| dc.description | ISSA OMARY MAPESA VS. JUMANNE SEBARUA COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM (Ndika, Fikirini and Kihwelo JJ. A) CIVIL APPLICATION NO. 189/01 OF 2021.
(Appeal from the decision of the High Court of Tanzania (District Registry) at Dar es Salaam in Civil Appeal No. 202 of 2019 by Kakolaki J)
Civil Procedure and Practice- Submission- What is the legal status of facts stated in the submission which do not feature in the affidavit?
Civil Procedure and Practice- Notice of Appeal- What is the time limit of serving notice of appeal to the persons who will be adversely affected by appeal?
Civil Procedure and Practice- Notice of Appeal- What is the legal effect of not serving or serving notice of appeal out of time without the leave of the Court?
Civil Procedure and Practice- Notice of Appeal- What should the intending appellant do after lodging the notice of appeal?
Facts;
The fact triggered the rise of this application to strike out notice of appeal is that the applicant sued the respondent for breach of contract before the Resident Magistrates Court at Kisutu in Civil Case No. 188 of 2006. On 20th May, 2013, judgment was entered in the applicant's favour. Dissatisfied, the respondent unsuccessfully appealed to the High Court in Civil Appeal No. 202 of 2020. The respondent filed a notice of appeal on 24th July, 2020, at the High Court, intending to challenge the High Court decision.
On 26th October, 2020 the respondent served the applicant with the notice of appeal and an application for leave to appeal. The respondent did not apply, or if he did, then the applicant was not served with the letter to the Registrar applying for copies of the proceedings. After the expiration of the statutory period of sixty (60) days within which the respondent should have lodged a record of appeal and memorandum of appeal, which he had not, the applicant filed this application for striking out the notice of appeal on the ground that no essential steps required had been taken by the respondent and therefore no appeal lies against the applicant.
Held;
1. Submissions are not evidence but information expounding on the general features of the party's case. The Court restated this principle based what was decided in the case of Khalid Mwisongo v. M/S Unitrans (T) Ltd, Civil Appeal No. 56 of 2011 (unreported),
2. The intended appellant is required to serve notice of appeal before or within fourteen days (14) after lodging notice of appeal as stated in Rule 84(1) of the Court of Appeal Rules,
3. Failure to serve the notice of appeal in compliance with Rule 84 (1) of the Rules cannot be described otherwise but one of the grounds in failure to take essential step as envisioned under Rule 89 (2) of the Rules. The Court re-enforced its earlier decisions as stated in the case of D.P. Valambhia v. Transport Equipment Ltd. [1992] T.L.R. 264, Salim Sunderji, Capital Development Authority v. Sadrudin Shariff Jamal [1993] T.L.R 224 and John 6 Nyakimwi v. The Registered Trustees of the Catholic Diocese of Musoma, Civil Application No. 85/08 of 2017 (unreported),
4. The intending appellant is required to serve notice of appeal within the prescribed time under Rule 84(1). Then he is expected to lodge a record of appeal and memorandum of appeal within sixty (60) days, unless there is a letter written to the Registrar requesting to be furnished with the necessary documents and that has been served upon the respondent as per rule 90(1) and 90(3) of the Court of Appeal Rules. The consequence of serving the opposite party with the copy of the letter written to the Registrar, is to allow the intending appellant to take advantage and enjoy the exclusion of time provided under Rule 90 (1) of the Rules by being issued with a certificate of delay, which will allow filing the intended appeal.
Application granted and the notice of appeal was strike out with costs.
Statutory provisions referred;
1. Court of Appeal Rules, 2009 as amended, Rules 84(1), 89(2), 90(1) and 90(3)
Case laws referred to;
1. Khalid Mwisongo v. M/S Unitrans (T) Ltd, Civil Appeal No. 56 of 2011 (unreported)
2. D.P. Valambhia v. Transport Equipment Ltd. [1992] T.L.R. 264,
3. Salim Sunderji, Capital Development Authority v. Sadrudin Shariff Jamal [1993] T.L.R 224 and John 6 Nyakimwi v. The Registered Trustees of the Catholic Diocese of Musoma, Civil Application No. 85/08 of 2017 (unreported) | en_US |
| dc.description.abstract | 1. Submissions are not evidence but information expounding on the general features of the party's case. The Court restated this principle based what was decided in the case of Khalid Mwisongo v. M/S Unitrans (T) Ltd, Civil Appeal No. 56 of 2011 (unreported),
2. The intended appellant is required to serve notice of appeal before or within fourteen days (14) after lodging notice of appeal as stated in Rule 84(1) of the Court of Appeal Rules,
3. Failure to serve the notice of appeal in compliance with Rule 84 (1) of the Rules cannot be described otherwise but one of the grounds in failure to take essential step as envisioned under Rule 89 (2) of the Rules. The Court re-enforced its earlier decisions as stated in the case of D.P. Valambhia v. Transport Equipment Ltd. [1992] T.L.R. 264, Salim Sunderji, Capital Development Authority v. Sadrudin Shariff Jamal [1993] T.L.R 224 and John 6 Nyakimwi v. The Registered Trustees of the Catholic Diocese of Musoma, Civil Application No. 85/08 of 2017 (unreported),
4. The intending appellant is required to serve notice of appeal within the prescribed time under Rule 84(1). Then he is expected to lodge a record of appeal and memorandum of appeal within sixty (60) days, unless there is a letter written to the Registrar requesting to be furnished with the necessary documents and that has been served upon the respondent as per rule 90(1) and 90(3) of the Court of Appeal Rules. The consequence of serving the opposite party with the copy of the letter written to the Registrar, is to allow the intending appellant to take advantage and enjoy the exclusion of time provided under Rule 90 (1) of the Rules by being issued with a certificate of delay, which will allow filing the intended appeal.
Application granted and the notice of appeal was strike out with costs. | en_US |
