Civil Reference No. 7 of 2004
This was an application before the Court of Appeal of Tanzania seeking an order to strike out a notice of appeal that had apparently been lodged in relation to a decision of the High Court (Bubeshi, J.) dated 29th February 2000 in Civil Case No. 160 of 1997. The application was brought jointly in the names of Kishimba (T) Traders Ltd (first applicant) and Jumanne Kishimba (second applicant) against the Tanzania Revenue Authority (respondent). The application was founded on two grounds: (i) that the record of appeal did not contain a copy of the notice of appeal, and (ii) that the record of appeal did not contain the decree of the High Court. When the matter came up for hearing, counsel for the respondent, Mr Lugaiya, readily conceded that these omissions existed and asked the Court for leave to return to the High Court to rectify the defects in the record.
The central issues for the Court's determination were: (1) whether the notice of appeal (and the associated record of appeal) was fatally defective for want of a copy of the notice of appeal and the decree, warranting that it be struck out; and (2) whether the first applicant, Kishimba (T) Traders Ltd, was properly before the Court as a party competent to bring the application, given that it was not shown to be a party to the underlying proceedings.
The applicants argued, in effect, that the respondent's record of appeal was incurably defective because it lacked essential documents — a copy of the notice of appeal and the decree — and that this justified striking out the notice of appeal. The respondent, through counsel, did not contest the factual basis of these omissions; rather, Mr Lugaiya conceded the defects but urged the Court to allow the respondent an opportunity to return to the High Court to cure them, implicitly arguing that the defects were curable and did not warrant an outright strike-out with adverse consequences to the respondent. No submissions are recorded as having been made by the respondent, or considered by the Court, regarding the competence of the first applicant to bring the application; that issue was raised by the Court itself.
The Court struck out the appeal, but made no order as to costs. In its reasoning, the Court accepted the respondent's concession that the record of appeal was missing the notice of appeal and the decree, both of which are essential documents. However, the Court also observed, on its own initiative, that the first applicant, Kishimba (T) Traders Ltd, was not a party to the proceedings and therefore could not properly maintain the application. Having found defects attributable to both sides — the respondent's incomplete record and the first applicant's lack of standing to bring the application — the Court characterised these as "mutual defects" for which both parties had to "share the fruits." Consequently, rather than granting either party's request outright (striking out only the respondent's notice of appeal, or allowing the respondent to cure its record), the Court struck out the appeal altogether, and, in light of the shared responsibility for the procedural failings, declined to award costs to either side.
This short ruling illustrates the Court of Appeal of Tanzania's strict approach to compliance with procedural requirements for records of appeal, particularly the necessity of including the notice of appeal and the decree. It also underscores the Court's willingness to raise, sua sponte, questions of standing or proper party status even where not argued by the parties, and to treat such defects as equally fatal to the applicant's position as the record defects were to the respondent's. The case demonstrates that where both sides to an application are shown to have procedural shortcomings, the Court may resolve the matter by striking out the proceeding entirely while withholding costs from either party, reflecting a balanced approach to shared procedural fault rather than penalising only one side.
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