Julius Singoyan Kuley vs Lazaro Karisiani (Arusha Civil Application No. 1 of 2013) [2014] TZCA 2285 (6 March 2014)

,. IN TME COURT OF APPEAL OF TJiNZANIA ATARUSHA (CORAM: BWANA, J.A., MANDIA, J.A., And OR.IYO,. J.A.), .. ARUSHA CIVIL APPLICATION NO. 1 OF 2013 JULIUS SINGOYAN KULEY ........................................ APPLICANT VERSUS LAZARO KARISIANI ............................................. RESPONDENT Application for striking out Notice of Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha (Mmila, J.) Dated 15 th day of December, 2008 In Civil Appeal No. 43 of 2007 RULING OF THE COURT 4 th & 11 th March, 2014 ORIYO, l.A. Before us is an application in the form of a Notice of Motion lodged · under Rule 89(2) of the Court Rules, 2009, (the Rules), by Julius Singoyan .· Kuley,· the applicant, for an order to strike out the Respondent's Notice of Appeal lodged on 18/12/2008, for failure to take essential steps. The basis of· his complaints can be found in the applicant's affidavit in sup.port 1

of tl-e .,Notice of Motion; in .partic;ular, paragraphs 4 and 5 which we ·ta.ke _: '(, ·. the libe_rty to reproduce:- "4.- That.I made a follow up to the High Court registry to cross check if the intended Appellant had filed his appeal and if he had been supplied with the aforesaid documents and the High Court staff assured me that he had taken those documents aforementioned immediately after the delivery of ruling of the High Court. 5. Tha it is now over one year since the High Court had given its decision the respondent has failed to take essen_tial steps by lodging his appeal to the appropriate registry within 60 days prescribed by law'~ The brief background to the application is as follows. The applicant wa·s successfully sued in tort by the respondent in the Resident Magistrates Court of Arusha in Civil Case No. 40 of 2006. The trial proceeded exparte . and the respondent was awarded, among others, the sum of shs 44~000,000/= as general damages for loss of reputation and 2 I J , j ! j -~~~ -• 1

, .•.. · emt;>a!·.rassment. suffered •. · ·rhe applicant appealed against the trial. court's· decision in Civil Appeal No. 43 of 2007 at the High Court of Arusha. The -, . ~ . ·: . High Court, in a judgment delivered on 15/12/2008, redu·ced the quanttim . . . . of general ·damages from shs 44,000,000/= to shs 2,500,000/= only. Surely, the respondent was not amused by the changed state of affairs. He immediately lodged a Notice of Appeal in this Court and an application in the High Court for leave to appeal to the Court. The latter application in the High Court was granted through a ruling delivered on 4/1/2012. The respondent resisted the application in this Court. On 8/2/2013, he lodged an Affidavit in Reply, wherein by paragraphs 3 and 4 thereof he attempted to explain away the delay in filing the appeal in this Court as follows:- ''Paragraph 3 That paragraph 4 of the applicant affidavit is partly disputed. That it is true I have not filed my appeal to the Court of Appeal of Tanzania due to the fact that I have not been supplied with all the necessary documents· in order to prepare the record of appeal. The applicant's claim 3 .. ,. • . .. . .· ,,.

tf!at immediately aftr- the - d!fvery. of the. :ruling I was handed all the documents have no truth. The Applicant .should be put to stri<;t proof of his claims. Paragraph4 That I admit that it is now over one year since the delivery of · the ruling. However ✓ I cannot prt;pare the record of appeal without being supplied with all ' the documents necessary for the preparation of record of appear~ When the matter was ·called on for hearing, the parties were unrepresented in that each appeared in person and each . briefly repeated his respective prayers as shown above. We inquired from the applicant on whether he was served with a copy of the· letter of the respondent addressed to the courts, asking to be supplied with the necessary documents for appeal puposes, in ters of rule 90(1) of the Rules. He replied in the affirmative·. 4 . - ' ! ./Li . '·-:·· 0

Rule 90(1) provides:.: . ''90.- -(1) Subject.·to· the provisions of Rule- 12i an appeal shall be instituted by lodging in the· appropriate registry, within sixty days of the date when the notice of appeal was lodged with - (a) A memorandum of appeal in quintuplicate; (b) The record of · appeal in quintuplicate; (c) Security for the costs of the appeal save that where an application for a copy of the 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 5

. ,< • delivery_ of that copy · to '-the apptf!llant . . .. ., f .· (2) An appellant shall not be entitled to rely on the exc.·eption to sub-rule {1.J unless his application for the copy _was in writing and a copy of it was served on the Respondent." [Emphasis ours] ~ · Indeed, the respondent informed the Court that he was yet to be supplied with _two sets of documents to enable him to duly comply with the conditions laid down in rule 90 (1) (supra) to institute the appeal. These documents were:- · (i} The Proceedings in Civil Appeal No. 43 of2007 and (ii} The Proceedings in Misc. Civil Application No. 111 of 2008. From the evidence on record and from the applicant's own admission before the Court, it is undisput~d that the respondent complied with the requirements under rule 90(1) and (2) of the Rules by .serving the 6

., \S. applicant with ·the copy o.f the,. letter asking ·for: the :.requisite documents .· • • • • • · I l • . from the High Court for appeal purposes. · In the circumstances, the respondent is entitled to the exception in sub-rule 90(1), having complied with sub-rule (2) of rule 90. In the event _and for the reasons stated we find the application to have been made witho'ut sufficient cause. We therefore dismiss it with costs for want of merit. DATED at ARUSHA this 6 th day of March, 2014. SJ. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this · a tru copy of t · 7