Civil Reference No. 7 of 2004
The applicant, Urban J. Mtui, along with a co-plaintiff who later died, were former employees of the first respondent (Commissioner General, Tanzania Revenue Authority). They successfully sued their employer in the High Court (Civil Case No. 365 of 2001), and on 16.08.2013 Mwaikugile, J. awarded the applicant over Shs. 383 million with interest and costs. The respondents did not file a notice of appeal at the time. About three years later, in 2016, when the applicant began execution proceedings, the respondents applied to the High Court for extension of time to lodge a notice of appeal, which was granted on the ground of illegality of the decision. Within the extended period, the respondents prepared a notice of appeal (22.09.2016) and lodged it on 27.09.2016, but it erroneously referred to 'Civil Case No. 365 of 2013' instead of 2001, and was filed in the Land Division registry of the High Court rather than the registry that decided the case. Similarly, a letter dated 21.09.2016 requesting proceedings and other documents for appeal purposes referenced the wrong case number and was addressed to the Main Registry of the High Court rather than the Dar es Salaam Zone registry that heard the matter. The respondents thereafter took no further steps, prompting the applicant to apply under rule 89(2) of the Tanzania Court of Appeal Rules, 2009, to strike out the notice of appeal for want of essential steps.
Whether the respondents failed to take essential steps towards instituting their intended appeal, such that the notice of appeal ought to be struck out under rule 89(2) of the Tanzania Court of Appeal Rules, 2009. A subsidiary question was whether the erroneous reference to 'Civil Case No. 365 of 2013' (instead of 2001) in the notice of appeal and the letter requesting documents was a mere clerical slip of the pen or a deliberate/negligent act indicating lack of genuine intention to appeal.
The applicant, through Mr. Kariwa, argued that the respondents had not taken essential steps in furtherance of the intended appeal because both the notice of appeal and the letter requesting documents referred to a non-existent case (Civil Case No. 365 of 2013), and that the chronological conduct of the respondents showed no genuine interest in appealing; hence the notice of appeal impeding execution of the decree should be struck out with costs. The respondents, through Ms. Kyamba, contended that the reference to 2013 instead of 2001 was a mere slip of the pen, that they remained genuinely interested in pursuing the appeal, and that having applied for the necessary documents they had no further legal duty to follow up, relying on the Court's earlier decisions in Transcontinental Forwarders Ltd v. Tanganyika Motors Ltd and Saleh Abdi Mohamed v. Katibu Baraza la Mapinduzi, which held that an applicant for documents for appeal purposes need not make further follow-up once the request is lodged.
The Court of Appeal held that the respondents' errors were not mere clerical slips but reflected a pattern of negligence and lack of genuine intention to prosecute the appeal. The Court noted several irregularities: the three-year delay before seeking extension of time; the repeated misreference to 'Civil Case No. 365 of 2013' in both the notice of appeal and the document request letter; the lodging of the notice of appeal in the Land Division registry despite the case having no connection to land matters; the letter for documents being addressed to the Main Registry rather than the Dar es Salaam Zone registry that decided the case; and the respondents' failure to file an affidavit in reply for over three years after service of the application. The Court found the cumulative effect of these acts demonstrated the respondents were not genuinely interested in instituting the intended appeal. It held that essential steps under rule 89(2) must relate to the correct case and be directed to the registry that passed the impugned judgment; steps directed to the wrong registry or referencing the wrong case number do not qualify as essential steps. The Court also held that the authorities relied upon by the respondents (Transcontinental Forwarders Ltd and Saleh Abdi Mohamed) were distinguishable and, in any event, Transcontinental Forwarders Ltd was no longer good law given rule 90(5) of the current Rules, which imposes mandatory timelines and obligations on both the Registrar and the appellant regarding collection of proceedings. Consequently, the Court granted the application and struck out the notice of appeal lodged on 27.09.2016. Given the employer-employee nature of the dispute, no order as to costs was made.
This ruling clarifies and reinforces the principle under rule 89(2) of the Tanzania Court of Appeal Rules, 2009, that an intending appellant must take genuine and correctly directed essential steps toward prosecuting an appeal after lodging a notice of appeal, failing which the notice may be struck out. It underscores that steps taken in relation to the wrong case number or lodged in/addressed to the wrong court registry do not constitute essential steps for purposes of the rule. The decision also signals that the earlier authority in Transcontinental Forwarders Ltd v. Tanganyika Motors Ltd, which allowed an appellant to simply request documents without further follow-up, is no longer good law in light of rule 90(5), which imposes mandatory duties on both the Registrar and the appellant regarding timely preparation and collection of proceedings. The case thus contributes to the jurisprudence on diligence required of intending appellants and the practical application of procedural rules governing notices of appeal in Tanzania.
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