1) of the Rules which, together with the grounds in the notice of motion as well as the affidavit in its support, he sought to adopt as integral part of his submissions at the hearing. The learned counsel had nothing useful to add. Briefly stated, the background material facts to the present application, as can be gleaned from the notice of motion, the flanking affidavit as well as the written submissions thereof are as follows: the appellant lost in the suit he instituted against the respondent in the Ward Tribunal of Kunduchi. He 2

appealed to the District Land and Housing Tribunal where, despite allowing the appeal, the Chairman ordered a retrial. The retrial order irritated the applicant. Undaunted, he successfully appealed to the High Court (Land Division). The respondent was not happy with the decision of the High Court and thus lodged to the Court a notice of appeal on 12.10.2012 which was served upon the applicant on 19.10.2012; quite timeously. Upon receipt of the notice, the applicant lodged in the High Court (Land Division) a notice of address for service on 31.10.2012. It is the applicant's averment that after the lodgment of the notice of appeal, the respondent has failed to take essential steps in accordance with the law to institute his appeal. The applicant submits that the respondent ought to have taken essential steps including filing in the High Court (Land Division) an application for leave to appeal and an application for a certificate on a point of law in terms of subsections (1) and (2), respectively, of section 47 of the Land Disputes Eourts Act, Cap. 216 of the Revised-Edition, 2002 (hereinafter "Cap. 216''). The applicant submits that as at the date of filing the present application on 05.08.2013, the respondent had not filed such applications. 3 .. --- ·-------·- ----.--- ---·- ·-- ""' ------·-- .. - -- ·-- - -----~ - . .. .. -

The applicant also submits that in terms of Rule 90 (1) of the. Rules, the respondent ought to have instituted the relevant appeal within sixty days of the lodging of the notice of appeal which he had not yet done the moment the present application was filed on the said 05.08.2013. The applicant submits further that, by virtue of a proviso to Rule 90 (1) of the Rules, the Registrar is empowered to issue a certificate of delay if the intended appellant applies within thirty days of the impugned decision and a copy thereof served on the intended respondent. The applicant submits that the respondent, as at the date of filing the present application, had not yet applied for the documents for appeal purposes. In the circumstances, he submits, the respondent is not entitled to the benefits of the certificate of delay envisaged by the proviso to Rule 90 (1) of the Rules. To buttress this proposition, the learned counsel referred us to the case of Minister for Labour and Youths Development & Another v. Gasper Swai & 67 Others [2003] TLR 239. The applicant also filed a list of authorities which included the cases of Method Kimomogoro v. Board of Trustees of TANAPA, Civil Application No. 1 of 2005 and Samwel Kimaro v. Hidaya Didasi, Civil Application No. 20 of 2012 (both unreported) to support his application. . __ ..... --- ·-----·--·-·-··--·---····-·-·-- ---- ----· ---··- .. - - 4 ~ - ------·--- -·-----·-. --~--- - -·-- _ _. __ _

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• We have considered the arguments by the learned counsel for the applicant. The correct position of the law is, indeed, as submitted by Mr. Rwegasira for the applicant. The rest of this Ruling, endeavours to demonstrate why we agree with the learned counsel. At the outset, we hasten to restate what we stated in Asmin Rashidi v. Boko Omari [1997] TLR 146 and reiterated in Hassan Abdallah v. Tanzania Telecommunications Co. Ltd, Civil Application No. 176 of 2014 (unreported) that essential steps envisaged by the provisions of Rule 89 (2) of the Rules upon which the present application has been predicated, are those steps which advance the hearing of the appeal. The question which immediately comes to the fore in the present instance is whether the respondent has taken those steps. After lodging the notice of appeal, the respondent ought to have taken essential steps in advancing his intended appeal. Such essential steps, this 0eing a land matter, include filing in the -High Court (Land Division) an application for leave to appeal and an application for a certificate on a point of law in terms of subsections (1) and (2), respectively, of section 47 of Cap. 216. In Asmin Rashid (supra) we held, and so reiterated in Hassan Abdallah(supra) and Ezekiel Fanuel Mushi v. NBC Limited, Civil Application ·-·--· -·-· -- -- ------------- ---- --·---------------- ----·-----·-·-·-··- -------·--·--·--------· 5 ,.---·•·····---··- - -·· ··••·. -------• ---······ .... - ~

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C I I f I I • No. 4 of 2015 (unreported) that one of the essential steps in advancing the hearing of the appeal (where leave is necessary) is to apply for leave to appeal. And we add here that in a land matter originating from the Ward Tribunal like the present, applying for a certificate on point of law also constitutes an essential step in advancing the hearing of the appeal. The record before us does not show that the respondent has taken such essential steps up to 05.08.2013when the present application was filed; about ten months after he lodged the notice of appeal on 12.10.2012. Likewise, pursuant to Rule 90 (1) of the Rules, the respondent ought to have instituted the relevant appeal by lodging a memorandum of appeal as well as the record of appeal within sixty days of the lodging of the notice of appeal. That, again, as far as the record before us has it, the respondent had not done up to the moment the present application was filed on 05.08.2013. As rightly submitted by Mr. Rwegasira, the respondent cannot enjoy the exclusion of time provided by the proviso to Rule 90 (1) of the Rules because, as far as the record before us has it, he did not apply to be supplied with the requisite documents for appeal purposes or did not apply for them within the prescribed time and copy and serve the applicant with such a letter. It may not 6

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• be irrelevant to underline at this juncture that the requirement to apply for documents for appeal purposes under Rule 90 (1) and (2) of the Rules has been construed by the Court to constitute two parts: first, the letter applying for copies of documents for appeal purposes must be copied to the other party; the intended respondent. Secondly, it must be served on the intended respondent- see: Mkombozi Centre for Street Children & 2 Others v. The Hon. Attorney General, Civil Appeal No. 30 of 2014 (unreported). It is no gainsaying, therefore, that the Court attaches sufficient importance to the process and sufficient knowledge of that process by the intended respondent; in this case the applicant. In the case at hand, the letter applying for the documents of appeal ought not only to have been copied on the applicant but also served upon him. On the record before us, no such letter was written by the respondent and, therefore, there was nothing to copy and serve upon the applicant. In sum, we accede to Mr. Rwegasira's submissions that the respondent has failed to take essential steps in advancing the intended appeal. The respondent has not done anything to advance his intended appeal ever since he filed the notice of appeal on 12.10.2012. After he filed the said notice, as per record before us, the applicant, it appears, sat back and relaxed, thereby 7

• inhibiting the applicant to enjoy the fruits of his litigation. This state of affairs the Court cannot condone. For the reasons assigned, we are of the considered view that the present application is meritorious and allow it. The notice of appeal filed by the respondent on 12.10.2012 against the decision of the High Court (Land Division) in Land Appeal No. 69 of 2011 is accordingly struck out with costs to the applicant. Order accordingly. DATED at DAR ES SALAAM this 9 th day of October, 2017. M.S. MBAROUK JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of A.H. Ms mi DEPUTY REG TRAR COURT OF APPEAL 8