ZUFFER KAMARALI v YUNUS ELIAS 1988 TLR 170 (CA)

 

ZUFFER KAMARALI v YUNUS ELIAS 1988 TLR 170 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JA

22 September, 1988

Flynote

Court of Appeal Rules - No specific rule for withdrawing a notice of motion -

Invoking B provisions of Rule 3.

-Headnote

The advocate for appellant had filed a notice of motion asking the court for an order

of stay of execution of judgment in Arusha High Court Civil Appeal No. 39 of 1987 C

pending appeal to the Court of Appeal. On the day set for hearing the notice of

motion, the advocate for the appellant filed another application to withdraw his

Notice of Appeal. He argued that although there was no rule under the Court of

Appeal Rules which specifically provided for withdrawal of Notice of Appeal in civil

matters, the Court D could grant the application under rule 3(1) and (2)(a) of the

Rules.

Held: Where the appellant no longer wishes to proceed with his intended appeal, he

should be allowed to withdraw the notice of appeal. E

Case Information

Order accordingly.

No case referred to.

D'souza, for the applicant. F

[zJDz]Judgment

Kisanga, J.A.: Mr. D'Souza, the advocate for the applicant, had filed a notice of motion

(Civil Application No. 5 of 1987 - Zuffer Kamarali v Yunus Elias) asking this G Court

for an order of stay of execution of judgment in the Arusha High Court. Notice of the

intended appeal was duly given before the filing of the notice of motion.

On the day set for hearing the notice of motion, however, Mr. D'Souza had filed yet

H another application to withdraw his notice of appeal. Arguing in support of the

latter application, he stated that there was no rule under the Court of Appeal Rules

which specifically provided for withdrawal of notice of appeal in civil matters, but

submitted that the Court would be entitled to grant the application under r. 3(1) and

(2)(a) of the I Rules. The relevant parts of that rule say:

1988 TLR p171

KISANGA JA

(1) The practice and procedure of the court in connection with appeals and

intended A appeals from the High Court, and the practice and procedure of the High

Court in connection with appeals to the Court shall be as prescribed in these Rules,

but the Court may at any time, direct a departure from these Rules in any case in

which this is required in the interests of Justice. B

(2) Where it is necessary to make an order for the purposes of

(a) dealing with any matter for which no provision is made by

these Rules or any other written law; C

(b) ....

(c) .....

the Court may, on application or on its own motion, give directions as

to the procedure to be adopted or make any other order when it considers necessary.

D

Like Mr. D'Souza, I have not been able to discover any rule in the Court of Appeal

Rules which specifically allows the withdrawal of a notice of appeal in civil matters.

The nearest provision I could find is r. 95(1) which allows an appellant to withdraw

his E appeal any time after instituting the appeal but before it is called on for

hearing. However, it is apparent that that subrule could not apply here because no

appeal has been instituted in terms of r. 83. Nor could I make an order in terms of r.

84 (a) to the effect that Mr. D'Souza is deemed to have withdrawn his notice of appeal

because Mr. F D'Souza assures me that the specified period for instituting the appeal

has not run out in that the Deputy Registrar has not yet supplied him with a copy of

the proceeding which Mr. D'Souza applied for.

Yet I think it would be unfair to deny an appellant the right to withdraw his notice of

G appeal. To do that would amount to holding the appellant to the appeal against his

wish. That would not make sense, nor would it be just. In the circumstances I am

inclined to Mr. D'Souza's view that this is a fit case in which to invoke the provisions

of r.3 as set out above. In so doing I take the view that it is fair that where for one

reason or another H appellant no longer wishes to proceed with his intended appeal,

he should be allowed to withdraw the notice of appeal. It should be borne in mind

that it is the appellant himself who freely and voluntarily decided to file the notice of

appeal; it is only just that I he should be equally free to withdraw that notice. This

view would be in harmony with the

1988 TLR p172

provisions of r. 95(1) which, as stated above, permits an appellant to withdraw his A

appeal after instituting it but before it is called on for hearing. For, it would sound

almost absurd to say that a party cannot withdraw a mere notice of appeal but that he

can withdraw after he has done much more in the matter by taking steps to institute

the appeal itself. B

For these reasons I grant the application and order that the notice of appeal filed in

respect of the Arusha High Court Civil Appeal No. 39 fo 1987 be marked withdrawn.

With that, the notice of motion in Civil Application No. 5 of 1987 to this Court for

stay of execution pending appeal is also marked withdrawn. C

Order accordingly.

1988 TLR p172

D